In the face of Trump’s charges of a “rigged election,” Republican leaders must defend our system.
The worst presidential election in modern American history is careening toward an outcome that, with each passing hour, seems more and more inevitable. But not because it is rigged.
Over the past 15 years, as a lawyer practicing campaign finance and election law, I have represented Republican candidates and conservative organizations in the political process, including in multiple close elections, recounts, and election law disputes. I have investigated numerous reports of election fraud: from missing voter registers, to voting machines that were removed from polling places while elections were in progress, to polling places at which it appeared that dozens of voters were voting every 10 seconds.
I believe in election fraud — voter impersonation, double voting, absentee ballot fraud, ineligible voter registrations. It all happens. How much, to what effect, and what should be done about it are subjects of great debate. But it does happen — certainly not anywhere even remotely near the extent that Donald Trump is contending it does — and so we should guard against it.
None of that, however, means our system of voting is rigged. It is not.
While government administrators plan our elections, ordinary citizens actually run them. In every election, these ordinary citizens make mistakes, lots of them, in fact. And on the other side of the check-in table are voters, some very small fraction of whom attempt to cheat, and an even smaller fraction of whom probably succeed.
But this does not mean that the election is rigged. To the contrary, our election laws anticipate human error and cheating, and guard against them at multiple levels. The result is a system of voting that is one of the cleanest and best in the world — in which all citizens should have faith and confidence.
The process is public
To begin, American elections are held in public places — in open rooms such as cafeterias, gymnasiums, community centers, and other event spaces — and in plain view of all assembled. Unlike in some other countries, there are no back rooms, secret doors, or hidden hallways where “the real election” happens. In American elections, ballots, voting machines, and other election materials and equipment come into the polling place under lock and seal, remain in the room throughout the day, and are not removed until the election is over, when they are again locked and sealed against tampering.
Second, private citizens, not government bureaucrats, serve as the “clerks,” “inspectors,” “officers,” or other election officials who run our polling places and conduct the voting. They check voters in, confirm their IDs in states where IDs are required, and keep detailed records about the election.
Importantly, most state laws permit local political parties to appoint or nominate these officials, and require a roughly even partisan balance between them, so that each political party is working alongside and watching the other.
Of course, there are polling places where partisan balance among election officials is not possible. But the law also permits parties and candidates to send poll watchers into each polling place to stand over the election officials and monitor them as they work — extra eyes on the process and another layer of protection against fraud.
These party poll watchers can challenge the conduct of the election by pointing out errors and irregularities to the election officials and asking to have them corrected. And if election officers refuse to correct errors, party lawyers are standing by — sometimes on site, other times via a special hotline — to intercede with state election administrators and courts if necessary.
The difference between poll watching and voter intimidation
The poll watchers are different from the supporters Donald Trump is encouraging to show up at polling locations “in certain places” to watch what happens. Poll watchers should be, and most often are, appointed, trained, and credentialed. They learn how an election is supposed to be conducted, know what to look for, and understand the importance of conducting themselves appropriately in the polling place so as not to intimidate voters or disrupt voting.
Anyone else who appears at a polling place to attempt to get close to voters who look like they “can’t speak American” in order to “make them a little bit nervous” is most likely going to be removed and arrested. Most states permit only voters, election officials, and credentialed poll watchers to remain in the polling place during voting hours. In the few states that allow any member of the public to observe the election, public observers will not be permitted to get close enough to voters or election officials to do what some Trump supporters have suggested they intend to do.
Next, our elections are conducted on equipment that has been tested, in a public proceeding, that is observed by party and candidate representatives. Following testing, voting equipment is locked and tamper-sealed, and then keys to the voting equipment are locked and sealed separately.
On top of that, voting machines are equipped with multiple interconnected counters — one that advances with every vote that is recorded on a machine across every election it services, and another election-specific counter that advances with each new vote in an election. These counters advance together and, combined with records of how many people voted in each election, make it impossible to add or remove votes secretly. Counter numbers are recorded each time the machine doors are opened, and candidate and party representatives get to observe and cross-check those counters — at testing, before polls open, and after they close.
There are multiple, overlapping systems of oversight
When voting is complete, election officials count votes and tally results. Candidate and party representatives observe this process. Following the election, there is a public canvass at which officials open up the election materials — including election night tally sheets, machine printout tapes on which votes for all candidates in the election are recorded, and provisional ballots — and double-check the election results.
This canvass is a public proceeding that is conducted by the same ordinary citizens who ran the election, drawn again from the lists of appointments or nominations provided by local political party officials. And just as on Election Day, these representatives can observe the work of the canvass officials and object to errors and improper procedures.
Throughout this entire process, the election officials keep detailed records — who voted, when (early, absentee or Election Day), where (by mail or in person), and by what method (on paper, by optical scan ballot, or on a touchscreen), and how many people voted overall. After the election, these records are open to public inspection. Anyone who knows what they’re doing can reconstruct the entire election and reveal any errors and irregularities that slipped through the process despite all of these safeguards, checks, and double-checks.
The system takes the possibility of human error into account
On this point, there is human error in every election — a lot of it, actually. In a precinct of several hundred voters, election officials might forget to check off three or four voters who voted. In the crush and pressure of election night, officials sometimes add votes incorrectly, or award one candidate’s votes to the other candidate and vice-versa. Our election laws anticipate these types of errors and are designed to catch and fix them.
There is attempted cheating too — and some very small fraction of it probably succeeds. But it is important to distinguish between cheating, which is an individual or group effort, and a rigged election, which is systemic. To claim that an election is rigged is to allege that the outcome of the election has been predetermined. I believe that people probably attempt to cheat in virtually every election, and the law believes it, too. That is why the law provides for partisan poll watchers to deter it and to catch it. Just because some people may be — and, in my view, undoubtedly are — attempting to cheat does not mean that our voting system is rigged. It is not. To the contrary, it is designed to prevent it.
So the election is not rigged. In fact, it’s anti-rigged. To rig an election, you would need 1) technological capabilities that exist only in Mission Impossible movies, plus 2) the cooperation of the Republicans and Democrats who are serving as the polling place’s election officials, plus 3) the blind eyes of the partisan poll watchers who are standing over their shoulders, plus 4) the cooperation of another set of Republicans and Democrats — the officials at the post-elections canvass, plus 5) the blind eyes of the canvass watchers, too.
Then you’d still have to Jedi-mind trick lawyers, political operatives, and state election administrators, all of whom scrub precinct-level returns for aberrant election results and scrutinize any polling place result that is not in line with what they would have expected based on current political dynamics and historical election results.
For all of these reasons, when Donald Trump implies that his or her followers need to take the law into their own hands on Election Day, he is horribly manipulating them — inciting them to disrupt the election, and setting them up to break laws and be arrested. Which may be exactly what he wants.
This doesn’t mean we shouldn’t watch the election. We absolutely should. The system depends on it. But poll watching means signing up, getting trained, understanding the election process, and conducting yourself appropriately on Election Day. It doesn’t mean standing menacingly in and around a polling place. That’s not poll watching; that’s voter intimidation.
So as Donald Trump claims that the election is rigged, Republican leaders and lawyers should speak out against this fantastical nonsense. Public faith and confidence in our voting system and in the integrity of our elections is foundational to the legitimacy of our government. When a presidential candidate — cravenly, disingenuously, in this case — undermines that, he also undermines legitimate efforts to recruit and train election officials and poll watchers to ensure that this election is free, open, fair, and honest.