Aziz Huq: Short Cuts

Aziz Huq

On 13 August, Donald Trump’s paper ballot for the Republican Party primaries in Florida arrived at the offices of the Palm Beach County supervisor of elections; it was the second vote he had cast by mail this year. America’s many elections, including the House and Senate races, are thoroughly local affairs. Each state has its own election rules, and a county or a municipal clerk is usually responsible for distributing and counting the ballots. It’s hard to overstate how much variation this creates. In Wisconsin, where I’ve canvassed for many years, there are more than 1900 municipal and county clerks. Driving from Kenosha to Racine to Janesville to Milwaukee, I’m conscious that the rules for early voting, absentee ballots, drop boxes (where you put your completed postal vote) and election timetables change every few miles. This fragmentation makes it hard for anyone, even a president unwilling to countenance his party losing, to rig election outcomes. But localisation also creates problems. Not only does it mean that voting rules turn on the quiddities of the local clerk. It also throws up obvious obstacles for those working far from home when it’s time to vote – because they are planning a state visit by the Chinese president, say.

For the first seventy years of American elections, voting was done in local meetings and the ballots were often filled out in public. During the war of 1812, Pennsylvania and New Jersey allowed voting by mail. In 1862, Wisconsin and Minnesota, followed by other states in both the North and South, permitted postal votes from soldiers fighting in the Civil War. By 2024, about a third of voters were using them. Despite this historical pedigree, and his own use of the system, Trump constantly calls this method ‘inherently corrupt’. He has also claimed that banning it would ‘guarantee the midterms’ for his own party (a higher proportion of Democrats vote by mail). In an executive order in March, he directed the US Postal Service to design standard envelopes for these ballots, each with a unique barcode for voters whose citizenship had been federally verified. He also directed the homeland security secretary, Markwayne Mullin, to make a list of ‘confirmed’ citizens eligible to vote in November’s midterm elections. This list, the government has said in litigation, is to ‘be used solely to facilitate’ the criminal prosecution of local officials alleged to have allowed non-citizens to vote.

Trump’s order conjures up the threat of a sinister cabal of non-citizens trying to undermine American democracy one vote at a time. As evidence of such schemes, the Department of Homeland Security claimed that 15,903 aliens were registered to vote in Nevada. Pressed by the state administration to identify these people, Mullin’s staff produced a list of 185 names. Nevada’s election authorities demonstrated that all were US citizens. But the spectre of these illegitimate voters is still useful. It deflects attention from the real risk of insiders bending or breaking rules to their own political advantage, and even offers an excuse for such chicanery.

To no one’s surprise, the Postal Service has struggled to produce a new nationwide system that verifies citizenship, matches it to individual states’ voter files and displays the matches in the form of a barcode on an actual envelope. A Postal Service whistleblower told Congress that the agency was cutting corners to get the system operational before the midterms: it was planning to use a design that batched received ballots by the tens of thousands and then chucked out whole bundles if a single barcode failed. As anyone who’s struggled at a supermarket self-checkout knows, barcode scanners aren’t always reliable.

On 14 September, a split Supreme Court judgment ordered the Postal Service not to use the new envelopes. When I spoke to the Washington state attorney general, Nick Brown, who led the lawsuit against the federal government, he was pleasantly surprised by his victory. The Supreme Court has not covered itself in glory when it comes to standing up to Trump. The consequences of relenting this time would have been immediate. In Washington, voting by mail is nearly universal, as it is in Oregon and Utah, so the order would have created turmoil. Since it declined to check citizenship using the unreliable federal database, the state couldn’t issue the approved envelopes, and would have had to implement in-person voting almost from scratch. Still, Brown cautioned, the court’s ruling was only a preliminary one and froze only part of the March order. Indeed, a little more than a week later, the court temporarily lifted a ban on the rollout of the Department of Homeland Security’s ‘confirmed’ citizenship database. State officials can now use this information to purge their registration rolls. Federal law prohibits last-minute ‘systematic’ purges of voters, but the court nevertheless suggested that the list could be used for ‘individualised’ purges, though there is no clear law on the distinction.

Such purges would be the responsibility of the state and local officials who run elections: building and trimming lists of voters; receiving and counting ballots; and tallying results. At least 94 of these officials have publicly endorsed Trump’s false claim that he won the 2020 presidential election. There’s good reason to think that many of them ran for office motivated by a determination to ‘stop the steal’ in November and again in 2028. Purges offer a relatively targeted way to get rid of some voters. But these officials can also make use of more indiscriminate tools.

State law generally requires each county or municipality to count the votes after the polls close and then to certify the results. After certification, results from counties and cities are tallied to determine who won a House district or a state-wide Senate seat. State officials then certify these results and transmit them to the clerk in the House of Representatives or the president of the Senate. Until now, certification has been a formality. But what happens if a local official refuses to certify the result, citing spurious allegations of fraud? There’s little historical precedent, but in July 2024, the five-member Board of County Commissioners in Washoe County, Nevada, voted three to two against certifying the results of primaries in the city of Reno and its surrounding area. One of the Republican commissioners, Clara Andriola (bizarrely, a candidate herself in one of the primaries), spoke vaguely of unspecified ‘hiccups’ in the election to explain her refusal. She later switched her vote, allowing the results to be certified. The local district attorney, she explained, had given some ‘clarifying direction’, to the effect that the refusal to certify can result in criminal prosecution.

There are many reasons a cloud of uncertainty might form over the certification of results from a county or municipal precinct, providing cover for a local official to follow Andriola’s path. In 2024 in Washoe County, Robert Beadles, a wealthy Trump supporter, spent $150,000 promoting claims of impropriety. After a public meeting dominated by constituents howling fraud and demanding a hand recount, the Washoe commissioners decided not to certify the results. Of course, this method is itself far from foolproof, especially when used for an electorate the size of Washoe’s, with more than 300,000 registered voters. An MIT study found that counting by hand has an error rate of about 8 per cent, which is larger than the margin of victory in many states – and that is if it’s done in good faith.

There are other ways in which certification may be impeded. If any local election offices suffer cyber attacks in November, it may be the indirect result of decisions in the Beltway. The federal agency that offers cybersecurity support has lost a third of its expert staff, with 2020 election deniers appointed to senior positions, and has largely halted election security work since Trump’s victory. It’s also possible that the government could intervene directly. In January, the FBI served a search warrant at an election office in Fulton County, Georgia, seeking voting records from the 2020 elections. The search made national news when the then director of national intelligence, Tulsi Gabbard, turned up, ostentatiously ringing the White House – she didn’t get through at first – as boxes of ballots were being hauled away. But the spectacle of Gabbard cosplaying a cop was less important than the simple fact of the search: it was the first time federal investigative powers have been used against state officials to seize election records. A seizure of ballot papers while counting is in progress would all but guarantee a delay in certification. Many states, however, also require by law that certification is complete before results are transmitted to Congress. Politicians and voting rights groups have been fretting about the risk that Mullin or the director of the FBI, Kash Patel, will station armed personnel at polling locations. They haven’t been as worried about search warrants. But while armed officers at polling stations would cause a temporary disruption, the targeted use of search warrants could delay the results from a whole county or city.

All this raises the question of what happens if there is no certified winner in a race, or if there are competing claims as to the winner of a certain county, and hence a congressional district or Senate seat. The Senate operates as a ‘continuing body’ – with only a third of its members up for election every two years – so the president and senators who remain in office would answer the question there. But the 119th House of Representatives dissolves in the middle of December and the 120th is not formed until 3 January next year. If there is a contested certification, it is likely to happen in the fortnight when the House does not exist. At that point, a federal statute provides that the task of figuring out who has been ‘regularly elected in accordance with the laws of their states respectively’ falls to a minor bureaucrat called the clerk of the House. The present clerk, Kevin McCumber, a former sheriff’s dispatcher from Germantown Hills, Illinois, is well respected. He gained the office under the Republican speaker Kevin McCarthy, but had also served under the Democrat Nancy Pelosi. McCumber, however, could be fired at any time by the current speaker, the oleaginous MAGA acolyte Mike Johnson. Johnson could decide to exercise this power on 17 December, the day before the House dissolves, if local officials in Texas, Florida and Iowa have held up the certifications of enough votes for the House seats in those states to remain in flux. All three states have Republican governors and attorney generals who are unlikely to clamp down on rogue local officials. On the contrary, the state officials are likely to stoke denialist fervour.

Here, there is a historic precedent. In December 1839, the clerk of the House received competing certifications for five of the six New Jersey seats. Allegations of illegal voting led local officials to put forward five Whig Party candidates to the state government. The governor, himself a Whig, endorsed these certifications, affixing to them the ‘broad seal’ of the state. New Jersey’s Democratic secretary of state naturally opposed this decision, and certified a slate of five Democrats instead. The clerk of the House, a staunch Jacksonian Democrat called Hugh Garland, declined to seat the five Whigs, even though New Jersey law said that the governor’s decision was final. This was hardly a surprise. A week earlier, the New-Yorker had reported that Garland ‘will take the responsibility of reading from a newspaper a list of the claimants from New Jersey, instead of the returned Members’. The New-Yorker’s hope that ‘better councils’ would prevail was disappointed. Yet Garland averred his neutrality, and proclaimed that his was the best path towards avoiding ‘party advantage’. Several days’ angry debate ensued. After much ‘confusion and noise’, the official congressional record reports, the House allowed the Democratic candidates to take the five contested seats. Garland’s plan to give the seats to his political allies had worked, in the short term at least: the Whigs won the House in 1840 and gave him the boot.

The so-called Broad Seal War of 1839 was not the last time a clerk of the House would try to put his pals into office. Twenty years later, the clerk was a pro-Union Tennessean called Emerson Etheridge. When the Republicans backed Lincoln’s Emancipation Proclamation, Etheridge soured on his former allies and conspired with the Democratic leader of the House, Samuel ‘Sunset’ Cox, to ensure Republican losses when the House which in theory had been elected more than a year earlier – though elections in some rebel states had taken place much more recently and some states hadn’t voted at all – was finally seated in December 1863. But the Republicans caught wind of Etheridge’s plan. Lincoln’s advisers wrote that he was ‘not inclined to rely exclusively upon moral force’, suggesting a willingness to send troops to the House to thwart Etheridge. One account has Lincoln proclaiming: ‘If Mr Etheridge undertakes revolutionary proceedings, let him be carried out on a chip, and let our men organise the House.’ In the event, the Republicans were able to force a procedural vote and prevent their allies from being excluded. The clerk was defeated, but his failure is cold comfort: the discomfiting precedent of a president threatening to send troops to Capitol Hill to ensure a ‘proper’ vote count remains. A September poll found that a majority of Americans either didn’t expect this November’s elections to be free and fair, or weren’t sure they would be. It is hard to disagree.

Send Letters To:

The Editor London Review of Books, 28 Little Russell Street London, WC1A 2HNletters@lrb.co.uk Please include name, address, and a telephone number.