Our November Nightmare
Will there be militias on the street demanding proof of citizenship for people to vote?
It’s hard to know which prospect to dread more: that Donald Trump could win this November, or that he could lose and somehow change the outcome, as he accused Joe Biden of doing in 2020. The Times has reported that Republicans are preparing an army of 100,000 lawyers and activists to “monitor” the vote. The Democrats–and the small d democrats–have an army of their own. I spoke recently to Trevor Potter, founder and president of the Campaign Legal Center, which advocates for voting rights and fair elections through litigation and lobbying, what dangers he saw and what actions he and others were taking to counter them. A member of that noble remnant known as moderate Republicans, Potter is very much a small d democrat..
I have abbreviated Potter’s comments and slightly re-written my own questions to make them sound coherent.
JT: When you think about all the threats that are out there, whether AI deepfakes or voter intimidation or the intimidation of election workers, what is the one that stands out as the most worrisome to you?
TP: I think it’s the lack of confidence in the validity of election results from a significant portion of the electorate. If you look at surveys of who thought the election was stolen [in January 2021], it’s significantly larger today as a fraction of the Republican party. The polling numbers put it at 70 percent. You can’t have a successful representative democracy if people think the elections aren’t legitimate. That’s Russia.
JT: That’s the long-term threat. Short term, what is your nightmare scenario? Is it a yet worse replay of January 6 should Trump be declared the loser?
TP: There are lots of nightmare scenarios. There could be actual violence on Election Day. We didn’t have that in 2020. Do I think it’s likely? It depends on what’s going on and who’s giving instructions. Just in a hypothetical, if you had a presidential candidate who said, “We have information that the election has been stolen or will be stolen tomorrow in Detroit and Philadelphia, and I call on all patriotic American to turn out and protect the election and make sure that illegal voters are not turning up in these polling places,” what does that give you? We’ve never had that before. Would you find militias out on the street demanding proof of citizenship for people to be allowed to vote? And what would be the result of that? Do you have pitched battles in the street? And that’s before you get to the counting issues.
JT: Less apocalyptically, what about restrictions on the ballot? What do you foresee in the six or seven states that are in play?
TP: Florida has issues of broad mass challenges to voter registration that right-wing groups are doing. Georgia, North Carolina, there are battles in both of those places where the legislature is trying to make it harder to vote. Arizona is a complete battleground between the legislature and the Governor, who is a Democrat. In Nevada, there are counties where people say the voting machines have been seized by aliens or controlled by space satellites and therefore we have to have hand counts, which is illegal under state law.
JT: The CLC can contest these issues in court?
TP: We have a broader role than that. In Pennsylvania, we’ve been working with legislators to change the law [preventing early votes from being counted until after all Election Day votes have been tabulated] and working with in-state groups to encourage the legislature to do that. In other states, like Michigan, we worked with the majority in the state legislature, because they have a new majority after the fair maps they got in their latest redistricting process because CLC fought in three different court battles to defend the initiative that we had been involved in drafting to give Michigan a fair map.
JT: Are there states where the chief election official is now a party official but used to be nonpartisan?
TP: We definitely dodged a bullet in 2022. There were lots of election-denying candidates for secretary of state in states like Pennsylvania and Arizona and Nevada where there were going to be close contests. And those election deniers lost--and it appears they lost because they were elect-deniers. There are very few of the battleground states that have an avidly partisan election figure; Ohio is one that does. What I think I worry about more is the less visible ones at the local level where there has been an active campaign by people like Steve Bannon and others to infiltrate election-deniers into local voluntary positions, into the local election boards. There are non-profits tracking this and trying to come up with lists of people who hold office who in the past were election deniers. Maybe half the election officials in the country are Republicans. Are they going to enable the election deniers?
JT: You gave testimony to Congress last year on AI deepfakes. You called for legislation, which so far as I know has made no real progress.
TP: There’s just been a little movement. Senator [Amy] Klobuar says there’s going to be a markup of two bipartisan bills in her [Judiciary] committee. We don’t know what the legislation is going to be but what we have favored and talked to the committee about is that you want to make it illegal to present a candidate’s image having them say something they didn’t say, or do something they didn’t do, and then you want disclosure so that the viewers understand that what they’re watching has been altered. When I testified at the hearing I was very disappointed that the Republican members of the committee who spoke all seemed to oppose the legislation on the grounds that it was interfering with private business or it was interfering with an exciting new technology. There’s no good reason for candidates of either party to think that deepfakes are helpful to them. They may well be the target of them.
JT: What’s your sense of their readiness of the tech platforms to take action in the face of an onslaught of what could be very sophisticated Russian or Chinese fakes?
TP: They are somewhat back on their heels on the subject. It costs a lot of money to do this, and they’re cutting back. They find themselves caught in this partisan crossfire where conservatives are claiming that they’re taking down conservative content, and I think that’s having a chilling effect. I would say there’s going to be less willingness to monitor this and take down things as the threat of falsehoods and misinformation is growing. I think there’s a risk they’re going to be overwhelmed.
JT: If any of these issues wind up going to the Supreme Court, as seems all too imaginable, what’s your level of confidence that the Court would make a decision on the merits as opposed to the politics?
TP: I would like to think that there is a majority of this court that thinks of themselves as institutionalists and would like their decisions to be seen as made on the merits. I think it’s instructive that in the 2020 election there were a number of cases that went up to the Court. They didn’t act on them. They pushed them back until they were moot. If I had to pick who in our constitutional system I wanted resolving this, recognizing the composition of the Supreme Court, I would still feel better about the Court to be fair on this than any other player I could think of.
JT: That’s a positive note to end on.