The National Conference of State Legislatures' online database listed 44 recount-related bills in 2019 from 15 states. Hawaii, which had 14 proposed bills, passed a bill requiring a mandatory recount if the margin was less than 0.25 percent, but other bills requiring that recounts be done by hand have not moved. Virginia passed a bill requiring new "standards and instructions" if there is more than one recount in play. New York has a recount bill, but it too is stalled.
On the audit front, the NCSL database lists 55 bills from 21 states. Most are pending, which means their fate is uncertain when legislatures reconvene. Of the few that passed, such as in Georgia and in Indiana, there are different timetables when the new laws are to take effect. Georgia is after the 2020 election. Indiana is before the 2020 election, although state election officials can exempt counties.
What passed in these two states merits scrutiny. It is an audit whose goal is not to verify the unofficial election night results to the greatest extent possible -- to try to account for every vote in the closest contests. It is a different objective and methodology, a statistical estimate of the tabulation's overall accuracy called a "risk-limiting audit."
In contrast, a 2019 bill backed by the Florida State Association of Supervisors of Elections to let counties use digital images of paper ballots to conduct more thorough recounts failed. Its opponents included Republicans (no House co-sponsors), activists who oppose using computers in vote counting, and some officials seeking less work, Sancho said.
Conversely, 2019 also saw several states pass voting-related bills intended to tilt the electorate for perceived partisan advantage.
Florida, again, offers several examples. Republicans have received wide press attention for a bill aimed at blocking 1.4 million ex-felons from expediently restoring their voting rights, which Republican Gov. Ron DeSantis said he would sign. The bill requires former non-violent felons pay court fines. Critics have said the fees were akin to a poll tax.
That wide-ranging bill has other features that could alter who votes in 2020. Like many states, Florida has growing numbers of people voting by mail. The bill pushes back the window for absentee voting, which blunts impulsive last-minute voters. (That change gives officials a little more up-front time to process the ballots, its defenders said.)
The legislation also gives counties two days to fix problems with validating signatures on the mail-in ballot envelopes. In red rural counties, two days is enough time for officials to knock on affected voters' doors, said Sancho. But in blue urban counties, where officials contact voters by postcards, he said that timetable was intentionally insufficient.
Another electorate-shaping bill passed in Texas. In that increasingly purple state, the bill would make it harder for Libertarian candidates to get on the ballot -- critics say to keep voters in the GOP camp, while, conversely, making it easier for Greens to run -- to dilute Democratic votes. That's done through ballot qualification thresholds.
Meanwhile, there's other backsliding. John Brakey, a voting transparency advocate who has been assessing North Carolina's landscape, recently learned that election officials in the state's most populated county do not want to install paper ballot-based voting systems before 2020 -- as had been expected. The officials are more comfortable with decade-old paperless technology, Brakey said, even if it cannot be independently audited.
"They don't have the money" to buy new machines, he said. "They hope to extend the deadline. DREs [direct-recording electronic machines] are outlawed on December 31. They would rather deal with the devil they know. Even if they get money, it's unlikely they would be ready for primary time next March."
What to Do If 2020 Is Contested?
These examples raise troubling questions. How can such a polarized country believe the election results will be legitimate if vote counts are not more thoroughly and openly verified? And, should the presidential election be disputed, what then? Two nationally known legal scholars recently noted that Congress is currently incapable of resolving a disputed presidential result.
"No neutral referee presently exists," wrote Ned Foley, a professor of law at Ohio State University who led the drafting of the American Law Institute principles for resolving any ballot counting disputes, and Michael McConnell, a professor of law at Stanford University and an ex-federal appellate judge, in the Hill.
"The Constitution gives Congress the role of declaring the winner of the presidential election. But Congress, being bicameral, cannot perform this important role if the Senate insists that Donald Trump won, while the House is equally adamant that the Democratic candidate did," they wrote. "Congress, being ever more partisan, stands institutionally incapable of resolving an election contest in a way that supporters of the losing party will view as legitimate. The closer it gets to Inauguration Day, the more precarious this kind of stalemate becomes."
The scholars proposed that Speaker Pelosi and Senate GOP Leader Mitch McConnell each pick a person, and those two individuals pick a third member of a to-be-formed committee to serve as a "neutral referee."
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