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Trump fans ignite post-election turmoil in Arizona -- exposing an important fact about our voting system

Maricopa County Supervisor Steve Gallardo had heard enough. More than a half-hour into the board's January 27 consideration of a "forensic" audit where two outside firms would assess if its voting system used in Arizona's 2020 presidential election had been infiltrated and the results altered, the former state senator said that his vote in favor of the audit "was a tough pill to swallow."

"We had our presidential preference election, not one complaint," Gallardo said. "We had our primary election in August. Not one complaint. Everyone was happy. We had our general election. No complaint, until a day or two after the general election, when some folks in our community and across this country started looking at the results."

"They were not happy with the result," he continued. "That's quite normal in the world of elections. Folks that are not happy with the results generally do complain. This year, they took it a step further. They continue to spread lies and conspiracies about how our elections are conducted, and now our machines are the target."

Arizona had the second-closest presidential election margin in 2020, a difference of about 10,500 votes between the winner, Joe Biden, and Donald Trump. The margin did not trigger a recount under state election laws, which the state's GOP-majority legislature had changed to make the margin that triggers a recount narrower in recent years. But in the months since Election Day, Trump supporters, including state legislators, have ramped up their attacks, raising the question of what proof, if any, will convince them of the outcome.

The supervisors governing Arizona's most populous county unanimously voted to begin an audit to determine if its electronic voting system was "accurate, reliable and secure," as the county's election co-director told the board. Meanwhile, in Arizona's state Senate, Republicans who supported Trump have ramped up their attack on Biden's victory and demanded Maricopa County turn over its voting machines and 2.1 million ballots to Senate investigators.

The county has so far refused, even as Trump supporters are urging the Senate to seize the machinery and ballots. Leaders of Trump's legal team, including Rudy Giuliani, speculated in Arizona testimony that Trump votes were secretly turned into Biden votes. Those allegations, in part, led Dominion Voting Systems, which made the county's voting equipment, to sue Giuliani for $1.3 billion. (Dominion has filed 2,912-pages of exhibits detailing Giuliani's false statements.)

This fight in Arizona centers on what evidence could be used to satisfy voters that election results are accurate and legitimate. But the fight is also part of a pattern in battleground states where perpetuating the myth of a stolen election has become the opening move in what may become major rollbacks of voting options.

"Nothing is going to convince them. They're always going to be casting doubt," said Gallardo. "They're using our system; they're using our audit as justification for doing it. How many times did I hear… the legislature, over the last two weeks now, say, 'We need to do an audit so we can introduce legislation?'… They're using this audit to introduce legislation to make it difficult for other people to vote. It's called voter suppression."

Gallardo's assertion that Trump's supporters will never be convinced underscores that one of the top challenges confronting American democracy is identifying what steps will restore public confidence in elections. Beyond debating how officials might counter propaganda attacking the process is a baseline question for those concerned with presenting the facts: Is the most crucial balloting data to verify results being made public?

Evidence of Accurate Vote Counts

Seen from afar, Arizona is a national leader in transparent elections. As Sambo Dul, Arizona elections director, told the National Association of State Election Directors (NASED) during its recent winter 2021 conference, every step of the process—from programming the voting systems without being connected to the internet, to the use of hand-marked paper ballots, to pre- and post-election testing of machinery and audits of reported results, including verifying results before its certifies winners—is "aimed at ensuring the security and integrity of our system."

"After each voting location is closed down on election night, their materials go to an audit board," Dul said on February 3. "The audit board reviews the election board materials to make sure that all of the numbers [voters, ballots returned, ballots counted] are reconciled prior to the canvass… And as a final check, we require counties to conduct a logic and accuracy test [on counting scanners] after all of the ballots in the counties have been tabulated."

These steps all occurred in 2020's presidential election, including post-Election Day machinery tests and vote count audits that showed no hint that the results were wrong.

As granular as these steps were, Maricopa County's audit will go further, Scott Jarrett, director of Election Day and emergency voting with the Maricopa County Elections Department, told the county supervisors on January 27. "A forensic audit is a process that will review [the election process], to determine and identify whether our electronic equipment is accurate, reliable and secure."

"It's a multilayered, robust process that will review that it's not susceptible to hacking, and that it wasn't hacked during the November 2020 general election," he said, describing the audit. "We'll also review that there's no malicious software or hardware that has been installed on any of our tabulation equipment or devices. It'll also confirm that our tabulation equipment is not connected to the internet and wasn't connected to the internet throughout the November 2020 general election. But we're going to expand that to be even further [and] go back to when the logic and accuracy tests occurred for the August primary election."

These assessments will be technical and likely hard for the public to follow. Given the political landscape, their conclusions will likely be dismissed by Trump's base. But Maricopa County's forensic audit also may surface too much information without getting to the heart of the matter—which would reveal the most direct evidence that the county's 2020 results were accurate.

Why not? The forensic audit will probe whether the county's computers that processed its hand-marked and machine-marked ballots to count votes were accurately reading those ballots—not recalculating or reassigning votes, which is what the pro-Trump witnesses alleged during Senate's hearings in November.

But what the audit will not do is examine what may be the most important part of the vote-counting evidence trail: the computer files, including images of every paper ballot cast, created to count votes, and the activity logs documenting that process. The county will examine the machinery and software used, but not compare the paper ballots, ballot images and the ensuing vote count. That distinction was confirmed by the county election office's spokeswoman.

"The ballot images and the activity logs should be a public record," said John Brakey, an Arizona-based election transparency activist focusing on ballot image audits.

How Paper Ballots Are Counted

The latest voting systems, including those used in Maricopa County, do not count paper ballots directly. Instead, computer scanners create a digital image of every ballot card. Those images are then analyzed by software, which creates a grid that correlates ink marks—votes—with each ballot's choices. The resulting tally, a spreadsheet of sorts, is built into the vote count. Formally, that tally becomes what is called the cast vote record.

In mid-2020, lawyers associated with the Florida Democratic Party sued the eight largest counties in that state seeking to force the counties to preserve ballot images as public election records. Since the 1960 Civil Rights Act, all materials used in federal elections must be preserved for 22 months. However, that federal law, which criminalized the destruction of election materials, was written in an era predating today's paper and electronic voting systems.

The Florida counties agreed to preserve their ballot images if there was a 2020 presidential recount—which did not happen. Meanwhile, in January 2021, a Florida law took effect that allows its counties to use ballot images as part of their recount process. (Recounts are not the same as audits; recounts can change election results.) This seemingly arcane and technical fight revolves around a key question: Is all of the data surrounding vote counts a protected public record?

The short answer is no—even though state and federal election officials have been gradually acknowledging that this data is there and crucial. For several years, the state of Maryland has used ballot image audits to verify its results before certifying winners. The soon-to-be-adopted Voluntary Voting System Guidelines 2.0 from the U.S. Election Assistance Commission, which states used as a best practice standard, refer to ballot images but do not urge states to save them. The massive election reform bill introduced by Democrats in Congress, H.R. 1 and its Senate companion, does not update election records retention requirements for digital data.

But, increasingly, election officials, including Republicans being attacked by pro-Trump factions, have been citing digital evidence generated during ballot-processing and vote-counting to push back on conspiracy theories that their elections were fraudulent and illegitimate.

In Georgia, during its second count of all presidential ballots—an unprecedented hand count of 5 million ballots—Gabriel Sterling, the state election operations manager, told the press that his staff was able to use the activity logs in scanners to identify why several thousand votes for Trump were not counted on election night. Basically, some poll workers, after a 15-hour day, failed to transfer the data from the scanners to their county's tabulation system. Those votes were subsequently added to Trump's totals, although he did not win the state.

A Paper and Digital Evidence Trail

There is no guarantee that providing real evidence to hyperpartisans will change minds when their candidate lost. However, not making public—and preserving—the paper and electronic records, data and evidence trail associated with counting votes will only fan more suspicions. Those doubts will emerge when facts about how ballots are counted are obscured.

For example, when Arizona Trump activist Liz Harris went on Stephen Bannon's "War Room" online radio show on February 3, she gave a laundry list of election files and data that she was hoping the Arizona Senate would seize to prove Biden lost. While the list was a fishing expedition seeking targets to boost their stolen election narrative, much of what she sought was irrelevant to counting votes.

"We're looking for election log files, election settings, accounts and tokens, Windows servers and desktops, Dominion equipment, Dominion network access to the logins for the Dominion records. We're looking for Election Systems and Software [another voting system maker]. We're looking for the voter rolls, and most importantly, and I can't stress this enough, access to all original paper ballots including but not limited to early ballots, Election Day ballots and provisional ballots," Harris said. "I'm very confident based on the work… we will find a minimum of 106,000 fraudulent ballots, and I make that statement with great faith."

What's missing from this list are the specific records and related data that were used to count the presidential election's votes in Maricopa County—in addition to the paper ballots, the digital ballot image files of every paper ballot cast, and activity logs from the scanners processing those ballots and tabulating the votes.

During NASED's winter meeting, countering misinformation was the subject of February 4's presentations. State election directors from states with Republican and Democratic majorities were uniformly confident that the 2020 election results were accurate. They said that election officials had done more than ever before to open their processes to public viewing. But they still felt they were burned by partisan disinformation, despite their efforts at transparency.

"I want to talk a little bit about transparency, which is a positive," said Matt Masterson, a former top-ranking federal official who has worked for various agencies on election technology and voting security. "I want to state over and over again… that the level of transparency that election officials offered in this election was far greater than any election that I've experienced. There were more livestreams or updates, more press conferences, more access to the information than ever before."

"And transparency is a positive, but can also be used as a negative, right?" he continued. "We saw repeatedly the use of video and livestreams to make [false] claims about, 'Oh, did you see what he did there? He switched the ballots out.' 'Did you see what she did there?'… Using the data to create really good-looking but completely misleading and incorrect charts, using voter data to claim, 'I'm not saying something happened. But if you look at this, it doesn't appear right.'"

Masterson came down on the side of more transparency. He urged state election directors to counter disinformation by presenting the facts of their administrative processes "as quickly as possible," to then focus on dispelling rumors, and then to offer more detailed analyses.

In Arizona, Trump activist Liz Harris told Steve Bannon that her state "has this stuff intact," referring to its preservation of the paper and electronic records surrounding voting in the 2020 presidential election. "We would be the perfect state to do the deep dive forensic audit."

On that point, Harris was correct. Jarrett, a co-director of Maricopa County's elections, told the supervisors on January 27 that their ballot-marking devices, scanners, tabulators and their accompanying digital files have been sealed and kept in a vault since the November 3 election—including untouched memory cards containing a backup of all ballot images and their votes.

"Our equipment is ready," Jarrett said, referring to the county's audit. "It has not been tampered with. It's still in the same state it was during the election and then the post-election."

Maricopa County's assessment of its election machinery—but not its presidential ballots and vote count—began on February 2.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

Trump supporters are still fighting Arizona's election results — here's what we can learn from the fight

Maricopa County Supervisor Steve Gallardo had heard enough. More than a half-hour into the board's January 27 consideration of a "forensic" audit where two outside firms would assess if its voting system used in Arizona's 2020 presidential election had been infiltrated and the results altered, the former state senator said that his vote in favor of the audit "was a tough pill to swallow."

"We had our presidential preference election, not one complaint," Gallardo said. "We had our primary election in August. Not one complaint. Everyone was happy. We had our general election. No complaint, until a day or two after the general election, when some folks in our community and across this country started looking at the results."

"They were not happy with the result," he continued. "That's quite normal in the world of elections. Folks that are not happy with the results generally do complain. This year, they took it a step further. They continue to spread lies and conspiracies about how our elections are conducted, and now our machines are the target."

Arizona had the second-closest presidential election margin in 2020, a difference of about 10,500 votes between the winner, Joe Biden, and Donald Trump. The margin did not trigger a recount under state election laws, which the state's GOP-majority legislature had changed to make the margin that triggers a recount narrower in recent years. But in the months since Election Day, Trump supporters, including state legislators, have ramped up their attacks, raising the question of what proof, if any, will convince them of the outcome.

The supervisors governing Arizona's most populous county unanimously voted to begin an audit to determine if its electronic voting system was "accurate, reliable and secure," as the county's election co-director told the board. Meanwhile, in Arizona's state Senate, Republicans who supported Trump have ramped up their attack on Biden's victory and demanded Maricopa County turn over its voting machines and 2.1 million ballots to Senate investigators.

The county has so far refused, even as Trump supporters are urging the Senate to seize the machinery and ballots. Leaders of Trump's legal team, including Rudy Giuliani, speculated in Arizona testimony that Trump votes were secretly turned into Biden votes. Those allegations, in part, led Dominion Voting Systems, which made the county's voting equipment, to sue Giuliani for $1.3 billion. (Dominion has filed 2,912-pages of exhibits detailing Giuliani's false statements.)

This fight in Arizona centers on what evidence could be used to satisfy voters that election results are accurate and legitimate. But the fight is also part of a pattern in battleground states where perpetuating the myth of a stolen election has become the opening move in what may become major rollbacks of voting options.

"Nothing is going to convince them. They're always going to be casting doubt," said Gallardo. "They're using our system; they're using our audit as justification for doing it. How many times did I hear… the legislature, over the last two weeks now, say, 'We need to do an audit so we can introduce legislation?'… They're using this audit to introduce legislation to make it difficult for other people to vote. It's called voter suppression."

Gallardo's assertion that Trump's supporters will never be convinced underscores that one of the top challenges confronting American democracy is identifying what steps will restore public confidence in elections. Beyond debating how officials might counter propaganda attacking the process is a baseline question for those concerned with presenting the facts: Is the most crucial balloting data to verify results being made public?

Evidence of Accurate Vote Counts

Seen from afar, Arizona is a national leader in transparent elections. As Sambo Dul, Arizona elections director, told the National Association of State Election Directors (NASED) during its recent winter 2021 conference, every step of the process—from programming the voting systems without being connected to the internet, to the use of hand-marked paper ballots, to pre- and post-election testing of machinery and audits of reported results, including verifying results before its certifies winners—is "aimed at ensuring the security and integrity of our system."

"After each voting location is closed down on election night, their materials go to an audit board," Dul said on February 3. "The audit board reviews the election board materials to make sure that all of the numbers [voters, ballots returned, ballots counted] are reconciled prior to the canvass… And as a final check, we require counties to conduct a logic and accuracy test [on counting scanners] after all of the ballots in the counties have been tabulated."

These steps all occurred in the 2020 presidential election, including post-Election Day machinery tests and vote count audits that showed no hint that the results were wrong.

As granular as these steps were, Maricopa County's audit will go further, Scott Jarrett, director of Election Day and emergency voting with the Maricopa County Elections Department, told the county supervisors on January 27. "A forensic audit is a process that will review [the election process], to determine and identify whether our electronic equipment is accurate, reliable and secure."

"It's a multilayered, robust process that will review that it's not susceptible to hacking, and that it wasn't hacked during the November 2020 general election," he said, describing the audit. "We'll also review that there's no malicious software or hardware that has been installed on any of our tabulation equipment or devices. It'll also confirm that our tabulation equipment is not connected to the internet and wasn't connected to the internet throughout the November 2020 general election. But we're going to expand that to be even further [and] go back to when the logic and accuracy tests occurred for the August primary election."

These assessments will be technical and likely hard for the public to follow. Given the political landscape, their conclusions will likely be dismissed by Trump's base. But Maricopa County's forensic audit also may surface too much information without getting to the heart of the matter—which would reveal the most direct evidence that the county's 2020 results were accurate.

Why not? The forensic audit will probe whether the county's computers that processed its hand-marked and machine-marked ballots to count votes were accurately reading those ballots—not recalculating or reassigning votes, which is what the pro-Trump witnesses alleged during Senate's hearings in November.

But what the audit will not do is examine what may be the most important part of the vote-counting evidence trail: the computer files, including images of every paper ballot cast, created to count votes, and the activity logs documenting that process. The county will examine the machinery and software used, but not compare the paper ballots, ballot images and the ensuing vote count. That distinction was confirmed by the county election office's spokeswoman.

"The ballot images and the activity logs should be a public record," said John Brakey, an Arizona-based election transparency activist focusing on ballot image audits.

How Paper Ballots Are Counted

The latest voting systems, including those used in Maricopa County, do not count paper ballots directly. Instead, computer scanners create a digital image of every ballot card. Those images are then analyzed by software, which creates a grid that correlates ink marks—votes—with each ballot's choices. The resulting tally, a spreadsheet of sorts, is built into the vote count. Formally, that tally becomes what is called the cast vote record.

In mid-2020, lawyers associated with the Florida Democratic Party sued the eight largest counties in that state seeking to force the counties to preserve ballot images as public election records. Since the 1960 Civil Rights Act, all materials used in federal elections must be preserved for 22 months. However, that federal law, which criminalized the destruction of election materials, was written in an era predating today's paper and electronic voting systems.

The Florida counties agreed to preserve their ballot images if there was a 2020 presidential recount—which did not happen. Meanwhile, in January 2021, a Florida law took effect that allows its counties to use ballot images as part of their recount process. (Recounts are not the same as audits; recounts can change election results.) This seemingly arcane and technical fight revolves around a key question: Is all of the data surrounding vote counts a protected public record?

The short answer is no—even though state and federal election officials have been gradually acknowledging that this data is there and crucial. For several years, the state of Maryland has used ballot image audits to verify its results before certifying winners. The soon-to-be-adopted Voluntary Voting System Guidelines 2.0 from the U.S. Election Assistance Commission, which states used as a best practice standard, refer to ballot images but do not urge states to save them. The massive election reform bill introduced by Democrats in Congress, H.R. 1 and its Senate companion, does not update election records retention requirements for digital data.

But, increasingly, election officials, including Republicans being attacked by pro-Trump factions, have been citing digital evidence generated during ballot-processing and vote-counting to push back on conspiracy theories that their elections were fraudulent and illegitimate.

In Georgia, during its second count of all presidential ballots—an unprecedented hand count of 5 million ballots—Gabriel Sterling, the state election operations manager, told the press that his staff was able to use the activity logs in scanners to identify why several thousand votes for Trump were not counted on election night. Basically, some poll workers, after a 15-hour day, failed to transfer the data from the scanners to their county's tabulation system. Those votes were subsequently added to Trump's totals, although he did not win the state.

A Paper and Digital Evidence Trail

There is no guarantee that providing real evidence to hyperpartisans will change minds when their candidate lost. However, not making public—and preserving—the paper and electronic records, data and evidence trail associated with counting votes will only fan more suspicions. Those doubts will emerge when facts about how ballots are counted are obscured.

For example, when Arizona Trump activist Liz Harris went on Stephen Bannon's "War Room" online radio show on February 3, she gave a laundry list of election files and data that she was hoping the Arizona Senate would seize to prove Biden lost. While the list was a fishing expedition seeking targets to boost their stolen election narrative, much of what she sought was irrelevant to counting votes.

"We're looking for election log files, election settings, accounts and tokens, Windows servers and desktops, Dominion equipment, Dominion network access to the logins for the Dominion records. We're looking for Election Systems and Software [another voting system maker]. We're looking for the voter rolls, and most importantly, and I can't stress this enough, access to all original paper ballots including but not limited to early ballots, Election Day ballots and provisional ballots," Harris said. "I'm very confident based on the work… we will find a minimum of 106,000 fraudulent ballots, and I make that statement with great faith."

What's missing from this list are the specific records and related data that were used to count the presidential election's votes in Maricopa County—in addition to the paper ballots, the digital ballot image files of every paper ballot cast, and activity logs from the scanners processing those ballots and tabulating the votes.

During NASED's winter meeting, countering misinformation was the subject of February 4's presentations. State election directors from states with Republican and Democratic majorities were uniformly confident that the 2020 election results were accurate. They said that election officials had done more than ever before to open their processes to public viewing. But they still felt they were burned by partisan disinformation, despite their efforts at transparency.

"I want to talk a little bit about transparency, which is a positive," said Matt Masterson, a former top-ranking federal official who has worked for various agencies on election technology and voting security. "I want to state over and over again… that the level of transparency that election officials offered in this election was far greater than any election that I've experienced. There were more livestreams or updates, more press conferences, more access to the information than ever before."

"And transparency is a positive, but can also be used as a negative, right?" he continued. "We saw repeatedly the use of video and livestreams to make [false] claims about, 'Oh, did you see what he did there? He switched the ballots out.' 'Did you see what she did there?'… Using the data to create really good-looking but completely misleading and incorrect charts, using voter data to claim, 'I'm not saying something happened. But if you look at this, it doesn't appear right.'"

Masterson came down on the side of more transparency. He urged state election directors to counter disinformation by presenting the facts of their administrative processes "as quickly as possible," to then focus on dispelling rumors, and then to offer more detailed analyses.

In Arizona, Trump activist Liz Harris told Steve Bannon that her state "has this stuff intact," referring to its preservation of the paper and electronic records surrounding voting in the 2020 presidential election. "We would be the perfect state to do the deep dive forensic audit."

On that point, Harris was correct. Jarrett, a co-director of Maricopa County's elections, told the supervisors on January 27 that their ballot-marking devices, scanners, tabulators and their accompanying digital files have been sealed and kept in a vault since the November 3 election—including untouched memory cards containing a backup of all ballot images and their votes.

"Our equipment is ready," Jarrett said, referring to the county's audit. "It has not been tampered with. It's still in the same state it was during the election and then the post-election."

Maricopa County's assessment of its election machinery—but not its presidential ballots and vote count—began on February 2.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

Independent Media InstituteCredit Line: This article was produced by Voting Booth, a project of the Independent Media Institute.

The next battle over voting rights has already begun — and it could get nasty

Across the country, more than 500 election reform bills are pending in state legislatures. Eighty percent of these bills seek to put into law many of the temporary measures that helped voters in response to 2020's pandemic. The rest would roll back last year's emergency measures or more deeply police voting.

The list of bills was compiled by the Brennan Center for Justice at New York University School of Law, whose Voting Laws Roundup 2021 report tracked and categorized bills that have been introduced, refiled or carried over from past legislative sessions.

"After historic turnout and increased mail voting in 2020, state lawmakers are pulling in opposite directions," the report said. "New legislation reflects a surge of bills to limit voter access, with a particular focus on mail voting and voter ID. At the same time, other bills would cement pro-voter policies implemented temporarily last year."

Most of the restrictive efforts concerned voter registration, a voter's access to a mailed-out ballot, and the options and requirements associated with returning mailed-out ballots. On the other hand, while there are 106 restrictive bills, 406 bills would expand access to a ballot or codify many of the emergency measures taken by states to assist voters.

"The 2021 legislative sessions have begun in all but six states, and state lawmakers have already introduced hundreds of bills aimed at election procedures and voter access—vastly exceeding the number of voting bills introduced by this time last year," said the report, which was published on January 26, 2021.

Expanding Participation

On the inclusion side of this ledger, the most prevalent legislation would permit all voters to receive a mailed-out (or absentee) ballot without satisfying an excuse, such as an illness, work conflict or travel. There are related proposals requiring local officials to contact voters who err when filling out their ballot return envelopes to fix those errors so their votes can be counted. There is also legislation to authorize or require officials to use drop boxes for returning these ballots, as well as legislation that allows officials to start vetting ballot envelopes sooner.

There are a handful of states where most or all of these options have been introduced. These steps are part of an overall system of verifying a voter's eligibility while making it easier for voters to participate in elections and for officials to administer elections. These states include Connecticut, Indiana, Kentucky, Missouri, Mississippi, New Jersey, New York and Texas.

States with Democratic-majority legislatures and governors will be more receptive to these reform packages, while GOP-majority legislatures and governors are less likely to adopt them. However, that blue-red divide is not as fixed in states where both parties hold state offices.

Missouri, for example, which saw political battles in 2020 over expanding access to a mailed-out ballot as the pandemic struck, is less likely than Kentucky to endorse these inclusionary measures. In 2020, Kentucky's Democratic governor and Republican secretary of state worked together to ensure ballot access during the pandemic. Its fall election was praised as well run, although, as often happens, partisans questioned the accuracy of some results.

Early voting is the next most frequent focus of 2021 legislation. Fourteen states have bills to expand that voting option or to introduce it for the first time. These states span the spectrum, from blue states with historically difficult voting rules, such as New York, to red states such as Alabama, Indiana, Tennessee, South Carolina and Texas. Purple states such as Virginia and Pennsylvania also have bills to expand early voting.

Going further upstream in the process to the starting line, 13 states have bills to implement same-day voter registration and voting. (These states are Alaska, Delaware, Florida, Indiana, Kentucky, Mississippi, Missouri, New Jersey, New York, Oregon, Pennsylvania, South Carolina and Texas.) Eleven states have legislation to automatically register their voters, following the adoption of automatic voter registration (AVR) in the District of Columbia and 19 states in the past six years. (The proposed AVR states are Florida, Hawaii, Iowa, Indiana, Kentucky, Missouri, Mississippi, Nebraska, Oklahoma, Pennsylvania and Texas.)

Restoration of voting rights for felons is another priority. Fifteen states have introduced bills to restore voting rights or ease restrictions. In 2018, Florida's voters passed Amendment 4, which re-enfranchised more than 1 million felons. However, its GOP-led legislature and Republican governor required those felons to pay back court fees before voting, which disenfranchised most of these individuals in 2020 and was seen as a factor helping Republicans to maintain statewide power. (The proposed rights restoration states are Alabama, Connecticut, Iowa, Kentucky, Maryland, Mississippi, Missouri, Nebraska, New Mexico, New York, Oregon, Tennessee, Texas, Virginia and Washington.)

"The Sentencing Project estimates that Mississippi disenfranchises over 214,000 citizens living in the community—more than 54% of whom are Black—because of past convictions," the Brennan Center report said.

Rolling Back Voting

While comprising only 20 percent of the proposed reforms, bills to make voting more difficult—compared to the options offered last fall—have gained the most attention. The Brennan Center said that the volume of 2021 bills represented "a backlash" to 2020's record voter turnout, and to last year's historic expansion of absentee and early balloting.

"In a backlash to historic voter turnout in the 2020 general election, and grounded in a rash of baseless and racist allegations of voter fraud and election irregularities, legislators have introduced three times the number of bills to restrict voting access as compared to this time last year," the Brennan Center said. "Twenty-eight states have introduced, prefiled, or carried over 106 restrictive bills this year (as compared to 35 such bills in fifteen states on February 3, 2020)."

There are four focal points to these restrictive measures: limiting access to a mailed-out ballot; imposing new or stiffer voter ID requirements for returning a mailed-out ballot; limiting voter registration; and enabling more aggressive voter purges.

The states with the most regressive bills are Pennsylvania (14), New Hampshire (11), Missouri (9), Mississippi (8), New Jersey (8), and Texas (8). Georgia also has numerous bills: "lawmakers reportedly plan to introduce bills to require an excuse to cast an absentee ballot, mandate photo ID when returning an absentee ballot, and ban ballot drop boxes, among other harsh restrictions," the Brennan Center's report said.

The biggest focus concerns voting with mailed-out ballots, which 65 million Americans used last fall. After the pandemic broke, states suspended the requirement that voters needed to satisfy an excuse requirement to get an absentee ballot. Three states—Pennsylvania, Missouri, and North Dakota—seek to revive their excuse requirement. "[T]hree different proposals in Pennsylvania seek to eliminate no-excuse mail voting, a policy just adopted in 2019," the Brennan Center said.

Another feature of absentee voting is what is called the permanent absentee list. These are voters who automatically receive ballots by mail. Typically, the voters are seniors, people with disabilities and overseas civilians and soldiers. There is legislation in Arizona and New Jersey to "make it easier for officials to remove voters" from this list, the Brennan Center said. A related voting option is the "permanent early voter list," which is targeted for elimination by bills in Arizona and Pennsylvania. While Republicans back these proposals, their base—especially in retiree-rich Arizona—has long favored voting by mail or voting early.

Related targets of legislation are groups and individuals who try to help voters obtain absentee ballots and return them. Advocacy groups would face restrictions with mailing absentee ballot applications to voters under bills in New Jersey, Pennsylvania, Texas and Washington. (In 2020, some pro-Democratic groups made mistakes with sending voters absentee ballot applications, leading to criticism from local election officials and Republicans.)

There are additional proposed restrictions on who can help voters to cast mailed-out ballots. In Arizona, current law limits such assistance to family and household members. A proposed bill would add an ID requirement for those returning the ballots for another person and require that these absentee ballots be notarized. Alaska, South Carolina and Virginia also have bills that require returned mail ballots to be notarized first. A Virginia bill would require the absentee ballots to be returned at registrars' offices, which would eliminate the use of drop boxes.

There are also bills expanding the reasons for the disqualification of returned ballots. A Pennsylvania bill would impose signature-matching requirements that are used to vet voters—by how they sign the outside of their ballot return envelope—before their votes are counted. There are ways that checking signatures can be done scientifically, but it can also be done in ways that end up mistakenly disqualifying valid votes. The more professional processes match the ballot envelope signature with a mix of signatures in other state records—from voter registration forms, absentee ballot applications, drivers' licenses, tax returns, etc.

Under the umbrella of bills that could expand disqualification, Kansas and Pennsylvania also have legislation to reject any absentee ballot that arrives after Election Day, even if it was postmarked before Election Day. An Iowa bill would require voters to mail all ballots at least 10 days before Election Day.

Nearly 36 million people voted early in the 2020 general election. Another wave of proposed legislation would impose more stringent requirements for early in-person voting.

Ten states have introduced voter ID bills, including six states that do not now require early voters to show ID to get a ballot (Minnesota, Nebraska, Pennsylvania, Virginia, Washington and Wyoming). Two states, Mississippi and New Hampshire, would narrow the range of accepted IDs, including those often used by students. A related bill in New Hampshire would eliminate the state's same-day registration and voting option, which thousands of students use for its presidential primaries. GOP bills in Connecticut, Montana and Virginia would also eliminate same-day registration.

Finally, there are a handful of bills that, if passed, could create big bureaucratic problems. A Texas bill would strip "voter registration authority from county clerks and requir[e] the secretary of state to send voter registration information to the Department of Public Safety for citizenship verification." That scenario is troubling because the Public Safety agency would have to vet hundreds of thousands of voters, a process that is outside of its mission and expertise.

Similarly, three Mississippi bills would require the state to compare its voter rolls to other data lists to identify non-citizens, and "would require removal from the rolls of voters who fail to respond to a notice within 30 days with proof of citizenship," the Brennan Center reported. Depending on the database used to verify voters, many false positives (non-citizens) could be generated. Lawsuits from former President Trump's supporters made similar claims of non-citizen and illegal voting, but never produced authoritative evidence in court.

States and Congress

The fate of the proposed legislation will largely depend on which political party controls state government. Currently, 38 states are controlled by one party that has a legislative majority and the governor's seat, according to Ballotpedia—15 are Democratic; 23 are Republican. In these "trifecta" states, such as blue Virginia and red Texas, it is unlikely that bills proposed by the minority party will have traction. On the other hand, states with split party rule—such as Pennsylvania where the governor is a Democrat, and the legislature is in GOP hands—may experience nasty fights. But the state's legislature cannot override a gubernatorial veto.

How state legislatures handle election reforms will provide a very important legal baseline for whatever federal reforms might emerge from Congress in 2021. Currently, both chambers in Congress have teed up a massive reform bill drafted by Democrats for early action. The bills include many of the inclusionary reforms being pushed in the states. The federal legislation is written so court challenges could only apply to narrow policies—one at a time and not the whole bill—if successful.

Needless to say, Republicans are likely to challenge federal reforms passed by Democrats. In 2020, Republicans suing on Trump's behalf argued that the U.S. Constitution only authorized state legislatures—not governors, secretaries of state, or state supreme courts—to set the rules for elections. Reforms passed by blue state legislatures could be fortified if that "originalist" argument gained traction in federal court. But the converse is true as well. Red states rolling back voting options would also be sustained if that controversial legal theory was upheld in federal court—or by an expanded conservative majority on the Supreme Court.

The most that can be said at this stage in the process—as state legislatures and Congress begin their sessions—is the options and rules for voting into the foreseeable future are in play. Voters can see which political party controls the legislature and governorships in their states to game the likely success of the proposed reforms. For non-trifecta states, voters can take a closer look at whether a governor's veto can be overridden by the legislature.

The 2020 election showed how voting could be made easier for voters and officials despite the pandemic. Whether those emergency measures become laws and standard practices is now what is in play.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.

This article was produced by Voting Booth, a project of the Independent Media Institute.

GOP operatives are sending out clear signals about the next attack on democracy

Hours after President Biden declared that "democracy has prevailed" during his inaugural address, longtime Republican strategist Karl Rove urged Republicans to pressure GOP election officials and legislators to create "a model election code" to reconsider the laws surrounding 2020's two voting options that led to the presidential election's record turnout.

"Republicans should also encourage GOP secretaries of state and state lawmakers to develop a model election code," Rove wrote in a January 20 commentary for the Wall Street Journal entitled, "The Republican Future Starts Now."

"The job of proposing electoral reforms shouldn't be based on the unsupported claims of widespread fraud peddled by Rudy Giuliani and Sidney Powell," Rove continued. "Instead, the goal should be to suggest measures that restore public confidence in our democracy. How do states with extensive mail-in and early voting like Florida and Texas get it right?"

Rove's commentary comes as Republican-majority legislatures in battleground states such as Georgia, Pennsylvania and Arizona have proposed bills or convened hearings to review the laws that allowed people to vote with mailed-out ballots or early in-person in 2020.

"Whenever Karl Rove writes a piece in the Wall Street Journal, the history of it suggests that Democrats should pay careful attention," said David Daley, author of Unrigged: How Americans are Battling Back to Save Democracy. "Because the Wall Street Journal is where Republicans can signal to their donor class their key projects."

In March 2010, Rove penned a Wall Street Journal commentary openly discussing the GOP's REDMAP project, which targeted 107 state legislative seats that "would give them control of drawing district lines for nearly 190 congressional seats." REDMAP succeeded, creating GOP majority legislatures and congressional delegations in the otherwise purple states of Ohio, Michigan, Pennsylvania, Wisconsin, North Carolina and Alabama.

The website of the American Legislative Exchange Council (ALEC), which drafts model bills for social conservatives and economic libertarians, did not yet promote election reforms on its website. However, it linked to the Conservative Action project, which posted a defense of the GOP lawmakers who opposed certifying the Electoral College slates from Arizona and Pennsylvania. The expanded use of voting via mailed-out ballots and early voting must be examined, it said.

"The 2020 election was conducted in an unprecedented manner: largely by mail, and in a way that overwhelmed the capacities of many states. It is not at all unreasonable to review the manner in which votes were counted," said the Conservative Action Project memo, which was signed by more than 100 activists and organizations. "Indeed, if the goal is to restore faith in future elections, then a comprehensive review and analysis to determine what went wrong, what went right, and what is in need of reform should be a critical next step."

Daley, whose prior book, Ratf*cked, profiled REDMAP and its impacts on the past decade's political battles and extreme politics, said Rove's commentary was a warning sign.

"Whenever Rove writes in the Wall Street Journal, it not to be a public intellectual but to put ideas in front of the Republican donor class," he said. "It fits perfectly with much of the Republican strategy on voter suppression."

"So much of it sounds reasonable," Daley continued, referring to the suggestion that a model election code be developed and embraced. "How can you be opposed to a blue-ribbon bipartisan commission that is going to step back and ensure that our elections are free, fair and secure? Except, that's not actually their intention, because we just had an election that was free, fair and secure. And [Sens.] Hawley and Cruz and 130-plus Republicans in the House voted to decertify [the popular vote results and Electoral College slates from] Pennsylvania and Arizona—even after a Republican governor [in Arizona] signed off on certification."

Already, Republican legislators in 2020 battleground states held hearings where they are badgering statewide election officials—some elected Democrats, some career civil servants—about decisions they took last fall that made it easier to vote with absentee ballots.

For example, on Thursday in Pennsylvania, Secretary of State Kathy Boockvar, a Democrat, was pressed by Republican representatives advising county election officials to count the returned mailed-out ballots of people who forgot to put their ballots in a secrecy sleeve. The state's supreme court subsequently ruled that the "naked" ballots should be disqualified.

"You disagree with the decision that was rendered by the Supreme Court?" Rep. Ryan McKenzie, a Republican, asked Boockvar.

"It doesn't matter whether I disagree with a decision rendered by the Supreme Court, because the Supreme Court's rule governs," she replied. "But what I would say is, and maybe this is part of your question, do I think that is the right approach for voters for making sure that every eligible voter's vote counts? No, I'd love to see the legislature change that law and say, 'Look, if a voter makes a mistake that does not have anything to do with their eligibility or their qualifications, such as a naked ballot, that vote should still count."

The Thursday legislative hearing was one of 14 that are slated in Pennsylvania to review voting laws and administrative rules that were in effect during the 2020 election. A separate GOP-sponsored proposal would create districts for electing state supreme court judges. If put into effect, it could become a judicial gerrymander to recast Pennsylvania's appellate courts—including the state's supreme court.

These steps and others, such as Republicans in Wisconsin (and Pennsylvania) talking about changing the way their states choose presidential electors, or Georgia possibly turning the secretary of state from an elective to an appointed office filled by the legislature, seek to change the laws so Republicans can win elections, Daley said.

"Republicans talk a lot about following the rule of law, but what they are trying to do is change the law to make it make it easier to do in 2024 what they were unable to do in 2020," he said.

Daley said Rove's push to review ballot access laws after an election where no evidence of fraud was provided by Trump's allies—despite 65 lawsuits—posed a longer-term threat to representative government than the pro-Trump mob that attacked the Capitol.

"In 2020, there were two mobs that attacked the Capitol," he said. "One mob did it with baseball bats, Trump flags and Camp Auschwitz shirts. And they tried to overturn an election through fear and terror and insurrection. And then there was the mob that wore tailored suits and congressional pins that walked in after that [first] mob, while there was still blood in the hallways and bullet holes in the walls, and they voted not to certify free and fair results from Pennsylvania and Arizona. They gave that mob everything that they showed up for."

"We need to be more fearful of that second mob," Daley continued. "Because they remain inside the House. They have been elected to the rules so that if this happens again, with better lawyers making the cases, they will have statutes that they can rely on to press fraudulent claims of election fraud."

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