Preparing For Election Disruptions in 2024

Norman J. Ornstein*

3 Voting Rts. & Democracy F. 178

Thanks so much, Jerry. Since you mentioned it—some years ago, I, along with a New Yorker named Bill Wachtel created WhyTuesday.¹ And the first person we hired was a young guy named Jacob Soboroff, who some of you may be familiar with now, whose career has risen dramatically. We had Jacob and another young person with what were then flip-cameras—we didn’t have phone cameras—go around and ask prominent officeholders if they knew why we vote on Tuesday.² And almost none of them did. Some of them, including a Senate majority leader, said, well, it’s in the Constitution, which of course it’s not. It’s in a law, which actually Adav referenced,³ that goes back to 1845.⁴ And we vote on Tuesday because of Market Day.⁵ People needed a day to get to the market and then come back, and they needed a day when the Sabbath occurred.⁶ Tuesday was the day that enabled them at both ends to make that work.⁷ There is no good reason in a society like ours to be able to do that. So that’s just an aside.

We are at a critical and difficult time in the country. I also thought of the way our culture has been coarsened. There used to be an adage, ‘never criticize anybody until you’ve walked a mile in their shoes.’ Now it’s ‘never criticize anybody until you’ve walked a mile in their shoes, that way you’ll be a mile from them, and you’ll have their shoes.’ So that’s where we are.

I want to talk about a few things that were alluded to a little bit and some that were not. One in particular is the issue of continuity in our elections. This is something that Jerry has been a leader on for a very long time.⁸ I will tell you that I first began to write and think about this in the aftermath of 9/11. My colleague John Fortier and I shortly after that wrote a piece, If Terrorists Disrupt an Election?.⁹ What I realized in the aftermath of 9/11 was that we have no provisions in place to deal with a kind of attack that could eliminate a majority of Congress and that we have Presidential Succession Act that is in no way is prepared for the realities of our modern era, much less for continuity in the Supreme Court.¹⁰ But it also became clear that if we had some sort of incident that disrupted an election in parts of the country, what would that mean?

And now we have the additional twist of natural disasters becoming more prevalent, more violent, and extending into the election period. So I wrote another piece about this six years ago in the aftermath of the 2018 midterm elections.¹¹ Hurricane Michael at that point, three weeks before the election, was the first, but won’t be the last, Category 5 hurricane to go up the Gulf Coast.¹² It narrowly missed Pensacola, Florida on the panhandle and basically just hit fairly rural and remote areas, small towns, and they had enough time to recover.¹³ That would not have been the case if it had devastated Pensacola. If that had happened, we would not have Ron DeSantis as the governor of Florida, who won the election thanks to solidly red Pensacola——by an eyelash.¹⁴ For the same reason, we wouldn’t have Rick Scott running for re-election right now. That was a midterm election, but it became clear that, as we have seen now, the hurricane season that used to pretty much end well before we got into the middle part of October, now extends through November.¹⁵ And while we may not have another hurricane on the horizon, I just looked at weather.com this morning. There doesn’t appear to be another tropical storm emerging in the Caribbean.

But we know what damage was done with Helene and Milton, and we know that Andy Harris, a right-wing congressman from Maryland, gave a public presentation saying that because of the devastation in Republican areas of North Carolina, the legislature should just declare that state for Trump.¹⁶ Now, that’s farcical, and it’s not going to happen. But it reminds us that if we do get some event that takes out a portion of the country at a time of an election, as happened, and as Jerry wrote about eloquently with Hurricane Sandy,¹⁷ and what we saw with 9/11 that day where there were state and local primary elections in New York City, and with Katrina in New Orleans, there are provisions and ways of postponing, especially if they’re primary elections.

But we don’t really have much of an answer, or any of an answer, except what we have seen in the revision of the Electoral Count Act, which covers a disruption caused by what is now in that act a force majeure, meaning a natural disaster, right around the time of an election.¹⁸ The solution that lawmakers came up with in the Electoral Count revisions, I believe, is wrongheaded and dangerous. The solution is basically that the relevant state officials, in their discretion, if there is a disruption, can extend the voting period beyond the election.¹⁹ So imagine if we have a close election and Florida hangs in the balance, and Ron DeSantis says, “you know what, we’ve had this terrible hurricane, we’re going to postpone for a couple of days” where everybody knows that it will be Florida that will make the decision. And there will be, of course, a massive effort to tilt the remaining votes. This is not like an election where you go in either early or on an election day and you don’t know what the outcome is going to be. This would be one where, subsequent to everybody else voting and the results coming out, we will have a pretty clear picture of where we are and what would be.

So the ability of state officials to manipulate this process is something that we need to grapple with. And it seems to me we need to have, at minimum, some kind of independent, blue-ribbon panel, possibly consisting of nonpartisan election officials or former election officials, that would make some judgment if we had some sort of disruption. And it is almost inevitable, given what we’ve seen with warming seas, climate change, and the extension of hurricane season, along with other kinds of violent storms—it was the tornadoes that caused the most damage in the aftermath of Hurricane Milton—that could disrupt an election.²⁰ So I want to put that out there, as Jerry has just done, in a very good piece in Just Security²¹ as something that, in the future, we are going to need to grapple with and find a better solution than we have.

I want to talk a little bit about the contingent election possibility, one that both Rick²² and Adav²³ raised in the last panel. I would note that there’s a very good piece by Larry Tribe and his legal colleagues Neil Buchanan and Michael Dorff in The Washington Post today²⁴ pointing out the specific language of the 12th Amendment—also something that Adav had at least alluded to—that the 12th Amendment says that the election goes to the House if no one gets a “majority of the whole number of Electors appointed.”²⁵ So what that means is that the strategy that the Trump insurrectionists used the last time—to try and postpone the count and have at least some states’ electoral votes not appointed formally—just wouldn’t work because you would change the denominator to make that whole number count.²⁶ Now that makes it less likely that we will see some sort of scenario with a contingent election, but not completely out of the question.²⁷

There are ways in which we could still see the election turned to the House, and that would be if, in a fashion that one could deem contrary to the Constitution and the law, Congress or state officials decide to adopt another slate of electors.²⁸ Now that’s not something that seems feasible. As our panelists said, raising the threshold to twenty percent in both Houses seems to make it much less likely.²⁹ But I spent most of my career around Congress, and I know these members of Congress. And I’m not at all sure, especially under the threat of violence against them.

Keep in mind, just to pick one example, that Fred Upton, a terrific Republican member of Congress for some decades who voted for the second impeachment of Donald Trump, he and his wife, Amie, were met with large numbers of credible death threats, which got him to retire from Congress.³⁰ But there are plenty of others who stayed. And if you watched or heard about some of what Donald Trump said last night at Madison Square Garden, there was one fairly chilling allusion, which was, in effect, “I’ve got a big surprise for you coming out of the House. Just wait.”³¹

And we know what Mike Johnson, the Speaker of the House, has said. It is not at all out of the question, if you know anything about the Republican members of the House, that there would easily be a substantial number trying to find a way to distort those outcomes on or before January 6th, which actually makes the House elections, and the perhaps toss-up for a majority, an even more significant feature this time around. We might have a surprise.

I will say I responded to my friend Larry Tribe with his piece offering a clear textual interpretation of the language of the 12th Amendment. And I wrote back to Larry, and I said, “so what that means is that there would be a 5-4 Supreme Court decision on this, and it’s 40 percent that it could go the way you suggest.” It’s not at all clear to me that we can count on the courts this time the way we counted on the courts the last time. And that’s particularly true of the Supreme Court.

Now, just one other thing I’d want to mention in the time we have left, and that is that while we have built in many more protections, while we have learned some lessons from 2020, while the other side has learned some lessons as well and is trying to use that as a beta test going forward, there’s one other feature here that we need to keep in mind, and that is violence and the threat of violence. We have somewhere between 500 and 1,500 constitutional sheriffs in counties around the country, mostly small counties.³² We used to have Joe Arpaio in Maricopa County in Arizona, now at least he’s gone.³³

The “constitutional sheriff” movement—these are elected sheriffs—is one that says that they take their oath to God and to Jesus, and that constitutional authority here is one that they interpret on their own.³⁴ Many of them have recruited militias to work with them, and we are very likely to see disruption in some counties.³⁵ Now, that disruption is likely to be in small and more rural counties, and given the salutary reforms of the Electoral Count Act, will not be as disruptive of an election outcome as we would have otherwise. But violence that could occur around the time of the election, intimidation of voters, disruption of polling places, things like what we just saw today—a ballot box in Vancouver, Washington, set on fire, filled with ballots—is something that we have to keep in mind.³⁶ To its credit, the Justice Department has created a task force to work on this,³⁷ but I am deeply disappointed that we have not had our Attorney General step up with a major press conference alluding to the long prison sentences given to violent insurrectionists from January 6th, and making it clear that anybody who uses violence or the threat of violence to disrupt an election is going to face the full arm of the law and face a possible prison sentence.

And I do believe that what’s happened with the aggressive prosecution of now over a thousand people who stormed the Capitol on January 6th. Prison sentences, in some instances going up well into the double digits in years, has had a deterrent effect on other violence up to now.³⁸ But we must recognize the possibility of violence and also recognize that U.S. attorneys, Justice Department officials, and others are ill-equipped to deal with this possibility across the large number of counties out there, not just the ones with constitutional sheriffs, a larger threat to the stability of the society than just elections themselves, but with the possibility of violence and intimidation that we’re going to see going forward. And it’s not clear many states are completely on top of this and will be able to deal with it as well. It’s an unfortunate reality of where we are as a country. We have, as Daniel Patrick Moynihan said many times and wrote, “defined deviancy down.”³⁹ And that includes the kind of outrageous and despicable language and allusions that we saw last night⁴⁰ and that we have seen throughout the course of this campaign. But it also includes the tactics and behavior of people in the country that are no longer viewed universally with the same contempt that we used to see it have in the past.

So we have a lot of threats ahead. It is wonderful that we have seen, in a salutary bipartisan way, the response to the flaws in the Electoral Count Act,⁴¹ taking away some of the worst-case possibilities of what could happen in the aftermath of a close election, or even an election that isn’t necessarily that close. We know that we also have substantial numbers of election officials themselves who are going to do what they can to disrupt the election outcomes. And we know that we have other threats present. We’re in an unprecedented time, a time that is an existential moment for our democracy. And it’s great that we have lawyers and others who have stepped up to the plate, but we’re far from out of the woods, whatever happens on November 5th.

Emeritus scholar at the American Enterprise Institute and co-host of the podcast Words Matter. These remarks were presented as part of the symposium “The 2024 Presidential Election: Are We Ready?” at Fordham University School of Law on October 28, 2024. The remarks have been lightly edited, and footnotes have been added, but they retain the form and style of the oral remarks.

References:

1
Board of Directors, Why Tuesday?, https://whytuesday.org/board [https://perma.cc/2X5B-9Y7S] (last visited Jan. 30, 2025).
2
See TED-Ed, Why do Americans vote on Tuesdays?, YouTube (Apr. 10, 2012), https://www.youtube.com/watch?v=9WvoGlQ7zH8.
3
See Adav Noti, The Electoral Count Reform Act in 2024, 3 Fordham L. Voting Rts. & Democracy F. 167, 170 (2024).
4
Michael T. Morley, Postponing Federal Elections Due to Election Emergencies, 77 Wash. & Lee L. Rev. Online 179, 183 (2020) (citing Act of Jan. 23, 1845, ch. 1, 5 Stat. 721 (codified as amended at 3 U.S.C. §§ 1–2 (2018))).
5
John M. Cunningham, Why Are U.S. Elections Held on Tuesdays?, Brittanica, https://www.britannica.com/story/why-are-us-elections-held-on-tuesdays [https://perma.cc/6HZM-66QE].
6
Id.
7
Id.
8
See, e.g., Jerry H. Goldfeder, In Case of Election Crisis, Congress Needs to Be Prepared, U.S. News (Oct. 15, 2008), https://www.usnews.com/opinion/articles/2008/10/15/in-case-of-election-crisis-congress-needs-to-be-prepared [https://perma.cc/4YF2-ZSHY]; Jerry H. Goldfeder, Cross Your Fingers for an Uneventful Election Day, City & State N.Y. (Nov. 4, 2016), https://www.cityandstateny.com/opinion/2016/11/cross-your-fingers-for-an-uneventful-election-day/182536 [https://perma.cc/8NPR-Y9DR].
9
See generally John C. Fortier & Norman J. Ornstein, If Terrorists Attacked Our Presidential Elections, 3 Election L.J. 597 (2004).
10
Id. at 607–08.
11
Norman J. Ornstein, Our Elections Are Wide-Open for a Constitutional Crisis, Wash. Post (Oct. 26, 2018), https://www.washingtonpost.com/opinions/our-elections-are-wide-open-for-a-constitutional-crisis/2018/10/26/317cb7e0-d86a-11e8-83a2-d1c3da28d6b6_story.html [https://perma.cc/EA89-MNED].
12
Id.
13
Id.
14
Florida Governor Election Results 2018, Politico (Jan. 10, 2019), https://www.politico.com/election-results/2018/florida/governor [https://perma.cc/79BB-SGM2].
15
Judson Jones, A Once-Dormant Hurricane Season Is Spinning into Action, N.Y. Times (Oct. 4, 2024), https://www.nytimes.com/2024/10/04/weather/hurricane-season-updates-october.html [https://perma.cc/4ZNK-S47C].
16
Ali Vitali, Kyle Stewart & Scott Wong, Far-Right Congressman Suggests N.C. Legislature Should Consider Handing Electors to Trump on Election Day, NBC News (Oct. 25, 2024, 4:30 PM), https://www.nbcnews.com/politics/2024-election/far-right-congressman-suggests-nc-legislature-consider-handing-elector-rcna177337 [https://perma.cc/6DQS-38JV].
17
Jerry H. Goldfeder, Cross Your Fingers for an Uneventful Election Day, City & State N.Y. (Nov. 4, 2016), https://www.cityandstateny.com/opinion/2016/11/cross-your-fingers-for-an-uneventful-election-day/182536 [https://perma.cc/8NPR-Y9DR].
18
Holly Idelson & Genevieve Nadeau, Understanding the Electoral Count Reform Act of 2022, Protect Democracy (Sept. 18, 2024), https://protectdemocracy.org/work/understanding-the-electoral-count-reform-act-of-2022 [https://perma.cc/8L8X-PPA7].
19
See id.
20
Dinah Voyles Pulver, Hurricane Milton Churned out 41 Tornadoes–and The Count’s Not Over Yet, USA Today (last updated Oct. 19, 2024, 7:39 AM), https://www.usatoday.com/story/news/nation/2024/10/19/hurricane-milton-florida-tornadoes/75732373007 [https://perma.cc/HVT3-S7U3].
21
Jerry Goldfeder, Natural Disasters, Terrorist Disruptions and Presidential Elections, Just Sec. (Oct. 21, 2024), https://www.justsecurity.org/104065/natural-disaster-terrorism-elections [https://perma.cc/JY6W-MUFE].
22
Richard H. Pildes, Litigating the 2024 Election, 3 Fordham L. Voting Rts. & Democracy F. 155 (2024).
23
Noti, supra note 3, at 169.
24
Neil Buchanan, Michael Dorff & Laurence Tribe, Stop Worrying That the House Will Decide Who Wins the Election, Wash. Post (Oct. 28, 2024) https://www.washingtonpost.com/opinions/2024/10/28/election-house-trump-steal [https://perma.cc/LL3T-8LE7].
25
U.S. Const. amend. XII.
26
Electing the President: From Election Day to the Joint Session, Campaign Legal Ctr. 13 (2023).
27
See Aisha Woodward & Beau Tremitiere, A Contingent Election, Explained, Protect Democracy (Aug. 22, 2023), https://protectdemocracy.org/work/a-contingent-election-explained [https://perma.cc/PN4K-HTUX].
28
Campaign Legal Ctr., supra note 26.
29
See, e.g., Noti, supra note 3, at 169.
30
Anna Gustafson, ‘I’m Still Subject to Death Threats,’ Upton Says as He Prepares to Leave Congress, Mich. Advance (Dec. 18, 2022, 5:25 AM), https://michiganadvance.com/2022/12/18/im-still-subject-to-death-threats-says-upton-as-he-prepares-to-leave-congress [https://perma.cc/6NDT-KP9D].
31
Lizzie Hyman, Donald Trump Says He Has a ‘Little Secret’ with the House Speaker That’s Having a ‘Big Impact’ on Election, People (Oct. 28, 2024, 2:55 PM), https://people.com/donald-trump-little-secret-mike-johnson-8735510 [https://perma.cc/EEC2-QVGM].
32
Leah Feiger, Meet the Far-Right Constitutional Sheriffs Ready to Assert Control if Trump Loses, Wired (Oct. 24, 2024, 12:58 PM), https://www.wired.com/story/constitutional-sheriffs-election-denial [https://perma.cc/URL6-EXPN].
33
Jude Joffe-Block & Terry Greene Sterling, Joe Arpaio: Inside the Fallout of Trump’s Pardon, The Guardian (Apr. 8, 2021, 6:00 AM), https://www.theguardian.com/us-news/2021/apr/08/joe-arpaio-sheriff-arizona-donald-trump [https://perma.cc/A86V-DHUW].
34
Feiger, supra note 32.
35
Id.
36
Chris Boyette, Police Are Searching for the Person Who Set Ballot Boxes on Fire in Washington and Oregon. Here’s What We Know, CNN (Oct. 30, 2024, 1:12 PM), https://www.cnn.com/2024/10/29/us/ballot-box-fires-what-we-know/index.html [https://perma.cc/J8NB-GTWY].
37
Election Threats, U.S. Dep’t of Just., https://www.justice.gov/voting/election-threats [https://perma.cc/4ABU-YAJJ] (last visited Jan. 31, 2025).
38
See, e.g., Alan Feuer, Jan. 6 Rioter Sentenced to 20 Years for Assaults on Police, N.Y. Times (last updated Aug. 27, 2024), https://www.nytimes.com/2024/08/09/us/politics/jan-6-sentence-david-dempsey.html [https://perma.cc/FU82-3D6Z].
39
Daniel Patrick Moynihan, Defining Deviancy Down, 62 Am. Scholar 17 (1993).
40
Shane Goldmacher, Maggie Haberman & Michael Gold, Trump at the Garden: A Closing Carnival of Grievances, Misogyny and Racism, N.Y. Times (Oct. 27, 2024), https://www.nytimes.com/2024/10/27/us/trump-msg-rally.html [https://perma.cc/XY4J-QQ4C].
41
See Idelson & Nadeau, supra note 18.

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Preparing For Election Disruptions in 2024

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