‘What makes me nervous.’ A voting expert on what could go wrong or right on Nov. 5. | Opinion
Early voting starts on Thursday in Kentucky, putting us that much closer to an election that could be one of the most momentous in our lifetime.
Not so much here. It’s a fairly humdrum election for the commonwealth, with the exception of Amendment 2, the proposed constitutional amendment that would allow public school funding to be given to private schools. Kentucky’s hardworking election officers run a tight ship.
What I’m more worried about is violence and pandemonium elsewhere in the nation on Election Day or the days after. With the presidential polls this close, we may not know the results Tuesday night or Wednesday or Thursday. Or even later.
When I get nervous, it’s good to call in the experts, and we happen to have one right here in Lexington. Josh Douglas is a professor of constitutional law at the University of Kentucky and the author of “The Court v. the Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights.”
He’ll be discussing the book and all things election-related at a panel at the Kentucky Book Festival on Nov. 2 at 10 a.m. at Joseph Beth Booksellers.
Douglas said he’s feeling the usual amount of nerves about the first presidential election since 2020, when Donald Trump supporters tried to overthrow the certification of the vote.
“What makes me nervous is a few things, like the election comes down to a swing state and the margin is so small that these lawsuits in Pennsylvania and elsewhere could actually make a difference,” he said. That could lead to another 2000 Bush v. Gore scenario that would end up in the U.S. Supreme Court.
He’s referring to at least one lawsuit over how Pennsylvania counts absentee ballots.
What else makes him nervous? An electoral college tie of 269-269 that would send the results to the House of Representatives to be voted on by state delegation, that is to say 50 votes. Whoever gets 26 votes would win. The Senate would elect the vice president with the same simple majority.
“That would introduce so much chaos and concern,” he said.
However, Douglas and many other experts are heartened by the passage of the Electoral Count Reform and Presidential Transition Improvement Act of 2022, a bipartisan update of the original 1887 law. It changed some of the weaknesses exploited by Trump and his lawyers in 2020.
First, Douglas explained, there can only be an objection to a state’s submission of results if it’s supported by 20% of the House and Senate. Second, remember all those fake elector slates? Now if a state submits competing slates of electors, only the one signed by the state’s governor is legitimate.
The law also clarifies that the vice-president’s role is purely ministerial, so he or she does not have the discretion to count another set of votes, as Trump’s lawyers insisted Mike Pence could do in 2020.
Kentucky should stay calm. Trump is projected to win by double digits here. Trump carried Kentucky by 30 points in 2016 and by 26 points in 2020.
But just because that’s a good certainty does not mean people should stay home and not vote.
There’s Amendment 2, and there’s a lot of local races, like school boards and city councils, and once again every vote does count.
If you don’t believe that, Douglas said, look to Virginia in 2022, where one single vote created a 50-50 split in the House of Delegates, the first power-sharing agreement in that body since the 1990s.
“What the policy agendas are came down to one vote,” he said. “You can never predict when that’s going to happen. You might think your vote may not make a difference in a presidential election, but it can make a lot of difference in others.”
We don’t have to argue about patriotism. The most patriotic thing you can do is a cast a ballot. And in Kentucky, you can do it Thursday, Friday, Saturday and Tuesday as part of the state’s early voting system.
Other states are seeing record early voting, and everyone seems to think turnout will be high.
The arguments have been argued. Decisions have been made.
All that’s left is to keep calm and vote.
