SPOILER ALERT: This contains spoilers for Season 4 of HBO’s Succession.
The latest season of HBO’s Succession centers around two ground shifting events—the death of family patriarch and global media titan Logan Roy, and a U.S. presidential election. Perhaps unwittingly, the show’s writers put a spotlight on an ongoing vulnerability in our system for electing the president: the still unfinished work of Electoral Count Act reform.
The election subplot plays on the worst fears of our recent political history—razor thin election margins, existential fear of the other party’s candidate, exit polling head fakes, accusations of voting irregularities, ANTIFA protests, and violent threats against election workers. The fictional ATN (American Television Network) familiarly tells us it could be “the most important election in our lifetime.”
On Election Day, there is a fire at a ballot tabulation center in one of the two decisive states. Potentially 100,000 ballots may have been destroyed—most of them likely for the Democrat. Accusations fly. Democrats suspect the Republican candidate’s supporters of starting the fire. Republicans claim it was an ANTIFA false flag attack. Some reports speculate the cause was electrical failure. Siobhan Roy, whose interests lie with the Democratic candidate, insists the Wisconsin results can’t be certified and there would have to be a revote. Her brother, Roman, whose interests lie with the Republican, maintains that the ballots are lost, the mess could never be sorted out, and the network should call the state for the Republican. The network’s chief election analyst advises “there’s nothing in Wisconsin law that really covers what to do.”
This is indeed a nightmare scenario. With the 2020 election and its aftermath not far behind us, viewers would be right to wonder whether the U.S. is prepared for such a scenario. Emergencies and other disruptions to routine voting are not new. Hurricanes, forest fires, tornadoes, power failures, flooding, protests, and even terrorist attacks have impacted our election process. Be assured, state and local election officials have in place a variety of emergency and continuity of operations plans meant to allow voting to continue even under the worst of unforeseen circumstances. Any widespread loss of cast ballots would likely spur extensive litigation, with the courts deciding the ultimate remedy before a state certified its results.
The Succession scenario still has interrogatory value. Federal law requires that presidential electors be selected on Election Day, potentially limiting the breadth and efficacy of any remedies. Another lesson from 2020, attempts to accommodate voters in difficult circumstances can be used to question the legitimacy of a state’s results when they reach Congress. To that end, late in 2022, Congress enacted bipartisan reforms to shore up many of the vulnerabilities in the Electoral Count Act, the law that governs the process for counting Electoral College ballots. Unfortunately, states may not be able to avail themselves of new provisions that might shepherd them through such a disaster.
Among the many reforms passed in 2022 was an attempt to fix the so-called “failed election” provision. Previously, this vague section of the Electoral Count Act simply stated:
“Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
One legal scholar likened this to a “loaded weapon lying around in our election system.” The text seemingly empowers state legislatures to choose when and how to replace electors, regardless of the outcome of the vote. While never used, some of former President Trump’s supporters favored states declaring their elections failed in 2020 after Election Day. Congress addressed the risks inherent in this section of the law with new language providing that:
“…in the case of a State that appoints electors by popular vote, if the State modifies the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day, ‘election day’ shall include the modified period of voting.”
The new language seeks to foreclose any after-the-vote mischief by requiring states to adopt any emergency procedures for extraordinary and catastrophic events prior to Election Day.
As the Succession scenario shows, Congress was wise to maintain and modify rather than eliminate contingencies for events that totally disrupt voting. In fact, supporters of the original failed election provision were worried about natural disasters and other events disenfranchising voters. For the promise of these new reforms to be fully met, however, states need to update their election codes to outline the procedures that will be activated under these circumstances, as federal law now requires. While some states have long had emergency election procedures in place, not all do. State legislatures should act as soon as possible to put them in place before real life imitates art.
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