The Cybersecurity 202: The Supreme Court could decide the fate of mail voting in two swing states

Pennsylvania Republicans, meanwhile, are already asking the U.S. Supreme Court to reverse a ruling by the state’s highest court that allows ballots to be counted if they arrive up to three days later. 

In both cases, the ballots must be postmarked by Election Day.

The two cases dramatically raise the chances the U.S. Supreme Court could determine the course of the election

If the Wisconsin decision stands, it could dramatically reduce the number of mail ballots that get counted in the state. 

U.S. District Judge William Conley originally ordered the six-day window for late-arriving ballots after a chaotic primary early in the pandemic.

During that April 7 primary, thousands of people didn’t receive requested mail ballots until shortly before Election Day and others didn’t receive them at all. The state decided to accept ballots postmarked by Election Day that arrived up to five days later. 

A whopping 79,000 ballots arrived during that time

It’s unclear whether a similar amount will arrive after Election Day this time. On the one hand, far more people are likely to vote in the general election than in a primary and interest in mail voting has surged as the pandemic has progressed. 

On the other, both parties have been pushing their voters to cast mail ballots as early as possible to avoid any risk they won’t be counted. 

“People will vote late. That happens in every state in every election,” Richard L. Hasen, an election law professor at the University of California at Irvine, told me. “But now there’s going to be even more of a push for people to get their ballots in as early as possible, and that message seems to be getting through to voters.” 

Democrats could suffer more if ballots arriving after Election Day aren’t counted because more Republicans may vote in person due to President Trump’s attacks on mail-in voting.

About 73 percent of Joe Biden supporters and voters leaning toward Biden plan to vote by mail or early in person, according to a survey from the Pew Research Center released this morning. That compares to just 45 percent of Trump supporters and those leaning toward voting for the president. 

Wisconsin voters have requested about 1.3 million mail ballots so far and returned more than 610,000 of them, according to data compiled by Michael McDonald, a University of Florida political science professor. 

It’s highly unlikely the Supreme Court will side with Wisconsin, Hasen said.

In that case, U.S. District Judge J. Michelle Childs nixed a requirement South Carolina mail voters get a signature from a witness but the high court reinstated it. The witness requirement is an anti-fraud measure Republicans support but Democrats say is overly burdensome during the pandemic. 

The justices’ reasoned that federal courts shouldn’t overrule elected officials in voting matters and that it’s too close to the election to make big changes without confusing voters

“I think the South Carolina case sent a strong signal that the easing of rules during the pandemic, if they’re opposed by the state, are likely to be rejected,” Hasen said. 

Republicans hailed the appeals court ruling in Wisconsin as a major victory. Here’s Republican National Committee Chairwoman Ronna McDaniel:

Judge Ilana Diamond Rovner, a George H.W. Bush appointee, was the lone dissenter in the 2-to-1 court ruling that scrapped the extension. She called the ruling a “travesty.” 

We cannot turn a blind eye to the present circumstances and treat this as an ordinary election,” she wrote. “Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices. Good luck and G-d bless, Wisconsin. You are going to need it.”

Democrats might fare better in Pennsylvania. 

In that case, the state Supreme Court ordered the three-day extension for accepting mail ballots, and the Supreme Court might be more amenable to a state court making such a move, Hasen said. 

The court is expected to rule in that case in the next couple of days. 

The voting cases that hit the high court before the election could be just a taste of what will come after. 

Republicans and Democrats have begun preparing for a raft of possible fights in the courts and in Congress if there’s not a clear victor on election night or if Trump contests the results and refuses to transfer power, Amy Gardner, Rachael Bade and Elise Viebeck report. 

“Even in states where counting is completed on Nov. 3, a very close margin is likely to prompt the campaigns to scrutinize ballots for opportunities to challenge their eligibility, over issues such as signature matching, witness signatures or the use of an outer security envelope where one is required,” they report. 

An unknown element in those fights will be whether Republicans manage to confirm Judge Amy Coney Barrett, who could be a pivotal swing vote, to replace deceased Justice Ruth Bader Ginsburg.

Wisconsin and Pennsylvania could be pivotal in those fights even if they aren’t still accepting ballots after Election Day. That’s because of laws barring officials there from processing any mail ballots before Election Day, increasing the chances final vote tallies won’t come until days or weeks later. 

Mail ballots typically take longer to process than in-person ones because of the time spent reviewing signatures and other verification measures. Scanning those ballots can also take longer because it’s done in a central location rather than at polling sites dispersed across the state. 

The keys

Ailing from the coronavirus, Trump is still attacking mail ballots and anyone who defends them. 

The president savaged mail voting and falsely claimed that it is prone to massive fraud in a phone interview with Fox News’s Maria Bartiromo, Philip Bump reported.  

Trump repeated unfounded claims that mail ballots have been found in riverbeds, among numerous other false claims.  

He also attacked FBI Director Christopher A. Wray for appearing in a video with other top administration officials pledging to protect the election against foreign interference, including mail voting. And he played down the threat of interference in the election by Russia or China, which intelligence officials have said is their greatest concern. 

“He talks about, you know, even the voting thing, that he doesn’t see the voting ballots as a problem,” Trump said. “There’s thousands of ballots right now! You pick up any paper in the country practically, and they’re cheating all over the place on the ballot. So how is that not a problem? That’s a much bigger problem than China or Russia. If you look at it, it’s a much bigger problem.” 

Former officials say John Ratcliffe is politicizing intelligence. 

The criticism comes after the director of national intelligence declassified Russian intelligence information about the Hillary Clinton campaign that critics say probably is unreliable, Shane Harris reports. 

That effectively breaks a promise Ratcliffe made during his confirmation hearings to keep politics out of intelligence, the intelligence veterans say.

“What we are seeing here is the worst-case scenario that was raised by the Democrats during Ratcliffe’s confirmation of putting such a political loyalist and national security neophyte into this important position,” Marc Polymeropoulos, a former CIA officer who oversaw operations in Europe and Russia, told Shane. “He is cherry-picking intelligence, and seriously risks exposing sources and methods for absolutely no reason other than to promote and protect the president before the election.” 

Facebook permanently banned an Arizona marketing firm running a domestic ‘troll farm’ in support of Trump.

The firm, Rally Forge, was “working on behalf” of Turning Point Action, an affiliate of Turning Point USA, the prominent conservative youth organization, Facebook’s investigation found. 

The company took down 200 accounts and 55 pages on the social network, as well as 76 accounts on the company’s subsidiary Instagram, Isaac Stanley-Becker writes.

A Washington Post article last month detailing the secretive campaign that largely enlisted teens prompted the company’s action. “The fake accounts, some with either cartoonlike Bitmoji profiles or images generated by artificial intelligence, complemented the real accounts of users involved in the effort, which largely entailed leaving comments sympathetic to President Trump and other conservative causes across social media,” Isaac wrote.

Facebook did not penalize Turning Point USA or its president, Charlie Kirk, who spoke at the Republican convention. The company could not determine the extent to which the group’s leaders were aware of the use of fake accounts and other violations. 

Global cyberspace

Facebook and Twitter took down more than a dozen disinformation networks operating globally.


  • The Knight First Amendment Institute at Columbia University is hosting an online symposium on Data and Democracy on October 15 and 16.
  • New America will host an event “Will We Ever Vote on Our Phones” on Oct. 21 at noon.
  • The USC Election Cybersecurity Initiative will host a final workshop on the lessons from the workshops its hosted in 50 states leading up to the election on October 28 at 1:30 p.m.

Secure log off

Halloween is coming, folks.

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