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To anybody interested in contesting the 2024 election: Go right ahead. But please take a lesson from (very) recent history. If you cross the line, there will be consequences. Here’s a handy list of some things you might be considering that are sure to land you in varying depths of shit.
First, check your state’s rules, and, if permitted, request an official recount. Most (not all) states allow some form of recount, either automatic or by request, typically depending on the vote margin. You may also have a legal right to request a post-election audit (emphasis on post-election), but remember, this is a mechanical process and not some inquisition for digital hanging chads. If you’ve already filed a lawsuit challenging mail-in ballots or vote tabulation, then best of luck to you. But to manage expectations, keep in mind the broad legal principle that courts shouldn’t make changes to voting methodology shortly before an election. So for the sake of your lawsuit, I hope you filed it a long time ago.
I’ll assume nobody’s seriously thinking of storming anything. If you need a reminder on that, here’s a handy database, created by the United States Department of Justice, to track the 1,200-plus federal criminal prosecutions of folks who attacked the Capitol on January 6, 2021. Click around for some specific reminders: You could get 35 to 43 months, like Charles Donohoe of Kernersville, North Carolina, or 57 months, like Ryan Swoope of Perry, Ohio. And for those considering inciting a mob, or sowing chaos to create delay and confusion, even from a safe physical distance — highly recommended that you give that a pass.
Feeling like you might want to seek a remedy in court, rather than at the end of a sharpened flagpole? Okay, but let’s be responsible. As we discussed up front, go ahead and request a recount, if your state’s law allows. But let’s steer clear of making up facts and inventing conspiracy theories and filing patently false court papers. That’ll get you indicted, sued, or disbarred — maybe even all three, if you aspire to become the next Rudy Giuliani.
Relatedly: If anybody approaches and asks you to sign on to a slate of electors for the candidate other than the one who your state actually voted for, that’s a red flag. I recommend you politely decline. A few dozen folks tried that last time, and now many of them are criminal defendants. Here’s another handy database, compiled by Citizens for Responsibility and Ethics in Washington, tracking those cases. (Anytime it’s in database form, take that as a warning.)
Another sure way to avoid landing at the defendant’s table in criminal court: Don’t tap into voting machines, either digitally or with a hammer and a screwdriver. Yes, some states allow for post-election audits, but the thing is there’s no do-it-yourself option on the menu. Leave it to the actual public officials in charge of elections.
This next part is directed at an admittedly niche audience. If you happen to be a leading constitutional scholar, or if you sometimes pretend to be one, let’s tread carefully with bad-faith legal justifications for coup attempts. I’m all for creativity and aggression in legal proceedings. But when you know your argument is doomed, and when you make it to help out a broader effort to throw the electoral system into chaos, you do so at your own risk. You might find yourself listed as a co-conspirator in a federal case (not great for the old professional reputation) or even facing state-level indictment.
Finally, let’s watch what we say out there. Yes, it’s an election, and yes, political speech is entitled to the broadest First Amendment protection. But if we intentionally lie about folks, they might sue for defamation. If you feel like promoting bogus theories about election fraud on a broad scale, I hope you have $787 million or so to spare. Or if you’d just prefer to fabricate and spread vicious lies about completely innocent election workers, $150 million or so should do the trick.
Don’t let me bring the mood down. The election is right around the corner, and it’s a wonderful time to express and exercise the whole gamut of constitutional rights. Vote, talk smack, knock on doors, post on social media, stare at the shaky probability needle on those data-analytics websites, donate money to your favorite candidate, give somebody a ride to the polling place (totally legal, by the way), get in arguments with your family members over text, call in to a radio show, put up a lawn sign, watch the returns, yell and scream in delight or frustration. It’s a dramatic time. It’s how our system works. Lean into it.
But let’s also learn a lesson from the past few years. This isn’t The Purge, a special day when no laws apply. The lines are fairly well defined now, given all we’ve been through the past four years, and they’re pretty far out on the extremes. So let’s respect those boundaries, let’s protect ourselves, and let’s practice some democracy.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
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