ELECTION-RELATED INFORMATION
It is crucial for members of the Jewish community to understand what makes an election free and fair so we can educate and empower each other to participate in full.
During the tumultuous 2020 election season, there was a tremendous amount of information circulating by the hour. We worked in partnership with the National Taskforce on Election Crises, a cross-partisan consortium of experts in election law, to surface and vet information to directly help you and your colleagues navigate the election season while avoiding detours or speculations that might detract from the work to ensure a nonviolent, free and fair election. We will continue to update this page with information for free and fair elections moving forward.
QUICK LINKS
What Happens During the Presidential Transition Period?
Do’s and Don’ts for Communicating About Violence
Protests & Public Safety: A Guide for Cities and Citizens
Election Recount Procedures by State
Deployment of the Military for Law Enforcement
What Nonprofits Can Do in a Contested Election
Addressing Incomplete Early Returns and Premature Claims of Victory
Lack of Presidential Powers to Postpone or Cancel Election
Election Contests (with information by state)
State-specific guidance on voter intimidation laws
NOTE: You need not attribute anything you read below to Lippman Kanfer Foundation for Living Torah
What is a free and fair election?
According to the National Task Force on Election Crises, it has six key elements:
A free and fair election is not a partisan issue.
All eligible voters should be able to vote and have their votes counted.
The election should be consistent with the law of the land.
Americans deserve timely, accurate facts about the election.
Officials are given time to count all votes cast, especially when public health, climate, or other extenuating circumstances present challenges to the process.
Everyone should avoid making bad faith, unsubstantiated claims about “rigging” or “stealing” the election.
Here is a social media graphic series to share with your community members.
What Happens During the Presidential Transition Period?
The peaceful transition of power is a hallmark of American democracy. Considering the size of the U.S. government, the importance of its responsibilities and the short time between the election and the inauguration, transitions are always a tall order. But the stakes could not be higher this year – indeed, this will be the most important transition since 1932 when the country was in the midst of the Great Depression.
This brief memo from the non-partisan Partnership for Public Service’s Center for Presidential Transition outlines the various legal and normative expectations of both outgoing and incoming presidents.
INFORMATION ON THE TRANSITION PROCESS
A typical presidential transition lasts 75 days. Over that time, an incoming president must begin mobilizing plans for more than 4,000 political appointments, overseeing a budget of nearly $4 trillion, and managing a huge organization that employs more than two million federal employees and more than two million military and reserve forces.
The first step in a presidential transition happens when the General Services Administration approves the utilization of the $6.3 million allocated to support transition activities for an incoming administration and triggers communication with federal agencies that will require presidential appointees. This support becomes available as soon as the General Services Administrator ascertains the apparent successful candidate in the presidential election. In the 2020 election, this happened 16 days after major news networks called the election.
Certain transition activities are at the discretion of the President and can actually proceed without this ascertainment. For example, in the aftermath of the disputed 2000 election, President Clinton approved the provision of classified intelligence briefings for then-Texas Gov. George W. Bush two weeks before the General Services Administrator recognized Bush as the winner. President Clinton believed that it was in the national interest for President-elect Bush to be kept informed about critical national security issues.
The Presidential Transition Act of 1963 requires the outgoing administration to provide the President-elect with a detailed classified summary of threats to national security, major military or covert operations, and more as soon as possible after the election.
Along with the legal requirements, sitting presidents have extended certain courtesies to their successors in the interests of national security. One notable example concerns the President’s Daily Brief, the highly classified intelligence briefing received by the president, and whether it is made available to presidents-elect. President George W. Bush personally briefed President-elect Obama on covert programs. During the 2016 transition, National Security Advisor Susan Rice spent more than 12 hours personally briefing her designated successor, Michael Flynn.
Presidents-elect start announcing intended nominees for top positions soon after the election is called. During the 2020 election season, this process did not begin until December.
Do’s and Don’ts for Communicating About Violence
Over Zero provides clear guidance: leaders must respond promptly and clearly to violence, intimidation, and misinformation; they must not inadvertently add momentum or legitimacy to the very things they’re trying to prevent or resolve. It also includes explicit advice for responding to violence at an election-related protest.
Protests & Public Safety: A Guide for Cities and Citizens
This toolkit offers detailed legal analysis suitable for municipal and state attorneys, as well as more general legal guardrails, best practices, and frequently asked questions intended to be more easily accessible to non-lawyer elected and appointed officials, concerned residents, and activists. First Amendment rights are vital to our democracy, but they do not extend to violent activity.
Election Recount Procedures by State
Forty-three states and the District of Columbia permit a losing candidate, a voter, a group of voters or other concerned parties to petition for a recount. (Arizona, Connecticut, Florida, Hawaii, Mississippi, South Carolina, and Tennessee do not.)
The laws governing recounts vary by state, and a handful of states do not have a recount process at all. In those states, a defeated candidate’s only remedy is to contest the result of the election in court. In the other states, a recount can be automatically triggered if results are within a certain margin, or it can be requested. Courts can also order recounts.
Deployment of the Military for Law Enforcement
The Constitution ensures that the military always operates under civilian control, and that the president shares power over any domestic military deployment with Congress.
There are a number of laws regulating the use of the United States Armed Forces domestically, including the Insurrection Act of 1807 and the Posse Comitatus Act of 1878. Former Defense Secretary Mark Esper stated that federal troops “should only be used as a matter of last resort and only in the most urgent and dire of situations.”
Read this memo from the National Task Force on Election Crises for an in-depth look at how, when, and who can deploy the military for domestic law enforcement.
What Nonprofits Can Do in a Contested Election
States define contested elections differently, but generally the term is used to describe a ballot count dispute. The process for resolving these disputes is often complicated and tends to result in litigation before state and federal courts.
It turns out there’s plenty for nonprofits to do. Because public charities are permitted to register voters and encourage and educate the public about voting, they are also allowed to advocate for the proper administration of post-Election Day processes. That can take many forms, as we’ll cover below, but as long as the group focuses its work on ensuring all legal votes are counted, and that the processes of the state and federal government follow the law, it’s probably in the clear. We say probably, because the IRS has not specifically addressed the issue.
Listen to this podcast episode from Bolder Advocacy, in which they conclude their three-part series on election advocacy by nonprofits with a focus on post-election advocacy.
In 1887, Congress passed the Electoral Count Act (ECA), laying out the framework and timeline for selecting the president, handling disputes, and transitioning power. The ECA, like many other aspects of our election system, is complicated and therefore may be used as a basis for disinformation efforts.
One of the most important things we can do in our communities is clearly explain the provisions of the ECA to calm communal anxieties about the possible outcomes. The National Taskforce on Election Crises recently outlined some of the components of the Act, as well as suggestions for upholding them:
There is a specific timeline for State governors, electors, and Congress to deliver and count electoral votes for a presidential election.
The president lacks the authority to cancel or postpone the general election, even during a national emergency. If the election hasn’t been resolved by 12pm on January 20th, an “acting president” from the line of succession — with the Speaker of the House first in line, followed by the president pro tempore of the Senate — will be named and sworn into office.
Considering the increase of mail-in ballots in recent years, it is highly likely that final results will not be tabulated on Election Night, and counting could take up to several weeks.
A state legislature cannot substitute its preferred slate of electors over the results of the popular vote.
The Taskforce has provided an in-depth analysis of the ECA here.
The critical point in this fact sheet from the National Task Force on Election Crises is that, unlike the primaries, which are governed by state law and take place on different dates across the country, federal law—which only Congress can change—sets the first Tuesday after the first Monday in November as the date of the general election.
A president has no authority to change this date. The Constitution also significantly limits the ability of Congress to delay choosing the next president, even if it wants to—as under no circumstance can any president’s term be extended past noon on January 20th without amending the Constitution.
This resource, created by the National Task Force on Election Crises, is full of valuable information and is somewhat dense. It notes that those who have a public voice should avoid characterizing the election in a way that undermines public confidence in the outcome. You can help to manage expectations before, during, and after the election about the time it may take to count votes, and help your community understand that extended counting is not a reason to distrust the process.
Voter Intimidation Laws by State
Georgetown Law has created fact sheets for all 50 states explaining the laws barring voter intimidation and what to do if groups of armed individuals are near a polling place or voter registration drive.
Review and share your state-specific worksheet and pick out items that are particularly pertinent to your community.