The Markup: What’s real and what’s noise ahead of Election Day?

With Election Day tomorrow, it can be hard to tell which election stories matter most. In this special edition of The Markup, we’re breaking through the noise by spotlighting states and counties in our Election Risk Heat Map. 

The big picture: There was a lot of noise over the weekend, but our eyes are glued to a competitive race in Alaska, where the Justice Department sued to block certification if the incumbent loses. Questioning certification before a single ballot has been counted clearly threatens free and fair elections — and sets a dangerous precedent. While a federal judge dismissed the lawsuit yesterday, Gov. Mike Dunleavy has ordered a state investigation into the race and has declined to commit to certifying the results.  

Here are other threats we’re watching this week: 

  • Administration ramping up election interference. In one week, the Justice Department charged 48 noncitizens with election crimes, told Washington to set aside ballots from more than 400 voters, and pressed its case against more than 20,0000 alleged noncitizens in California. At the same time, the president offered a $1 million reward for any fraud tips that lead to a conviction. And mirroring the DOJ’s request in Alaska, a Texas county Republican group is seeking to stop the certification of the state’s election results unless every ballot is counted by hand.
  • Delays and challenges in Georgia. Nearly 7,000 Fulton County voters face challenges around residency requirements, many caused by a records error that listed a new apartment complex as a gas station. Meanwhile, delays tied to a shared print vendor left nearly 10,000 voters in Cobb, DeKalb, and Gwinnett counties waiting on mail ballots. Voters without a ballot can still vote in person. 
  • Ballots at risk in North Carolina. Under a new rule on unsealed inner envelopes, nearly 6% of mail ballots have been flagged statewide, and as many as 30% in some rural areas. 
  • Routine hiccups get heightened attention. Printing errors, questions about voting machines, and federal election monitors are drawing outsized attention and fueling disinformation. 

See this week’s complete election law and policy update below. 

Statewide ballot measures across 18 states set to reshape voter ID rules and election administration.

California and Nevada will decide on ballot measures that would establish strict voter ID mandates where none currently exist. Arizona and Colorado will consider initiatives that would impose new document or identifying-number requirements on mail ballots. By contrast, Virginia is weighing automatic voting rights for people who have completed felony sentences, and Massachusetts may establish Election Day voter registration. Alaska is voting on whether to repeal its ranked-choice voting system. Five states are also putting before voters measures that reiterate existing bans on noncitizen voting. Read the complete breakdown in The Markup’s ballot measure guide. 

Alaska governor threatens to withhold Senate-race certification as DOJ escalates investigation and judge dismisses lawsuit.

Outgoing Gov. Mike Dunleavy indicated he may refuse to sign the certificate of election if Democrat Mary Peltola wins, even though certification is a mandatory ministerial duty. A new governor will be inaugurated on December 7.

Meanwhile, federal prosecutors in Alaska launched a criminal inquiry into circumstances surrounding the candidacy of Daniel J. Sullivan Jr., who is running against incumbent Republican Sen. Daniel S. Sullivan. A federal district judge dismissed a lawsuit brought by the Trump administration seeking to prevent certification of election results while the investigation plays out. The Alaska Supreme Court resolved challenges to the non-incumbent Sullivan’s candidacy months ago. 

Federal judge blocks DOJ from threatening election workers as separate court orders disclosure of voter roll demands.

A U.S. district judge issued an emergency temporary restraining order in California prohibiting the Department of Justice (DOJ) and the Department of Homeland Security from threatening local election workers with criminal prosecution for processing ballots cast by alleged noncitizens. Prompted by a challenge from labor and civil rights organizations after federal prosecutors delivered warning letters and issued grand jury subpoenas to local officials, the order requires the administration to notify targeted jurisdictions that its demands are enjoined and disclose any pending election-related search warrants. A preliminary injunction hearing is scheduled for November 13.

In Washington, D.C., a federal district judge ordered the administration to identify every state that received federal letters demanding voter roll removals or ballot segregation. The judge expects to issue a ruling before Election Day on Democratic Party groups’ request to block the administration’s efforts to interfere with state election administration.

Federal appeals court rejects DOJ request to set aside California mail ballots as investigation expands.

The Ninth Circuit Court of Appeals again denied the DOJ’s request for an injunction, and the DOJ appealed to the U.S. Supreme Court. This comes after a federal district court’s rejection of its emergency request to stop California from counting thousands of mail ballots. Federal authorities identified over 20,000 names they claim to be noncitizens who may be registered to vote. Initial investigations have indicated the list is highly flawed.

Meanwhile, the DOJ has expanded its investigation, issuing federal grand jury subpoenas to Los Angeles County election officials seeking internal communications and records concerning efforts to identify and prevent noncitizen voting.

Washington state rejects DOJ demand to segregate mail ballots of alleged noncitizens.

Washington Secretary of State Steve Hobbs declined a U.S. Department of Justice (DOJ) request to set aside and not count the mail ballots of 405 alleged noncitizens until their voting eligibility is verified. Hobbs claimed a preliminary review of the voter data provided by federal authorities found no evidence of ineligibility and included citizens, inactive and unregistered voters, and duplicate entries. A group of civic organizations filed a lawsuit seeking to block the DOJ’s efforts. Washington automatically mails ballots to all registered voters.

The Potter County Republican Party sued to block certification of statewide election results unless every ballot is hand-counted, an operational requirement election officials note is infeasible under state law. Separately, the Texas Attorney General’s Office filed a lawsuit against Harris County election staff, alleging demographic targeting in county “Get Out the Vote” advertisements was discriminatory. Attorney General Ken Paxton recused himself from the matter because he was running for office.

Meanwhile, the Public Interest Legal Foundation submitted an administrative complaint under the Help America Vote Act with the secretary of state, alleging 3,500 defective or duplicate registrations across 22 South Texas counties. Together, the 11th-hour filings target local administrative procedures while establishing procedural pretexts to contest tallies after Election Day. 

Georgia counties face issues with delayed mailings and residency challenges.

An out-of-state vendor delayed mailing ballots, threatening to leave voters across Cobb, DeKalb, and Gwinnett counties without their mail-in ballots in time to vote. In response, a Cobb County lawsuit asks the court to order election officials to send mail ballots and return envelopes to all affected voters via overnight mail.

Meanwhile, an administrative review in Fulton County triggered residency challenges against thousands of voters, who must now confirm their residential address before casting a ballot. 

Utah County voters receive inaccurate voting instructions.

Due to an administrative error, thousands of Utah County voters received information suggesting they were among many first-time voters who must include a copy of their ID with their mail ballots. Many of the voters who received these instructions had already shown ID during registration or were not first-time voters. 

Michigan court orders election officials to preserve electronic poll books after November election.

A Michigan state court issued a temporary restraining order requiring local election officials statewide to preserve electronic poll books from the November 3 election until further court order. Under existing state rules, officials must generally delete electronic poll book files within seven days after final canvassing and certification, unless a recount or audit is pending. The order stems from a lawsuit challenging whether that requirement conflicts with federal law. Federal law requires election records to be kept for 22 months. Litigation is ongoing.

States and counties push back as DOJ continues to roll out Election Day monitor plans.

The Department of Justice (DOJ) notified election officials across several states — including Iowa, New Hampshire, North Carolina, and South Carolina — of plans to observe local polling places on Tuesday. While deploying federal personnel to monitor compliance with civil rights laws is a routine, longstanding practice, the expanded presence of federal authorities has prompted formal administrative resistance from state and local leaders.

In Arkansas, the Pulaski County Election Commission voted to explicitly bar federal monitors from entering its polling sites. Similarly, in Wyoming, the state attorney general issued a formal opinion prohibiting monitors from entering polling places without a court order. The DOJ agreed to comply with state buffer-zone laws and remain at least 100 yards outside Cheyenne voting locations.