Late-Week Mop-Up With Chris Gober: ‘It’s Just Completely Jacked’

Just 36 hours into October, I’m already exhausted. 

Chris Gober is an election lawyer based in Texas. We met when I worked EDO (Election Day operations) for Mitt Romney’s 2008 primary race. Then I went to work for Chris when he was the general counsel for the National Republican Senatorial Committee the day I finished law school classes. (I flew back for graduation a few weeks later and studied for the bar at my desk that summer—please don’t ask me anything about oil and gas law.) He’s worked on dozens of Senate, House, and gubernatorial races. But perhaps the most fun fact about Chris is that he currently represents more Republican U.S. senators than any other attorney or firm in the United States. 

Lots to talk about with Chris given the news. So let’s dive in!

Sarah: Chris, we’re going to talk Election Day operations but let’s start with what’s happening with Google searches across the country right now. What happens this late in an election cycle when a presidential candidate’s name is on the ballot but can no longer be elected president?

Chris: Well, we may be jumping ahead, but we know there’s a lot of curious people given the news that the president has tested positive for COVID-19. The answer is that there are so many unknowns that, frankly, if anybody suggests to you that they know exactly how this plays out, they probably don’t know what they’re talking about because there’s all kinds of complexities— both at the constitutional level and also state rules on it.

Sarah: In that case, what do we know?

Chris: So what we do know is that the national party committees have the ability to replace their nominee if their nominee dies after they’ve been nominated. (It’s Rule 9 if you want to read it here.) So, let’s just take an example. If President Trump were to die at this point, the RNC would have the ability to come in and replace their nominee. But the complexity really comes in by the fact that ballots are already printed. Some states are already voting. Some states actually prohibit you from replacing anybody’s name on the ballot at this point. So there becomes this question: The Republican party could effectively have a new nominee—a replacement for Trump—with Trump still on the ballot and with people voting for him, and so that obviously unleashes a whole other set of questions of what happens with the outcome of that voting.

Sarah: And does it matter whether it’s death or incapacitation?

Chris: It doesn’t have to be death but also think about what happens when a candidate withdraws from the race and whether they can be replaced on the ballot. That is going to be a state-by-state issue in many ways. 

Sarah: And does the candidate have to withdraw himself? How does that principle interact with the 25th Amendment if the vice president and a majority of the principal officers say that the president is incapacitated?

Chris: In that instance the 25th Amendment would only apply to his holding the current office of the president and have no impact on his actual candidacy in the 2020 election. 

Sarah: Sure, but is there a mechanism by which the RNC could vote to replace an incapacitated president on the ballot?

Chris: Good question. But I think when you get into a lot of the state laws, a lot of states would not give the RNC that ability to replace that candidate unless that candidate actually died. Or became ineligible to hold the office. I’m not so sure that incapacitation—whether it’s under the 25th Amendment or not—would qualify as an ineligibility to hold that office.

Sarah: And then who takes the oath of office on January 20?

Chris: Exactly, let’s say that President Trump is incapacitated and then wins in November. That does not mean that the president has assumed office and that Vice President Pence could then take over the presidency in January 2021. Rather, in the intervening time, I think it would still be the RNC that would appoint the replacement for President Trump in that position, which could or could not be Vice President Pence. So you can effectively have Pence close out the term and the Republican Party could effectively have a completely new president that is not Trump or Pence starting January 20, 2021. 

(This gets legally even messier under the 12th Amendment if a deceased Trump were to receive the most votes. The amendment says that “the person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.” But, of course, Trump would no longer be a “person.” So then it says that “if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President” by state delegation. 

So then the question would be whether enough of the electors could vote for the RNC’s new candidate under each of their state’s law given the Supreme Court’s opinion from this last term upholding state penalties against so-called faithless electors. But if it did go to the state delegations in the House, Republicans currently have the majority in 26, Democrats 23, with one tie. But is it the current House delegations or the new House sworn in January 3rd 2021? The 12th Amendment says it goes to the House “whenever the right of choice shall devolve upon them” before inauguration day–so it depends on when and how it all plays out with the Electoral College. Needless to say, all of this would end up in court…several times over.)

Sarah: Well, that could be dramatic.

Chris: To say the least. And to make matters even more complex, ultimately, in a dispute—which all of this would be—Congress may ultimately determine who becomes president. Nancy Pelosi will most likely be speaker of the House and that would just add more drama to the chaos. 

Sarah: Normally, I would say that this is an insane conversation. But #2020.

Chris: No doubt.

Sarah: Let’s move to something far more concrete: Election Day operations. What do smart campaigns do at this stage in a normal presidential election for Election Day operations, and what are they doing this time around because of the increase in mail-in ballots and all these last minute rule changes?

Chris: I don’t necessarily think that Election Day operations and post-Election Day operations have really changed that much. I think what has happened is that there’s a lot more attention focused on it right now so that our campaigns and political parties are just being better prepared for it.

Sarah: Something that has annoyed me are these breathless headlines about the enormous legal teams being assembled in case of an election contest. But that happens every cycle—Romney, Obama. It would be malpractice if they didn’t have teams for every potential state. But this time around, reporters are noticing far more.

Chris: It would. And you’ve got to really understand what Election Day operations are all about.

Sarah: Tell us!

Chris: Okay, so A lot of people just assume it’s about ballot integrity on Election Day. And yes, of course, when we set up Election Day operations, we want to ensure there’s no illegal activity or voter fraud occurring. We want to make sure voters aren’t being bribed. They’re not being coerced. Making sure that only registered voters are allowed to vote. Make sure nobody’s stuffing the ballot boxes. You know, that’s the really obvious stuff. 

But when we’re actually planning for Election Day operations there’s a couple more aspects of it. Number one, and a big piece to help people understand, is to ask: “What does an efficient voting process look like?” Because once the polls close, if it is a close election, we want to ensure we have set up the process so that any recount or election contests that occur after the fact are very clean processes. 

We want the recounts to be simply about recounting the votes. We don’t want the recounts to be about ballot boxes that have gone missing or voting machines that were not working properly.  Things like, “Wait a second, there’s more ballots that were cast than there were voters who actually signed in to the poll books when they checked in to vote.”

Those are types of just messy election administration issues that can cause a lot of pain on the back end. And so I like to view Election Day operations and training as a question of what can we train people to do on the front end to prevent all of that messiness from occurring on the back end.

There’s also another aspect to Election Day operations that’s really more “get out the vote” focused. So in some states—and not in others—campaigns can actually put people into the polling places. They can effectively check off the people that come in and cast a ballot to vote. And literally send back to their campaign teams on a real-time basis who is voting so they can check off their GOTV lists. And that helps drive those operations. If you’re making GOTV phone calls or sending out door-knockers, you may actually change your strategy of who you’re contacting on Election Day to get your people out to vote. And so that’s one aspect of Election Day operations that people don’t always think about. That it’s also about getting your targeted voters out to the polls.

Sarah: So what does it look like after polls close? Let’s say we have a tight race in one of these swing states. What do you—as the general counsel for the campaign—do as you see the numbers tightening there from a legal perspective?

Chris: After Election Day, you’re going to be counting mail-in ballots that were postmarked on or before Election Day but didn’t arrive until after the polls closed. You’re going to have provisional ballots that have to be counted. So these are the people that show up on Election Day to vote, but they’re not showing up on the voter rolls, or they have the wrong address, or, in states where there’s a voter ID requirement, they don’t have their voter ID. And those people are required to cast a provisional ballot that shouldn’t be counted through the machines on Election Day. 

But days after the election, all of those ballots have to be counted or we have to determine whether they should count, which is a very important part of the process. Especially in an election like this where we’re talking about so many mail-in ballots and so many of those that may be coming in late.

So I want my campaigns to understand that this is part of the process. In a tight race, this is as important as what’s going on during early voting and on Election Day because this is where the difference could be made. 

And then we want them to understand the canvassing process. The election administrators come back and confirm their counting. So on Election Day, they may submit to the secretary of state, “this is what the vote totals were.” But during the canvass, they reconfirm those numbers. And you would be shocked to know how many times during that canvassing process they discovered errors that were made when they first submitted their numbers. It is truly shocking.

The election judge calls in to the secretary of state’s office or puts it into the online submission system where they submit votes and they may say “okay, Candidate A received 81 votes.”  Well, what they may find during the canvass is that what got entered was 18 votes. They reversed the numbers. I just came off of a recount in a primary runoff election in a congressional district. After election night, they were separated by six votes. During the canvass process, we had a nice 60-vote swing because it was discovered that the election judge did all of the math on the back of a napkin and didn’t add up the numbers correctly the first time. 

Sarah: On the security front, what are the areas that make you nervous heading into Election Day this time around?

Chris: Yeah, so it’s a complex question because there’s so many different types of voting machines and equipment that are used. I mean, even within the state of Texas, for example, or even in the same congressional district, you may be looking at several different types of voting machines being used. We’re seeing more and more of the type where you cast your vote on an electronic machine and that machine then prints off a receipt for you and then you take that receipt and plug it into another machine that actually records the vote. And so when you submit the receipt ticket into that other machine, not only does it get recorded digitally to count the vote, but you end up having the hardcopy paper version of the ballot as well. So in the case of a recount or any kind of election contest, you actually have the paper recorded ballots to match up and compare to the electronic voting that occurred. 

We had this kind of machine on the recount I just did. And what I will say is that it was a dramatic improvement from an election security standpoint. I think it was very beneficial to have that redundancy in the electronic numbers with the backup paper ballots. I think that helps alleviate a lot of the concerns where there’s only electronic voting. You’re pressing on a digital screen and your vote gets cast and you never have a piece of paper or anything to show for it. I think people have concerns about whether those machines can be manipulated. 

But when it comes to trying to figure out what to do with those machines on actual Election Day or early voting, there’s very little we can do. We have to trust that the machines work properly. We have to make sure people are well-trained. But a lot of times, if there were some type of issue, we wouldn’t discover that until we enter a process of a recount or some kind dispute and we’re getting in the back end of the machine and comparing all the numbers to see what may or may not match up. 

But frankly, I am far less concerned when I go into these recounts about machine malfunctions or even fraud than I am with election administrator mistakes, which is typically where we see so many more of the problems.

Sarah: Two more questions. First, when do you go to court?

Chris: It depends on the particular race. Generally, there are two phases where you go to court. 

Number one: A lot of times you go to court on actual Election Day. It’s pretty typical if there’s long voting lines or if there’s some kind of issue with a voting machine. You’ll have one of the parties that goes to court to keep the polling places open longer. 

The other phase of litigation, and this is what most people would be focused on, is the battle in the recount, or following the recount. Let’s say we get through Election Day, we go through the canvass, it’s tight, we go through a recount, we come out of the recount, and it’s tight. That’s when you go to court in an election contest because the parties are going to be fighting over “well, certain ballots should be counted, certain other ballots shouldn’t be counted” or “there were certain administration errors that created problems and cast the validity of the election into doubt.” That’s when you go to court. 

A lot of times, you’ll get to court and there will have been issues that you’ve discovered along the way. Take this recount I’ve mentioned, we had a couple of precincts where there were actually more ballots cast than there were voters that signed in to the polling place to vote. So if your voter roll says that there were 80 voters, but then there were 85 ballots cast, what do you do there? Does the court just count the five extra votes? You don’t know which five votes were extra. You can’t kind of pull those out. But it just creates kind of an issue for the court to deal with. What do you do with that kind of uncertainty? And it’s very fact specific depending on the specific case.

Sarah: Okay, last question. How optimistic or pessimistic are you about Election Day this year? What is keeping you up at night?

Chris: My expectation is that, assuming the presidential race is very close, and especially the down-ballot races, we’re not going to know the results of the election on election night. And even the morning after the election. My expectation is that we are going to have so many mail-in ballots that still need to be counted, that that is just going to take time to finish that process to where the outcome of these elections really could be hanging in the balance while we continue to do that counting.

Sarah: Even with Florida? We know we’ll have their mail-in ballots counted ahead of time. And let’s say Florida goes for Biden by four points? 

Chris: But there’s still states out there that prohibit the early counting of ballots before Election Day.

Sarah: Right. We won’t know Pennsylvania.

Chris: Right. Depending on how those shake out, how close the elections are … I just think that they’re going to be some very big states and some critical ones for determining the outcome of the presidential election that just won’t have all of their mail-in ballots counted.

Sarah: Yeah, not to mention the Senate races and everything else.

Chris: We have very critical down-ballot races here in the states where it’s still the same votes coming in by mail, and still rules preventing them from counting them in advance, and I think there’s going to be a lot of races still in play. You know, come November 4, November 5, as we kind of move into the latter part of that week, I think there’s just going to be a lot of counting still going on.

Photograph by Samuel Corum/Getty Images.