rick hasen

California’s slow vote counting process — still underway and causing friction after last week’s primary — may be forced to change before November’s midterm elections, as the U.S. Supreme Court prepares to rule on whether mail ballots must be received by election day to count.

Whether those changes will speed things up — and help tamp down baseless claims from President Trump and others that the slow count is evidence of fraud — will depend on a variety of factors, election experts said, including how the high court rules, how state lawmakers and local elections officials respond, and whether they push any additional steps to quicken the count.

“We’re all on the edge of our seats, waiting to see what the Supreme Court does,” said Kim Alexander, president of the California Voter Foundation.

“We’re certainly planning for a bad Supreme Court decision in this case, but we don’t really know all of our options for how to respond until we see the court’s decision,” said Assemblymember Gail Pellerin (D-Santa Cruz), chair of the Assembly Elections Committee and a former top elections official in Santa Cruz County.

Pellerin said she has been working on contingency plans with other state officials — including some from the offices of Gov. Gavin Newsom, Secretary of State Shirley Weber and Atty. Gen. Rob Bonta — and has requested $35 million in state funds to educate voters on any new midterm deadlines, though that funding has not been appropriated.

Federal law has, since 1872, set “election day” as the first Tuesday following a Monday in November, and gives Congress oversight over elections for the president and members of Congress. However, most authority for running elections falls to the states.

California currently provides a grace period for ballots to be counted as long as they are postmarked by and received within seven days of election day. More than a dozen states have similar laws that allow for counting late-arriving ballots, and most states accept such mail ballots from members of the military who are stationed overseas.

In March, the nation’s high court heard arguments about a five-day grace period in Mississippi, with the court’s conservative majority appearing skeptical. Many observers expect from those arguments that the high court will rule, by the end of this month, that ballots — at least for federal races — must be received by election day to count.

That outcome — in the case Watson vs. Republican National Committee — is considered likely but not assured, and some elections experts believe the high court has little legal precedent to support such a conclusion.

“That is a bogus interpretation of the statute,” said Rick Hasen, an election law expert and director of the Safeguarding Democracy Project at UCLA Law. “It violates what the statute says as a matter of text and history, and just how it’s been understood since the Civil War basically.”

Hasen and others also doubt that such a change would have much impact on the speed of California’s vote counting process, given that huge volumes of mail ballots that are placed in ballot drop boxes or arrive at processing facilities on or just before election day would still count — and would still drag the counting process out for days after the election.

In 2024, California counted more than 406,000 late-arriving mail ballots, but they represented only about 2.5% of the statewide total.

“The main bottleneck is really not ballots that arrive after election day. The bottleneck is ballots arriving before or on election day,” Hasen said. “So I don’t think the Watson case — however it comes out — is going to appreciably change California’s timing on when they’ll get enough ballots counted in a close race for it to be able to be called by news organizations.”

Nonetheless, state and local elections officials are preparing for changes — and looking for other ways to speed up the vote count, which, as of Monday, had resulted in more than 7.7 million ballots counted from last week’s primary, but more than 1.7 million left to process.

State plans unclear

If the Supreme Court were to rule that votes cast in federal elections must be received by election day, California would need to respond quickly.

It would need to craft a messaging campaign to inform millions of voters of the new rules, and determine when to tell voters they must mail their ballots by in order for their votes to count, experts said. That calculation may be shaped in part by efforts by the Trump administration to assert federal control over the mail ballot process through the U.S. Postal Service, which California and other states are fighting in court.

California officials may also need to determine whether they will create a “bifurcated counting process” with different rules for primary and general elections and different rules for federal races and state and local races on the same ballots, Alexander said, as a narrow Supreme Court ruling may not apply to them all equally.

“That’s a big policy decision that lawmakers will need to make, and I’m not sure how that would go,” Alexander said, citing a lack of detailed public plans from state and local elections officials.

Weber — who urged voters to cast ballots early in last week’s election — did not respond to a request for comment.

Brandon Richards, a spokesperson for Newsom, said the governor’s office doesn’t comment on “hypotheticals,” but that Newsom “is planning for all eventualities, including but not limited to attacks on our democracy and disruptions in our elections.”

Bonta’s office said it is “in communication with election officials and actively preparing for the possibility that the U.S. Supreme Court could require changes to California’s election procedures,” but that it could not provide details.

Dean Logan, head of the L.A. County Registrar-Recorder/County Clerk’s office, said he was “not in a position to discuss specific contingency planning details” given the high court has yet to rule, but that his office “is closely monitoring the case and has begun evaluating potential impacts to election administration.”

If changes are required by the court, Logan said his office “is prepared to undertake a comprehensive voter education and outreach effort to ensure voters understand any new requirements, deadlines, or voting options,” which would be “multilingual, multi-channel, and designed to reach voters directly across Los Angeles County, particularly in communities that rely heavily on voting by mail and those that have historically done so.”

Funds needed for faster count

Alexander’s group has backed Pellerin’s request for $35 million for a marketing campaign to encourage voters to send midterm ballots in early, and advocated for another $55 million in state funding to support county efforts to build up their vote processing capabilities.

H.D. Palmer, a spokesperson for the California Department of Finance, said it would be “premature” to comment on those requests, but “discussions have been underway and are continuing.”

Both Alexander and Hasen said California should be investing more in its ballot processing capabilities even if the current process is fair and secure and the claims of fraud are baseless, because those claims have succeeded in diminishing trust.

“On the one hand, this is a manufactured crisis. There is nothing that is intrinsically bad about a slow count for a race,” Hasen said. “On the other hand, we live in an era of profound distrust in institutions and in the integrity of elections, in no small part because of Donald Trump.”

In 2012, slightly over half of all California votes were cast via mail ballots. However, that number has increased dramatically since, thanks in part to an expansion during the COVID-19 pandemic, and nearly 89% of ballots were cast by mail in last year’s special election.

Alexander said that throughout that same period, California lawmakers have passed new laws to expand access to the ballot but have not provided counties with the necessary funding to keep up with the volume — meaning “counties are left holding the bag.”

Alexander said California should fix that by providing consistent state funding for new ballot counting machines, more modern and efficient county processing facilities, and an expansion of a program backed by Pellerin and available in some counties already that allows voters dropping off ballot envelopes in person to essentially convert those ballots into in-person votes on the spot — which Alexander called a “hybrid” option that saves counties a huge amount of processing time.

She said the state spent millions to educate voters on new COVID-related vote-by-mail protocols and deadlines in 2020, and it led to both record turnout and a faster count — proving access and speed are not mutually exclusive.

“We’re being asked to make a false choice,” Alexander said. “It is possible to have accessible, secure, reliable and verified elections, and also an accelerated vote count.”

Times staff writer David G. Savage in Washington contributed to this report.

Sometimes it seems as though the only thing that stands between a functioning democracy and a full-on Trump autocracy is a thin, black-robed line.

Although the Supreme Court, in general, and conservative appellate courts, in particular, have bowed and granted President Trump permission to do pretty much anything he wants, they haven’t thoroughly capitulated to his endless grasping for ever more power. (The way invertebrate congressional Republicans have.)

At the lower-court level, judges have repeatedly ruled in ways intended to check Trump, most notably when it comes to violating civil and constitutional rights in pursuit of his indiscriminate immigration dragnet.

The tendency to slow-walk his administration’s response to those rulings — and ignore others that Trump thinks he can safely snub — only contribute to the perception of presidential lawlessness and a sense that our judicial system is being strained to something approaching a breaking point.

Go ahead, if you’d like, and dismiss those concerns as just so much overwrought hand-wringing, or the mindless anti-Trump blathering of your friendly political columnist. A new survey of legal experts — including federal judges, top-tier lawyers and scores of professors from some of the country’s leading law schools — finds widespread concern about the brittle state of our legal system.

And it’s not just the fears of a lot of shaggy-thinking liberals.

“The nation is strong as is its commitment to the rule of law,” said one appellate judge, a Republican appointee. “The current president presents the greatest threat in decades.”

The survey was conducted by Bright Line Watch, a nonpartisan academic group that monitors the health and resilience of American democracy, in conjunction with the Safeguarding Democracy Project at UCLA’s School of Law.

Conducted between mid-February and early March, the poll anonymously surveyed 21 federal judges, 113 lawyers, 193 law professors, 652 political scientists and a nationally representative sample of 2,750 Americans.

What leapt out to UCLA’s Rick Hasen, director of the Safeguarding Democracy Project, was that “across the ideological spectrum and across judges, lawyers and law professors, there was considerable agreement that the rule of law in the U.S. is under tremendous stress.” That consensus, he said, suggests “a real risk to democracy.”

Most legal experts agreed that Trump is using executive power excessively, with a majority doubting the conservative-leaning Supreme Court would handle cases involving the Trump administration impartially. The experts also expressed concern about politicized law enforcement — Trump seeking to persecute his perceived enemies — executive branch overreach, and the failure of Congress or the Supreme Court to do more to rein in the rogue president.

Eight in 10 of those surveyed said federal officials fail to comply with court orders somewhat or very often, and nearly 9 in 10 said political appointees in Trump’s Justice Department mislead federal judges somewhat or very often.

Talk about contempt of court — not to mention our vital system of checks and balances.

There was, unsurprisingly, a split among conservatives and liberals who took part in the survey. (The study defined legal conservatives as those saying the Supreme Court should base rulings on its understanding of what the Constitution meant as originally written. Liberals, who made up most of the respondents, were defined as those saying the court should base its rulings on what the Constitution means in current times.)

Conservatives, for instance, were more likely than liberals to see former President Biden as a greater threat to the rule of law than Trump. Liberals were more likely than conservatives to see evidence of Trump politicizing the Justice Department.

There were also differences between legal experts — those most intimately involved in the judicial system — and the public at large. The experts were more concerned about Trump’s excesses and threats to the rule of law, which, Hasen said, stands to reason.

The legal system is not something most people encounter daily in the same way they do, say, gasoline prices or the cost of groceries. “Yet,” Hasen said, “it’s one of these background things that really matters.”

Why?

Hasen put it this way: “Imagine that a person had a dispute with their neighbor and it ended up in small claims court before a judge and the judge made the decision not based on the merits of the case but based on whether he was friends with one of the parties, or didn’t like people who were similar to one of the parties.”

Now imagine that kind of corrupted, perverted system of justice writ large.

If, for instance, “people know that the government can successfully seek retribution from people who criticize it, people will be less likely to criticize the government,” Hasen said, leaving the country worse off by muzzling those who would hold their elected leaders to account.

Or if, say, rioters overran the U.S. Capitol and tried to steal an election and, instead of being punished, received cash payouts from the federal government, what incentive would there be to follow the law?

Happily — and who couldn’t use a bit of good cheer right about now — all is not lost.

People “can demand that their elected representatives take steps to assure that the rule of law will be followed,” Hasen said, and can insist “that the government [not] play favorites or seek retribution against perceived enemies.”

That’s the power people have, come election time. That’s why voting matters.

There are lots of things riding on the outcome in November, not least the sanctity and integrity of our legal system.

Bear that in mind when you cast your ballot.