Analyzing Chaos: Duke Scholars Dissect Election Night

With the presidential election and other significant national and statewide races still up in the air Wednesday, three Duke scholars spoke with journalists in a virtual media briefing to analyze where the country might be headed.

Watch the briefing on YouTube.

Here are excerpts:

ON ELECTION DAY CHAOS THAT DIDN’T HAPPEN

Judith Kelley, dean, Sanford School of Public Policy

“What’s really notable here is, so far, is what didn’t happen. What didn’t happen was lots of unrest and contestation in polling spaces. People showed up in droves, people stood in lines, people voted. It was peaceful. What’s playing out right now is perfectly normal in a mature democracy. We have to take time to count all the ballots.”

 

AND YET, THIS ELECTION CYCLE WAS NOT NORMAL

Judith Kelley

“What really struck me is how the playbook leading up to this election has looked so familiar. We’ve seen so many behaviors that we don’t consider playing by the rules of a mature democracy.”

“I think that no matter who wins, the loser is clear: It is American democracy that has lost in this electoral period. Shared values and norms. I really think Humpty Dumpty has fallen off the wall.”

“If you just look at elections and how mature democracies are expected to conduct themselves around elections, we’ve had a number of things that are unusual for a mature democracy.”

“Undermining confidence in the election by claiming it will be rigged before the election, the polling has even started.”

“Hinting at the need to delay an election. Suggesting one might stay in office beyond the constitutionally allowed period. Sowing misinformation. Claiming victory prematurely. Attacking the free media.”

“The United States has been one of the oldest established democracies in the world. That also means that we made the rules a long time ago. A lot of modern democracies have leap-frogged over us. They have rules and procedures in place … and systems that are better for ensuring the electoral process represents the will of the voters.”

 

ON PRESIDENT TRUMP’S THREAT TO APPEAL TO THE U.S. SUPREME COURT

Guy-Uriel Charles, law professor

“That’s not how it works. You don’t just go to the Supreme Court if you have an issue. You have to have a legal basis for it. He would have to file a lawsuit in one of the lower courts, either in the state court or in the federal court. He might then lose and then appeal, and he can then appeal that to the Supreme Court. He might ask for an emergency ruling. But you first have to start at the lower courts and file the lawsuit. And there has to be a legal basis for the lawsuit.”

“He certainly can’t just run to the U.S. Supreme Court and file a suit there. That’s just not how our legal system operates.”

 

HOW A LEGAL CHALLENGE MIGHT HAPPEN

Guy-Uriel Charles

“I don’t think they can stop the votes from being counted. Once there’s a sense of outcomes in various states the Trump campaign will have to determine how close is the outcome in particular states and which states would make the difference.”

“Every state provides a mechanism for challenging the results of the election. If there’s a problem with the vote counting, if there’s a problem with the tabulation … every state has rules about how you go about doing it. There’s a timing as to how it should be done. You have to go state by state and look at the rules of that state.”

“If they believe there’s been a violation of federal law, they can go straight into federal court.”

“The political circumstances are what’s going to determine what the legal strategy looks like.”

“It will be surprising if we actually don’t see a two-tiered approach. It is unlikely it will just start in state court. More than likely, if they think that they have a legal basis and that it will help them … they will likely follow a dual-track system. Both the state process as well as filing in federal court.”

“But again you can’t just walk into federal court and say, ‘I lost.’ You have to have a legal basis for saying a law has been violated.”

“Every state will have different sets of rules for when a candidate or a person … can file a protest. You have to look at the particular rules of the state.”

“There’s a strategic advantage that campaigns are going to see to make sure they file whatever they want to file before the count is certified as official. Once it has been certified it’s actually really difficult to counter the official certification.”

 

ON NORTH CAROLINIANS WHO VOTED FOR TRUMP, COOPER

Pope “Mac” McCorkle

“All politics is national, especially in North Carolina. When you look at the vote from the president on down to the state judicial races, the tightness, the closeness of the Republican/Democratic split is just simply extraordinary.”

“Gov. Cooper, who had distinguished himself on kind of non-ideological grounds on handling the COVID crisis, was one candidate able to differentiate himself enough from that 1 to 2 points where Democrats were losing in almost every race.”

“Voters are not voting in the individual races anymore. Very few are. Most voters are voting straight ticket loyalty, not so much because they’re pro-Republican or pro-Democrat, but the Republicans are anti-Democrats and the Democrats are anti-Republicans. It’s all ideological and it’s all national.”

 

ON HOW HUGE VOTER TURNOUT IN NC HELPED REPUBLICANS

Pope “Mac” McCorkle

“The assumption that high turnout is always good for Democrats in North Carolina … really doesn’t have much support. The only time, besides the unusual now, what seems the unusual election of 2008 when President Obama won here and Sen. Hagan won against Elizabeth Dole; Democrats have not won a U.S. Senate seat in a presidential election year. They have actually won it in the midterm years. The North Carolina victories actually came in smaller turnout elections in midterms.”

“And at the presidential level, you’d go all the way back to 1976, after 2008, to find a time when another Democratic presidential candidate won here.”

“Biden did better than Hillary Clinton, added on more votes to the Democratic column than Trump added to the Republican column. He closed the margin from almost a 4 percentage point loss for Clinton to what looks to be about a 1.5 percentage loss.”

“Biden did better off the 2016 baseline. But the idea that high turnout is always good for Democrats in North Carolina actually doesn’t have that much grounding.”

 

ON IMPORTANCE OF TRADITIONAL NORMS FOR A DEMOCRACY

Judith Kelley

“At some point I don’t think one can just legislate and regulate everything so that there’s no dependency on norms and values. Democracy rests on a social contract between citizens. That social contract has to do with a level of trust and understanding. These are the kinds of things that manifest themselves in making concession speeches when they’re warranted. You can’t legislate these things. These are norms.”

“We are headed towards a situation, potentially, where for the third time in six elections, the winner of the presidency might be winning through the electoral college rather than through the popular vote. That is very bizarre for a mature democracy.”

“So many of our electoral systems are headed by partisan officials. Most mature democracies have independent electoral oversight bodies.”

“At the end of the day, it has to be about a conversation among citizens about what values we actually hold dear in the long run that we want to hold onto in the long run.”

 

ON POTENTIAL CHALLENGES TO ABSENTEE BALLOTS

Guy-Uriel Charles

“The likeliest challenge will be to absentee ballots. It’s just part of the process. In a state like North Carolina or in Pennsylvania where courts change the rules, the state law, in order for a COVID accommodation … I think there’s a potential of challenging (absentee ballots.) There’s a constitutional argument that some members of the Supreme Court will accept. Close to a majority of the court would likely accept if the case gets before them that courts can’t change electoral rules as written by the state legislature.”

“If the election does come down to, say, North Carolina and Pennsylvania … it is possible to challenge … the ruling and the absentee ballots that come in after Election Day.”

 

ON THE INFLUENCE OF OUTSIDE MONEY IN THE TILLIS/CUNNINGHAM RACE

Pope “Mac” McCorkle

“North Carolina has had a history of this. For many years there have been so many close contests. I’m not sure the money mattered much except to cancel out the other side. (With television commercials) you don’t want the other side to be able to hit and you have nothing to counter with.”

 

ON NEED FOR PATIENCE RIGHT NOW

Judith Kelley

“The post-election period like this can be a very volatile period. But I was very encouraged by the peacefulness of yesterday. Much will depend on the rhetoric that the candidates themselves and their party officials choose to engage in over the next couple of days. They hold it in their hands to give signals to their voters. I would urge everyone to signal we should all stand by and let this election play out.”

 

ON THE EFFECT OF VARIOUS MINORITY VOTING BLOCS IN NC

Pope “Mac” McCorkle

“The thing Democrats need to be aware of is that the Latinx or Hispanic vote in North Carolina leans to the Democrats … but is not anywhere near like the African-American vote in North Carolina. It’s the base. It’s the biggest population grouping in the Democratic party. Based on other states you’re going to see a lot of interest, especially if it’s post-Trump, in trying to peel off even more of the Hispanic or Latinx vote to the Republicans.”

“The Lumbee Indian vote in Robeson County ... is one that swings back and forth and has been a national bellwether the last three elections. It went for Obama twice but now it went big for Trump. Trump was able to win a very mixed-race county in Robeson.”

 

ON WHETHER POLLING IS BROKEN

Pope “Mac” McCorkle

“Polling is in crisis. It’s almost like you think of polling as being out of the era when you have three networks and everyone was at home and you could call them on a landline.”

“It’s getting to be more and more of a challenge. It’s harder to find a sample that can be trustworthy.”

“I agree Trump is a disruptor to this kind of system. Trump is a different figure, always kind of pushing the envelope of expectations.”

“But polling is a necessarily open system. It’s not something where systematically the pollster should know what the turnout is gonna be. That has to be based on historical assumptions. This time, this was unprecedented turnout they tried to account for.”

 

ON HIGH TURNOUT FOR THIS ELECTION

Judith Kelley

“It has to be a win overall that more people have turned out than have for decades in America. America has for a long time been trailing other mature democracies. If anything, this election might lead to a continuing trend of that.”

“It is becoming increasingly clear to people that their vote matters.”

“This country is so, so evenly divided, in some ways so closely divided … it’s really 50/50. When that’s the case, turnout becomes so much more important. I think people have felt that this time around.”

 

ON WHETHER SHIFTING DEMOGRAPHICS SHOW UP IN ELECTIONS

Guy-Uriel Charles

“Georgia is a great example. Part of the reason Georgia was competitive is because of the large population of African-American voters … concentrated in different urban parts of the state. You add to that voters of color, Latino voters and college-educated whites and there’s a coalition … what people used to call the Rainbow Coalition. And to some extent we saw evidence of that.”

“On the other hand, we also saw the fact that, notwithstanding some coalition with particular racial and ethnic groups, they don’t consider themselves monoliths. To talk about ‘Latino’ voters I think begins to betray a type of cultural and identity ignorance.”

“The idea that there’s going to be this rainbow coalition composed of growing folks of color with urban whites and that is going to create this wave, this demographic wave, and that’s the destiny of the future, I think this election has put the brakes on that upward trajectory.”

 

Meet the experts

Guy-Uriel Charles
Guy-Uriel Charles is a professor of law at Duke Law School. He is the co-director of the Duke Law Center on Law, Race and Politics, and teaches and writes about constitutional law, election law, campaign finance, redistricting, politics and race.

Judith Kelley
Judith Kelley is dean of the Sanford School of Public Policy at Duke, where she is also a senior fellow with the Kenan Institute for Ethics. Her areas of research include human rights, democracy and international election observation.

Pope “Mac” McCorkle
Mac McCorkle is a professor of the practice at the Sanford School of Public Policy at Duke and director of the Polis: Center for Politics. McCorkle was an issues consultant to Democratic political candidates, state governments and others for more than 25 years.

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A list of Duke experts on the election is available here.