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In the past, state officials and courts have ordered remedies for voting in emergency situations, including postponing elections.
A “revote” for a presidential election would be unprecedented.
In Wisconsin, ballot envelopes are scanned upon arrival, so officials would know which ballots were lost. Courts would have to rule on a remedy, such as a revote, ideally before the Electoral College meeting.
A presidential election hits a fiery snag in the latest episode of HBO’s "Succession," leading to morally dubious decision-making by the protagonist Roy family and raising questions about how damaged ballots in a critical state would be handled in real life.
Central to the story is an election-night crisis in Wisconsin. In the episode, 100,000 ballots were lost when a "vote-counting center" in Milwaukee caught on fire. In Milwaukee, all absentee ballots are tallied at a central location — called "central count" — rather than in individual polling places.
The destroyed ballots could swing the presidential race’s outcome.
What would happen if this fire in Milwaukee’s central count happened in real life? We looked at what the show got right, what it got wrong and what is uncharted territory.
This should be obvious, but: spoiler alert.
In the episode, after the fire in Wisconsin breaks out, the three Roy siblings — Kendall, Roman and Shiv — argue about how to call the Wisconsin race (and ultimately the election) on their right-wing cable news outlet ATN, with Darwin Perry from the decision desk weighing in. Roman pushes them to call the race for Republican Jeryd Mencken, but Shiv, who favors the Democrat, Daniel Jiménez, floats the possibility of a revote.
We tested the accuracy of what the characters said about counting absentee ballots, Milwaukee’s voting pattern and a potential revote for a presidential race.
Shiv Roy: "So, under state law, the vote can't be certified until the absentee ballots are counted. So, no Wisconsin result is valid until the absentee ballots are counted."
This is true, per Wisconsin Statutes that say:
"The canvass, whether conducted at the polling place or at a central counting location, shall continue without adjournment until the canvass of all ballots cast and received on or before election day is completed and the return statement is made or, in municipalities where absentee ballots are canvassed under s. 7.52, until the canvass of all absentee ballots cast and received on or before election day is completed and the return statement for those ballots is made."
Darwin Perry: "While we theoretically know everyone who requested an absentee ballot, we don't entirely know how many turned them in."
This is false. Wisconsin Election Commissioner Ann Jacobs debunked this claim on Twitter, saying that absentee ballots envelopes are scanned and logged in upon arrival.
"Because the ballots are logged in, we actually WOULD know whose ballots were burned up," she said.
Wisconsin voters can verify whether their completed ballot was received by tracking their ballot using the MyVote Wisconsin website. Absentee ballots are not counted until Election Day, and once election inspectors verify that an absentee ballot envelope meets all requirements, it will be opened and counted.
Manually updating the voter registration system with who voted in the election takes time. Once a vote has been recorded, voters can verify their voting activity on MyVote. It could take clerks weeks after a general election to record this information.
Shiv Roy: "Milwaukee overwhelmingly votes Democrat."
This is true, and it played a role in the 2020 presidential election. Donald Trump had enjoyed a lead of more than 100,000 votes in Wisconsin early in the night, but votes from Milwaukee shifted the win to Biden hours later. This was expected, especially because mail-in ballots tended to skew toward Democrats in Wisconsin.
Darwin Perry: "I would say a revote is incredibly rare and complex."
This is true. Revotes have been done before, such as a 2019 North Carolina congressional race and a 1998 Miami mayoral race, both because of fraudulent activities. But a revote hasn’t been done in a presidential election.
Courts have previously tackled the legality of a presidential redo. In 2000, voters in Palm Beach County filed a lawsuit in Florida asking for a redo election, claiming that the layout of the ballot in that county led to voter confusion and mistaken votes. A judge ruled it was legally impossible to do a revote in Florida because federal law sets a uniform Election Day, and Florida had no procedure to account for controversies over election results.
A similar case would go through the court system in Wisconsin and eventually find its way to the Wisconsin Supreme Court, said Jay Heck, executive director of Common Cause in Wisconsin. Republicans may also appeal to the U.S. Supreme Court.
"Unfortunately, I think politics would play a role in both state Supreme Court and in the U.S. Supreme Court," Heck said, "which is why this hypothetical scenario I hope never happens, because it would be awful."
If this happened during a presidential election, the courts would have to act quickly. A resolution would be needed before the Electoral College votes on the Tuesday after the second Wednesday in December, as federal law requires.
"If it is the case that the voted majority of ballots are impacted prior to being counted and it would potentially impact the outcome of the election, it is possible that a court would establish a new Election Day and an entirely new election," said Tammy Patrick, chief executive officer for programs at the Election Center, also known as the National Association of Election Officials.
Candidates who lost would likely challenge the election’s legitimacy by arguing that many of their voters did not have the opportunity to participate, Patrick said.
Darwin Perry: "There's nothing in Wisconsin law that really covers what to do."
Jacobs agreed with this on Twitter. Because there is no law for ballots lost in a fire, it would be up to the courts to decide what would happen.
Some states have laws that authorize suspending, delaying or postponing an election in an emergency. In most of these states, the governor, chief state election official or both can make that decision.
An article published by the Emory Law Journal goes in-depth about disasters that affected elections and how they were handled.
On 9/11, the polls for the New York Democratic and Republican primaries had only been open less than three hours before the first plane struck the World Trade Center. The New York City Board of Elections asked a New York Supreme Court justice to postpone the primaries, and the governor hours later issued an executive order canceling primaries statewide. The election was rescheduled to happen two weeks later.
In 2005, Hurricane Katrina displaced more than 1 million people. Louisiana law allowed the governor to suspend or delay elections when the secretary of state certified an emergency, so then-Gov. Kathleen Blanco postponed all elections in affected parishes for the rest of the year.
When Superstorm Sandy hit in 2012, barely a week before a presidential election, New Jersey and New York officials ordered changes to election rules to make voting more accessible for people who were displaced.
The solution would hinge on the emergency’s timing. A disaster that hits as the polls are closing would be the worst-case scenario.
"We just hope none of that ever happens," Patrick said. "Hope for wide margins, high turnout and no fires."
Milwaukee Election Commission, Voting by Absentee Ballot, accessed May 18, 2023
Twitter thread by Ann Jacobs, Wisconsin Election Commissioner, May 15, 2023
HBO’s Succession Podcast, "America Decides" with series creator Jesse Armstrong and political consultants Ben Ginsberg & Jon Klein, May 15, 2023
MyVote Wisconsin, How your vote gets counted, accessed May 18, 2023
Milwaukee Election Commission, Election Results Archive, accessed May 18, 2023
PolitiFact, No, Wisconsin did not take a break from counting election results, Nov. 5, 2020
Ballotpedia, Can a redo be held for a presidential election? (2020), accessed May 17, 2023
New York Times, New Election Ordered in North Carolina Race at Center of Fraud Inquiry, Feb. 21, 2019
New York Times, Fraud Ruling Invalidates Miami Mayoral Election, March 5, 1998
Wayback Machine, archived copy of the Wisconsin Elections Commission’s Report on Contingency Planning and Election System Security, October 2016
National Association of Secretaries of State, State Laws & Practices for the Emergency Management of Elections, accessed May 17, 2023
Emory Law Journal, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 2018
Phone interview, Jay Heck, executive director of Common Cause in Wisconsin, May 17, 2023
Email and phone interview, Tammy Patrick, chief executive officer for programs at the Election Center, also known as the National Association of Election Officials, May 17, 2023