On this edition of the pod, we conclude our three-part series on election advocacy by nonprofits with a focus on post-election advocacy. This isn’t very common, but we’ve seen it in 2000 and there are potential signals we could see it in 2020. What can nonprofits do if there’s a contested election?
Our attorneys for this episode
- Reminder: 501(c)(3)s cannot support or oppose candidates
- Nonpartisan motivations to advocate in contested elections
- Proper administration of the election under the law
- Ensuring all legal votes are counted
- Protecting the will of the electorate/upholding democratic principles
- No IRS guidance on this, but it’s consistent with approved pre-election and election days advocacy
- Example: Brennan Center’s work in 2000
- Amicus brief in Bush v. Gore
- Partisan and nonpartisan interests can legally coexist
- While the Brennan Center argued for the same thing as the Gore campaign, its work was still nonpartisan because the arguments were centered on voters’ fundamental constitutional rights and not the partisan interests of the campaign.
- Other examples
- Common Cause’s work in the Georgia gubernatorial election in 2018
- Minnesota nonprofits’ work in the US Senate race in 2008
- What kinds of advocacy are available to nonprofits in a contested election?
- Administrative advocacy, including advocacy around secretary of state certifications of the winners, and the process of counting of ballots.
- Ballot chasing and curing. If a voter submits a ballot that fails to meet requirements under state law (i.e. stray marks, wrong envelopes, their signature doesn’t match the one on file, etc.), nonprofits can contact those voters and help them fix the problem within the time limits set by state law.
- Litigation, including requests for emergency injunctive relief on and after Election Day, and submitting friend-of-the-court briefs before state and federal appellate courts.
- Protests and other public gatherings, demanding proper administration of all ballot counts and fidelity to election procedures under the law.
- Direct advocacy to members of legislative bodies or governors when they are making decisions that are critical to the disposition of an election. This includes lobbying for emergency legislation, calls for oversight, or weighing in on a state legislature’s efforts to directly submit a slate of presidential electors in the event of perceived voting irregularities or a natural disaster.
- 501(c)(3)s can do any of these things for nonpartisan motivations
- 501(c)(4)s and other nonprofits can do these things with nonpartisan motivations, or with partisan reasons (tax law limits how much). Election laws dictate the rest.
- 501(c)(3)s can work in coalitions with other nonprofits that are doing nonpartisan motivated work
- Presidential election dates to know
- December 8 – Safe Harbor
- December 14 – Electoral College votes
- January 6 – Joint session of the new Congress meets to certify the Electoral College vote
- January 20 – POTUS term ends at noon ET, and the winner as certified by Congress, or as chosen by Congress in a contingent election, or person designated by the Presidential Succession Act to be acting President takes the oath of office as POTUS.