Tony Gaughan has posted this draft on SSRN (forthcoming, Duke Journal of Constitutional Law and Public Policy). Here is the abstract;
The 2016 presidential election shook American democracy to its foundations. From Russia’s hacking of Democratic National Committee emails to President Trump’s false allegations of widespread voting fraud, America’s democratic institutions emerged from the election battered and bruised. The stunning turn of events and the unprecedented controversy that surrounded the election had a profound impact on public opinion. National surveys now consistently find that a majority of Americans question the integrity of the nation’s election system. Accordingly, this article contends that we have entered into a dangerous new chapter in the nation’s history that not only threatens public confidence in election fairness but potentially could even undermine the long-term health of the nation’s democracy. The unjustified fear of election fraud has itself become a threat to America’s democratic principles.
This article identifies three toxic developments that if left unchecked threaten the future of voting rights in America. The first is the rise of fake news. As the traditional news media has lost its gate-keeper status and as the internet has facilitated the rapid spread of misinformation, false allegations of voting fraud dominate news cycles. The pervasive nature of the claims has triggered a precipitous decline in public confidence in election integrity, even though there is no factual basis to justify the public’s fear of widespread fraud. The second is the phenomenon of hyperpolarization. The partisan divide has reached such historic levels that Republicans and Democrats increasingly view the opposing party as a threat to the nation’s well-being. Hyperpolarization makes partisans more inclined to attempt to limit the political influence of opposing voters, a development that is particularly dangerous in the United States because of the third toxic feature of contemporary politics: partisan control of election administration. Unusual among major democracies, the United States entrusts the majority party with responsibility for administering elections and setting voting rules. In recent years partisans have become increasingly aggressive in adopting election laws that benefit one party at the expense of the other. The real scandal of American politics is not illegal vote rigging or voter fraud but rather the extent to which partisans are legally permitted to manipulate election rules for political advantage.
The United States thus stands at a uniquely dangerous moment in its history. The risk that America may evolve into an illiberal democracy is particularly high in light of the ongoing battle over voter registration restrictions and other laws that limit access to voting. In the name of safeguarding election integrity, legislatures across the country have adopted new voting laws that many courts and scholars have concluded make it harder for poor and minority voters to participate in the democratic process. As Americans increasingly view election stakes in apocalyptic terms, as false allegations of election fraud spread like wildfire, and as partisan officials control election rules, America’s democratic institutions face their most serious domestic challenge since the enactment of the Voting Rights Act in 1965. This article concludes by proposing three steps to defend and preserve the vitality of America’s liberal democratic norms at this dangerous moment in the nation’s history.
Looking forward to reading this!