One of the central concerns animating Rick Hasen’s excellent book, Election Meltdown, is Americans’ decreasing confidence in the electoral system. Genuine worries about voter suppression and voting machine insecurity, as well as manufactured anxieties due to disinformation, lead citizens to question the fairness of the system and the legitimacy of election results. As scholars of comparative politics are quick to recount, trust in the mechanics of democracy becomes very difficult to regain once it is lost. The 2020 election, therefore, represents a turning point for the United States: Will supporters of the losing candidate question the validity of the election and the legitimacy of the winner?
I should admit that I have frequently criticized a focus on confidence and perceptions in the context of the law of democracy. In the campaign finance context, I have worried about the Supreme Court’s emphasis on the appearance of corruption as a justification for regulation of contributions or expenditures. In the context of voter identification, coauthors and I sounded an alarm that perceptions of fraud may have been disconnected from the reality of what was happening in polling places. And in the context of race-based redistricting, wherein majority-minority districts were alleged to create “expressive harms” through racial stereotyping, coauthors and I suggested the evidence did not back up such assessments.
Times have changed. We now live in an era where perceptions of electoral dysfunction are at least as important, if not more so, than the reality. Those perceptions might be shaped by real or exaggerated reports of what is happening on the ground. Or they might be caused by broad-based public cynicism fed by polarized coverage of a particular election-relevant phenomenon.
Even worse, there are also a set of problems concerning the functioning of elections, which, when you draw attention to them, you make them worse. Analysts and critics of the system are therefore placed in a bind: Keep silent about the problem and hope your concerns are not as significant as they appear or identify the problem and be responsible for the foreseeable, if unintended, consequences when you amplify their significance. Call this the paradox of political problem perception.