[cross posted from Balkinization]:
The Election Meltdown Paradox, and Broader Questions About the Health, Stability, and Future of American Elections and Democracy
For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).
I am grateful to Jack Balkin for hosting this symposium on my book Election Meltdownand to the impressive symposium contributors for both their praise and their thoughtful critiques. Election Meltdown argues that four factors are contributing to Americans’ increasing mistrust that their votes will be fairly and accurately counted. Voter suppression has escalated as a Republican tool aimed to depress turnout of likely Democratic voters, fueling suspicion. Pockets of incompetence in election administration, often in large cities controlled by Democrats, have created an opening to claims of unfairness. Old-fashioned and new-fangled dirty tricks, including foreign and domestic misinformation campaigns via social media, threaten electoral integrity. Inflammatory rhetoric about “stolen” elections supercharges distrust among hardcore partisans. Together, these raise concerns that losers in the 2020 election will not accept the election results as legitimate and will instead view the election results as the product of cheating.
The book ends by considering short-, medium-, and long-term solutions to deal with the crisis in American confidence. Given my concern about a lack of good short-term solutions, I convened a recent conference on whether American democracy can survive the 2020 elections and created an ad hoc group which will make recommendations in a few months, suggesting changes in law, media, tech, and politics and norms to minimize the chances of meltdown in November.
In reading through the provocative symposium contributions, I see three themes deserving a response: (1) talking about an election meltdown paradoxically increases the chances of its occurrence; (2) the pathologies I describe in Election Meltdown run deeper than electoral dysfunction to reveal a crisis in American democracy; and (3) the risks to our election process are no greater than they have been in earlier periods of American history.
The Meltdown Paradox
A number of contributors, including Nate Persily, have noted that highlighting problems with the administration of American elections can paradoxically decrease Americans’ confidence in the process. Explaining that electronic voting machines are hackable (even if not hacked), for example, can cause Americans to lose more confidence in the system than if we simply ignored the problem.
I view the ostrich-like approach to the problems with American elections as both unworkable and counterproductive. It is unworkable because there is no question that the news media is going to highlight problems with American elections in the run-up to the 2020 elections. For example, the news media hyped the delays in reporting results and subsequent problems in the Iowa Democratic caucuses, highlighting the problems for American voters. There will be problems with elections, and there will be some, including the President, making unsubstantiated claims that the problems stem from deliberate fraud in the system. The issue is unavoidable.
This means that efforts to avoid talking about the problem are counterproductive. I plead guilty to Guy Charles’s claim that the title of my book is alarmist (“the only thing missing are the plagues and locusts”). I am sounding the alarm because we are still 8 months away from the election and there is still time to try to make things better. Educating the media, for example, that election returns may take days to count thanks to changes in election administration can help to undermine the conspiracy theories that will take hold if vote totals are delayed. Now is the time to act, not to be complacent.
A Crisis of Democracy, Not Election Administration
In somewhat different ways, Tabatha Abu El-Haj, Franita Tolson, Dan Tokaji, Steve Griffin, and Guy Charles make the point that some of the pathologies described in Election Meltdown are better viewed as a crisis in American democracy than as simply a problem with the system used for the casting and counting of votes. In this reading, election maladministration is part of a larger story about systemic political and economic inequality in the American political process.
I do not disagree that one may situate concerns about election meltdown into a broader picture of American democratic decay. Key pathologies of the current American political system include the distortions of the electoral college and representation in the Senate, and a system of influence giving the wealthy greatly disproportionate influence over the shape of public policy in the United States.
I do not mean to minimize these serious concerns. But meltdown issues are both more urgent (because a failed 2020 election could plunge the United States into a political crisis) and more tractable. There are steps that may be taken to shore up the security of our voting machines, educate the public about vote counts, and insure that eligible voters will be able to cast a ballot that will be meaningfully counted. These kinds of steps are much easier to imagine than reforming the electoral college or coming up with ways of restoring civil society and achieving greater economic equality. So while I do not believe that issues of election administration are isolated from these larger societal trends, a piecemeal approach focused on fixing elections seems both prudent and a priority.
Same as It Ever Was?
Franita Tolson most forcefully makes the claim that American election systems have never been “healthy and robust.” She rightly points to an early history of election fraud in the United States along with the systemic disenfranchisement of African-Americans and others through American history. She calls voter suppression “as American as apple pie.”
Franita Tolson is no doubt correct about her history, but I suppose my answer is that my frame of reference is considerably narrower. We can consider the period from the late 1960s to the early 2000s as a kind of golden age of elections in the United States, with increasing enfranchisement (thanks in large part to the passage of the 1965 Voting Rights Act and a number of constitutional amendments) and a sharp decline in election administrator fraud (thanks to the prevalence of voting machinery and transparency measures). While the trajectory up to the 2000s had been toward cleaner and more inclusive elections, today we are witnessing a voting rights recession.
A big part of the reason for the decline in voting rights, as Steve Griffin and Joey Fishkin argue, has been actions of the Republican party in engaging in modern acts of voter suppression. Rather than seek to expand the pool of voters for the party, the party has transformed itself into an overwhelmingly white, rural party that has a better chance of succeeding in close elections by shrinking the electorate and politicizing election administration. This is certainly not true for all Republicans, but the actions of politicians in states such as Texas and North Carolina show the new push toward suppressive voting measures, aided by a Supreme Court that no longer aggressively protects voting rights.
Joey Fishkin helpfully characterizes the cast of characters pushing false voter fraud claims as among “opportunistic nihilists” both within and the United States who use false claims of voter fraud and hyped up problems with the election system to undermine confidence in the fairness of the electoral process to hurt American democracy. Fishkin is skeptical that an audience already drinking the Kool Aid can be convinced by rational argumentation such as that offered in Election Meltdown. My own view is that until we move toward more nonpartisan election administration as urged by Dan Tokaji and others, these pathologies are likely to grow further as polarized positions continue to harden.
On top of that, as Nate Persily has shown, the collapse of the old information regime and the rise of misinformation spread via social media creates new challenges in terms of the ability of Americans’ to be able to make rational political decisions consistent with their interests. As Ciara Torres-Spelliscy carefully explains, the new technology allows for outside actors such as the Russian government to piggyback on American electoral dysfunction and exploit growing polarization by focusing messages to demobilize African-American voters. This is a failure of campaign finance law, and a failure of American norms. Major reform is urgently needed to help restore a healthy American political process.
It is fair to characterize the current American electoral dysfunction as raising a set of new challenges with echoes from the past. It is too early to say whether today’s pathologies will return us to the bad old days of American democracy. But we are on a knife’s edge, and we need to work now to try to prevent a failed 2020 election. Without that, plans for other, larger reforms are meaningless.
Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. You can reach him by e-mail at rhasen at law.uci.edu
Posted 9:30 AM by Guest Blogger [link]