Ned Foley Op-Ed on the Legitimacy of the Fall Election

In the NY Daily News:

The elections will remain scheduled for Nov. 3. The question will be whether procedures to be used will be sufficient to permit every eligible voter wishing to participate to have an adequate opportunity to cast a ballot that will be counted.

Candor requires acknowledging that there will be challenges in satisfying this basic standard — challenges caused largely by conditions associated with coronavirus.

First, some voters may properly request mail ballots to which they are entitled by state law, but they may never receive them because of the failure of local election administrators (or the postal service) to deliver these ballots to the voters in time.

Second, some polling locations may have unreasonably long lines — several hours or more — that cause voters to forego casting a ballot because they cannot wait that long.

The primary elections this year saw both types of problems, and they probably will happen again in November.

But here’s a crucial point. As horrible as wrongful disenfranchisement is to the particular voters who suffer it, and as much as the electoral system should endeavor to avoid any wrongful disenfranchisement at all, what matters in terms of the capacity of the election to serve the purpose of collective self-government is whether or not the wrongful disenfranchisement affects the accuracy of the outcome.

Given the purpose of elections, the question ultimately is this: Is the candidate declared the winner the candidate that the electorate collectively wanted to win? If the answer is yes, then the system did not fail to serve its essential purpose even if there were problems. (Recall: President Obama needed to establish a commission after the 2012 election because of the long line problems that year, but those problems did not negate the validity of his victory.)

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