“Optimism and Despair About a 2020 ‘Election Meltdown’ and Beyond”

I have written this brief response to an upcoming Boston University Law Review online symposium on my recent book, Election Meltdown. Here is the abstract:

It is easy to assume that the author of a book called Election Meltdown thinks we are in a Dickensian “worst of times.” Adding to the feelings of despair is the condition of the United States since the book appeared in February 2020, with 200,000 American dead from coronavirus and millions more affected; systemic racism brought to the forefront of the national consciousness by the killing of George Floyd and the Black Lives Matter protests; President Trump’s decision to use force against protestors in Washington D.C. and beyond; and the President’s continued insistence without evidence that extended mail-in voting necessitate by the pandemic will lead to a stolen or rigged election.

Four of the contributors to this fine and generous set of Boston University Law Review symposium essays on Election Meltdown—Atiba Ellis, Ellen Katz, Lisa Marshall Manheim, and Lorraine Minnite—believe things are even worse than I described when my book first appeared in February, and particularly that systemic racism and voter suppression have contributed to a crisis not just of election administration but of American democratic legitimacy. Two symposium contributors, Anthony Gaughan and Derek Muller, believe that while we are not necessarily in the “best of times,” we can hope that forces such as free speech and a modern history of honest elections in the United States can save us from a November election meltdown.

My position falls somewhat between these two poles. A debacle is unlikely to happen in November, but thanks mostly to luck, not work. What is most likely to save us from a Twitterized Bush v. Gore 2.0 and possible post-election violence in November in neither an honest election system nor counter speech to combat election misinformation. Instead, simply speaking numerically about the margin of litigation, the odds are against an election close enough to go into overtime in a state crucial for the electoral college outcome.

But just as someone who runs a nuclear power plant would not ignore a small risk of a catastrophic meltdown of the reactor core, we cannot ignore that the four forces I described in my book—voter suppression, pockets of election administrator incompetence, dirty tricks such as Russian disinformation campaigns, and an increasingly incendiary rhetoric about stolen or rigged elections—could lead to a catastrophic breakdown of the American electoral process in a close enough election, especially given the social stresses exacerbated by the pandemic, injustice, and social unrest. If we dodge a bullet now, it is only because election administrators’ prayers are answered.

In this very short essay I first explain why the optimism of Gaughan and Muller is unwarranted, and that the American election system requires fundamental repair. I then explain that although the deeper pathologies in American democracy diagnosed by Ellis, Katz, Manheim, and Minnite (and some contributors to an earlier Balkinization symposium on Election Meltdown) are correct, that does not mean we will fail to have a decisive presidential outcome in November. Instead, their critiques point to the need for broader, more systemic change not just in American elections but American democracy. We should channel our despair into resolution to begin urgent work after we make it through this tumultuous election period.

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