#2DaysOut: “So Far” (Sam Issacharoff)

The following symposium contribution is from Sam Issacharoff (NYU):

It would be easy to despair.  A devastating pandemic, a bitterly polarized electorate, foreign interference, a president leading an assault on the foundations of electoral democracy, election-inspired violence, and vicious partisan battles over the ability to vote, even how to vote—these would shake any democracy to its foundations.  Instead, however, let me offer two sources of genuine hope before turning to the crises that loom.

First, and foremost, is the commitment of the citizenry to the democratic process.  As lawyers and scholars, we focus on court battles over how many days after Election Day an absentee ballot might be received, or how many drop sites might be available in a Texas county.  Recent court decisions, particularly by the Supreme Court, have curtailed efforts to expand voting opportunity in response to the pandemic.  This is more than worrisome, but too much attention to doctrine might obscure the popular will to vote.  Texas may have only one drop site in Harris County, but polling access has actually expanded and more people have already voted in Texas before Election Day than voted in 2016.  Here at least, the people have spoken.

Second, despite the shenanigans, the creaky electoral machinery has performed surprisingly well.  The lines are long, but voting is occurring, new volunteers are stepping in to replace vulnerable poll workers, ballots are being processed more or less capably across the country, with the Pennsylvania and Wisconsin outliers not being the norm.  Even Wisconsin, the first Supreme Court battleground of 2020, managed to process almost a million more absentee ballots than expected in its spring election, and ran a reasonably smooth election under terrible stress.

If, as in most elections, the margin of victory is beyond the margin of contestation, then citizen determination and responsible election administrators will have saved the day.  Either way, there is work to do.

  1. Partisan polarization has gotten to the point that how one votes, where one votes, whether one wears a mask are all signs of political identity.  The machinery of elections is at risk, particularly the delicate assignment to the states of the administration of federal elections under both the Elections Clause of Article I and the Electors Clause of Article II.  Assuming congressional capability, the first of these should be addressed through federal election legislation mandating, inter alia, that except to the extent specified by federal law, the normal channels of state elections, including judicial oversight will operate during all federal elections.  This is necessary emergency voting through a blinkered reading of the independent role of the state legislature under both of these clauses.  It is shocking to see a response like that of New Jersey in 2012 following Hurricane Sandy now be a matter of constitutional challenge.
  2. Much attention will be given to the restoration of minority voting rights protections if there is a Democratic Congress and President.  In addition, it is time to address untapped powers under the Elections Clause.  Reforms, with appropriate funding, could include: congressional elections from districts drawn by independent redistricting authorities; federal elections run under the auspices of independent election authorities that do not include elected officials or partisan designees; federal elections subject to post-election review to produce standard measures of ease of voter access, availability of equipment, average time in line, accessibility of early voting, and other metrics of administrative performance; and post-election audits of reports of voter intimidation, harassment of voters or election officials, and state response to redress those complaints.  This would compel an accounting for the most critical failure of the election system in a hyperpolarized era, the use of voting administration as a partisan tool.  All could be enacted statutorily under the authority of Congress to regulate the manner of holding federal elections.  In turn, this would induce salutary reform for state elections as well.
  3. Elections today also expose the contrast between the high democratic ethos of the time and the formal structures of the constitution, adopted in a time of ambivalence toward democracy.  The nomination of Justice Barrett by a president elected by a minority of voters, and confirmed by a narrow majority of senators representing a minority of the population, highlights the tension between our constitutional commitments and simple notions of majority-control.  I leave to the side sugarplum visions of constitutional reform; the nature of the Article V process takes off the table both meaningful reform of the Electoral College (except perhaps for eliminating the vote dilution effects of winner-take-all elections, a matter not of constitutional mandate) and reform of the Senate.  But it does not eliminate statehood for Washington DC, perhaps the single most obvious democratizing reform available legislatively. 
  4. We will also have to address the bizarre threat that a state legislature might simply override the will of the voters by declaring a presidential election to have “failed” and substituting an alternative slate of electors chosen by the legislature. That is the Dr. Strangelove nuclear option of the end of democracy.  The response here lies ultimately in Congress, but immediately in the mobilized voters who stand in long lines across the country. 

Nearly 70 years ago, Justice Clark spoke of the limits of public sentiment to sear the conscience of self-interested state legislators.  The Supreme Court’s one-person-one-vote rulings helped to allow the electoral will of the majority to overcome such barriers.  On many of the points of dysfunction today, we must hope that this time the commitment of Americans to vote will sear the conscience of forces aiming at the heart of our political system.  If we survive, the task of reinforcing democracy cannot be forgotten in a moment of collective relief.

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