#2DaysOut: “The Vulnerabilities and Indeterminacy of the Presidential Election Process” (Michael Morley)

The following is a symposium contribution from Michael Morley (FSU):

The 2020 general election has demonstrated several vulnerabilities of our presidential election process, as well as our electoral system more broadly.  First, many states are ill-equipped to deal with a major crisis that impacts an election, such as a hurricane, earthquake, power grid failure, pandemic, or other such tragedy.  A robust election system allows for voting through a wide variety of mechanisms, such as in-person voting, absentee voting, curbside voting, and even bipartisan teams of election officials bringing ballots to assisted-living and other similar facilities.  If an election emergency causes a particular method of voting to become unavailable, impracticable, or too dangerous, having well-established alternate avenues for voting helps to ameliorate the burden on voting rights. 

Different types of disasters can impact the electoral process in different ways.  Being prepared to vigorously implement a diverse array of voting options is one way of mitigating systemic risk to our electoral system.  For COVID, shifting the focus to absentee voting was an effective response to prevent opportunities for in-person transmission of the virus.  Some states restrict absentee voting, however, and many others have election systems designed to deal with very limited numbers of absentee ballots.  

 More broadly, because it is difficult to anticipate the full range of emergencies that may impact an election, or the precise manner in which such emergencies will hit, state law must grant officials flexibility and discretion to modify certain rules, procedures, or other aspects of the electoral process as necessary to respond effectively and preserve voting rights.  As the COVID pandemic painfully demonstrated, many states lack such election emergency statutes.  An election emergency law allows legislators to reduce or eliminate questions about the scope of election officials’ authority; specify in advance the types of modifications that officials may, and may not, adopt; and alleviate the need for emergency ad hoc litigation.  Effective election emergency laws would have afforded election officials greater guidance and authority in responding to the virus.  In the absence of such laws, even anodyne and seemingly nonpartisan reforms such as allowing election officials to begin pre-processing and pre-canvassing absentee ballots substantially before Election Day could not make it through the legislative process in some key swing states.

 Second, the wide range of litigation pending in federal and state courts across the nation, as well as the numerous questions that have been raised concerning possible election-contest scenarios, demonstrate how many critical constitutional and legal questions concerning the basic rules governing our elections remain unanswered.  The Electoral College, of course, elects the President, and it is ultimately Congress that has sole constitutional responsibility for counting and determining the validity of electoral votes.  That process is governed by the Electoral Count Act of 1887.  However, the Act fails to clearly address several important issues, leaves important terms undefined, and is written in unnecessarily confusing language that creates ambiguities and leaves room for political disputation.  Again, establishing clear, generally accepted procedures for the counting of electoral votes in Congress seems to be the type of nonpartisan reform—particularly if adopted in advance of a presidential election—that can reduce the likelihood of a political crisis. 

The constitutional principles governing the underlying process of voting are not much more settled.  Most notably, the Court has never addressed how broadly, if at all, Bush v. Gore’s Uniformity Principle applies to voting procedures.  Bush held that states may not apply “arbitrary and disparate treatment” to different voters participating in the same election.  Bush applied that principle in the narrow, technical context of holding that states must apply consistent, specific rules when recounting ballots cast in an election. Notwithstanding the limiting language in Bush v. Gore, however, several lower courts have applied Bush’s Uniformity Principle across a much broader range of circumstances.  Some courts have barred different localities within a state from adopting voting machines with materially different error rates, or applying different sets of electoral rules that would provide various counties’ residents with materially different opportunities to vote.  

 On its face, the Uniformity Principle appears appealing: Equal Protection requires voters participating in the same election have substantially equivalent opportunities to vote.  On the other hand, American elections have historically been conducted in a highly decentralized manner, with local election officials often having broad discretion to tailor the details of electoral rules to the particular needs of each jurisdiction’s citizens.  And, in another line of authority dating back to the Civil Rights Era, the Court has held that the Equal Protection Clause generally does not bar states from removing barriers to voting, or providing additional opportunities to vote, even if those opportunities are limited only to certain groups of voters.  Thus, courts have generally held that states may limit absentee voting to only certain groups of voters, or allow some jurisdictions within a state to offer longer early voting periods or more numerous early voting locations than others.  Rigorous application of the Uniformity Principle would make it difficult for individual counties or localities to materially expand access to voting; reforms substantially expanding opportunities to vote in statewide elections would have to occur on a statewide basis, or not at all.  Whatever the proper balance between these competing imperatives, the uncertainty has contributed to many of the disputes concerning absentee voting in the wake of COVID. 

Likewise, the core standard the Court uses to assess the constitutionality of election-related laws exacerbates this uncertainty.   In Anderson v. Celebrezze and Burdick v. Takushi, the Court held that the constitutionality of most election-related rules, requirements, and procedures depends upon a highly subjective, ad hoc balancing test in which a court weighs the importance of the state’s interests at stake, the extent to which the challenged provision furthers those interests, and the magnitude of the burden on voters.  It can be difficult, in many cases, for states to correctly anticipate how judges will weigh these competing factors, especially under materially changed circumstances like COVID, further underscoring the uncertainty permeating the electoral process. 

Finally, at least some of the challenges facing our electoral process could be ameliorated by much greater funding.  Voting is at the very foundation of democratic government.  It is essential to the legitimacy of our government that every eligible voter be given a meaningful opportunity to safely cast a ballot and have it be counted without significant burdens.  Greater funding for our electoral system could lead to better technology, more reliable and updated databases, more personnel, more polling places, fewer delays, and shorter lines at polling places.  It is especially intolerable when the burdens of voting fall disproportionately on indigent or racial minority groups.  (Indeed, it is in this context—preventing tremendous disparities in waiting times among different jurisdictions’ polling places—that Bush’s Uniformity Principle seems especially appealing).  The controversy over the 2000 presidential election led to the enactment of the Help America Vote Act, which took the first steps toward helping states modernize their election systems.  Perhaps the widespread controversies concerning the 2020 election will induce Members of Congress and state legislators—hopefully, of both parties—to finish the job. 

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