The following is a symposium contribution from Justin Levitt (Loyola L.A.):
With three days left to cast ballots at the end (?) of a white-knuckle electoral process, there’s a remarkable amount to celebrate.
As Michael McDonald chronicles, more than 91 million early votes have already been cast. The most eye-popping stats are in states like North Carolina (now showing 91% of 2016 turnout, with only 4% vote by mail in 2016); Georgia (93% of 2016 turnout, with 5% vote by mail in 2016), Tennessee (89% of 2016 turnout, with 3% vote by mail in 2016, and requiring an excuse to vote by mail). And Texas. My lord, Texas. Texas reports more than 107% of 2016 turnout already. Texas requires an excuse to vote by mail (just 7% voted by mail in 2016). This year’s turnout is staggering. Voters are demanding to be heard. There’s (much) more to come.
Much of this is made possible by the extraordinary resilience and creativity of voters, advocates, and election officials. We’ve seen naked celebrities doing PSAs about naked ballots, and 700,000 new pollworker recruits. Dancing on line at the polls, and NBA arenas converted to voting locations. 102, 103, 104, 105, and 106-year-old Americans, in hazmat gear, voting despite the pandemic. A 109-year-old voter just turned 110 last week. Happy birthday, Earline!
Most Americans have had — or will have — a comparatively smooth experience, even given the disruptions of COVID-19. Most states have expanded the reliable opportunity to vote by mail, which 58 million voters have already used. Many local officials scrambled to provide opportunities to vote early. Voters appreciate these avenues, and will demand that they persist beyond the pandemic.
And yet.
This is a success only when measured by artificially depressed standards. Voters and local officials are managing despite the surrounding system, not because of it. We should celebrate the perseverance, with white-hot outrage at the conditions that make that perseverance necessary. And when new legislative sessions begin, the only way we fix the lapses of today is to remember those lapses tomorrow. Whatever the electoral results.
Even when turnout estimates amount to 65% of eligible voters, 80 million eligible citizens are shut out from or turned off of participation in representative democracy. Too many of those who do participate will have done so via a fight far harder than any republic with a care for customer service should offer.
We get what we pay for. We poured trillions into pandemic recovery, and a teaspoonful into the democracy that makes it work. Election officials begged for basic-needs cash in May; 28 federal judges later, they’re still waiting, requiring private philanthropy to duct-tape a small fraction of the holes.
Jurisdictions without capital for ballot-sorting machines turn to temp labor, and depend on kindness for polling-place staff and space. Budget limitations mean meager voter education in a year of substantial procedural change. The outpouring of volunteerism is heartwarming; heroes abound. But this is the electoral equivalent of underpaid teachers purchasing classroom supplies with personal funds.
The shortages do not fall equally on the electorate. In a story depressingly familiar, those who are already underrepresented end up disproportionately disadvantaged. Mail ballot rejections and delivery times, access to polling places, length of lines — the fact that you know the story doesn’t make the story OK.
This year, the masks also came off even more rules purporting to be about electoral process. Local jurisdictions accommodating voters discovered state officials with new and pretextual “integrity” concerns where voters represented a political threat to the incumbents. Lower courts grappling with nuances of administrability and enfranchisement found narrow orders blocked on appeal by gestures to the calendar without meaningful rationale — except, that is, when appellate courts wanted to issue last-minute injunctions of their own. The courts ratified a legislative effort to overrule its own citizens, disenfranchising voters for their inability to repay a fee whose amount is a mystery even to the state. The Senate majority’s purported desire to listen to the people before embarking on high-stakes judicial entrenchment simply . . . vanished.
And, of course, the President continues to insist, using the largest megaphone in the land, that the coming election is rigged, when those who spend countless hours securing it know otherwise. Social media platforms monetizing quick-fire emotive response have acted too slowly to deprive the fire of oxygen, when they have not actively been feeding it fuel. The claims arrive without evidence, spread without reflection, and land without protest from the party leaders who know better.
These are problems beyond one bad actor. They are systemic problems of norms and laws and incentives and institutions. Despite it all, American voters (not trolls, lawyers, or lawyer trolls) will end up deciding this election. But once they do, we owe it to that intrepid electorate to ensure that it takes less heroism to decide the next one.