#2DaysOut: “Worried About Tuesday’s Election? Not Me.” (Franita Tolson)

The following is a symposium submission from Franita Tolson (USC):

For many people, this particular election cycle feels very different than any in our lifetimes.  Individuals are voting by mail in large numbers due to the COVID-19 pandemic.  Nevertheless, courts have been receptive to arguments that would limit the ability of state and federal courts to make it easier for voters to cast ballots in these unprecedented circumstances.  For example, election officials in Pennsylvania and Minnesota are preparing for inevitable litigation with plans to segregate ballots received after Election Day.  A federal district court in Texas will have a Monday hearing on whether to toss out over 127,000 ballots from voters who used the curbside voting mechanism authorized by Texas law.  The endless litigation and high emotion surrounding the election are a perfect recipe for disaster.  Towards this end, if we are able to elect a President successfully in these circumstances, many will declare that American democracy has prevailed again. 

However, the potential for an election meltdown will always be present so long as we continue to elect presidents within our structurally flawed election system without addressing the core problems that make such meltdowns likely.  Because a winner has been able to eventually emerge under this flawed system for over two centuries, we forget that many of our elections are marred by disenfranchisement, violence, unrest, uncertainty, incompetence, maladministration, or some combination thereof.  Once the choice is made, we turn the page to focus on the next election cycle, ignoring the structural pathologies that threaten the preferences of the majority in the selection of the President.  Our democracy exists in a continuous state of chaos, and we live with it only because we somehow manage to elect a President despite the chaos.  Yet it is possible that one day our hubris will get the best of us, and we will be faced with an existential crisis that no amount of counting, recounting, or litigation will get us out of. 

While this does not mean that 2020 will be the year in which the chickens come home to roost, kicking the can down the road and inviting disaster is still profoundly irresponsible.  In reality, the problem is not Tuesday’s election—the stage has already been set and there is little to do but hope for the best— but what happens beyond Tuesday.  Once a President is elected, we will still have to grapple with the fact that state authorities have actively tried to make voting harder in a global pandemic.  It should not matter whether they will be successful in depressing turnout on Tuesday.  In other words, we cannot declare the election a success simply because voters overcome the barriers put before them.  What matters is punishing this behavior, independent of success.  We should revisit the system that permits these actions as well as the judicial precedents that have facilitated it. 

Many of the decisions coming out of the U.S. Supreme Court and lower courts in recent months have been hostile to the right to vote and overly solicitous to the authority of state legislatures.  Some of these cases have elevated the prominence of the independent state legislature doctrine, which advances the view that state legislatures set the rules governing federal elections and their authority cannot be constrained by state courts or state constitutions.  This doctrine will not disappear when a President is elected or when COVID ends, and scholars will have to grapple with its implications well beyond Tuesday’s election.  Moreover, any attempt to limit these state centric precedents to the current COVID pandemic is a pie-in-the-sky pipe dream that will not serve us or this democracy well.  Bush v. Gore was also a precedent good for one day only, yet here we are two decades later facing the prospect that the independent state legislature doctrine—a minority view from three justices in that case—may dictate whether the state legislature has largely unconstrained authority to set the rules for congressional and presidential elections moving forward. 

Nevertheless, I am not worried about Tuesday. There will be litigation, divisive rhetoric, and legitimacy concerns surrounding this election, but it is still highly likely that, like the last 230 years, a President will emerge from the ashes of this dumpster fire.  I am worried about the after.  I am worried that in four years, our conversation will be little changed because we have missed yet another opportunity to fix the problems plaguing our system.  I am afraid that we will learn to live with unfavorable Supreme Court precedents rather than challenging the very structures that have displaced the voters as the central character in our democracy.  I am afraid of Wednesday.

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