The following symposium contribution is from Rick Pildes:
Back on March 20th, in what must have been one of the first pieces to address how the election process would need to adjust to the emerging pandemic, I wrote that a massive shift to no-excuse absentee voting could “create the prospect that one or more battleground states might flip from an apparent ‘victory’ for one side on election night to a victory for the other by the time the official vote canvass is completed.” In particular, “[i]f the presidential election this fall is close, with the margin of victory turning on a couple of close states, it is not hard to imagine President Trump seemingly pulling ahead on election night and in the important next-day coverage but then falling behind over the next week or more as those decisive states shift to the Democratic column when the full canvass of votes becomes complete. And it does not take a fertile imagination to picture what would then erupt in the courts, on social media and maybe in the streets.”
This eruption has indeed taken place in the courts and on social media. But it appears, as of now, that we have dodged the bullet. But just barely: because Joe Biden’s margin of victory appears to rest (as of now) on four states, not one or two, including one state – Pennsylvania – where the margin is many tens of thousands of votes – destabilizing the result is not likely. But had the outcome turned on two states with small margins, and long delayed vote counts, we might well have plunged into civil chaos or worse. We cannot put ourselves in this position again. From the experience of other democracies, we know that one of the most dangerous moments, often triggering spirals of violence, is a contested election for the head of government, with no institutions having the legitimacy to resolve that contest in a way the losers will accept. The United States is no longer in a position to be complacent about that risk.
Our election system must therefore adapt to the reality of the political culture within which we now exist. Let’s be clear-eyed about that culture, which is not likely to disappear soon: a culture of deep distrust and suspicion, in which 25% of supporters on both sides this year believed their candidate could lose only if the process were rigged. A culture in which social media will instantly inflame sinister interpretations of any problems in the process, real or perceived. In this toxic environment, fomenting doubt on the integrity of the process has also become a tool politicians use to mobilize angered voters led to believe the election is about to be stolen. Violence is latent, easily mobilized.
Instead of simply contesting policies and candidates, we are also now in endless battles over the ground-rules of the election process itself, even up to the eve of the election. In state after state, we fight one battle after another over whether ballots must be requested and returned by this date or that date, and a myriad of other issues. Last minute decisions from election officials, state courts, and federal courts shift the ground-rules back and forth. We cast votes under the existing rules, then wait to learn whether courts will invalidate those rules after the fact. None of this inspires confidence in the solidity and integrity of the process.
These are profound challenges, far beyond what election reform alone can address. But in the area of election reform, this election provides new reasons we might be better off fighting out the ground-rules for national elections in Congress, rather than across 50 states. Federalism has many advantages, but on a number of voting policies, it matters more that we have a clearly settled, stable policy well in advance of the election than the actual content of that policy. Tradeoffs exist between maximizing every possible opportunity for voters to participate and other important values, such as bringing finality to elections sooner rather than later, in a political culture in which long delays inevitably will be exploited by one side or the other. If we battled those tradeoffs out once and for all in Congress, the resolution would not just be nationally uniform, but more stable. National politics involves a broader array of groups and generates a more thorough focus on these issues than in state legislatures.
National legislation would also minimize one of the worst features of our current system, which is that state election laws for national elections can be challenged in both state and federal court, thus tying these policies up in court all the longer. Moreover, federal courts might well be more reluctant to overturn features of a congressional election code, given the greater legitimacy that attaches to the arduous, national lawmaking process. Indeed, perhaps Congress could consider a provision barring legal challenges to the election code once it gets too close to the election. Congressional legislation is also more difficult to change than state laws, given the structure of the national lawmaking process.
The best time to enact such legislation is probably during divided government. If one side can ram down the throat of the other its maximal agenda, that solution is likely to be undone the next time the other side returns to power. Policies underwritten by some degree of support from within each party, which would require compromise from both sides, are more likely to provide a fixed framework for elections. To be sure, some issues about voting policy, such as non-discrimination ones, are so central they cannot be subject to compromise. But many issues, such as those about deadlines, or methods of voting, and others involve legitimate tradeoffs between different democratic goals. Resolving those kind of issues through national legislation, underwritten with cross-party support, would help solidify our election structure in the face of the stresses we managed to survive this time from the kind of political culture in which we find ourselves, unfortunately, living.