The following is a symposium contribution from Michael Morley (FSU):
Our experience with the 2020 presidential election confirms that a sound electoral system rests on three equally important pillars. First, most fundamentally, all eligible voters must have a reasonable opportunity to cast a ballot safely and without substantial burden. The point of an election is to ascertain the will of the people. It cannot serve that basic function if some portion of the electorate is effectively excluded from participation. More broadly, as I’ve repeatedly emphasized throughout the COVID pandemic, an electoral system must offer a range of distinct avenues for voting to be sufficiently robust to withstand a range of election emergencies, such as natural disasters, pandemics, terrorist attacks, power grid failures, and the like. The more mechanisms for voting that a state allows, the less susceptible to any particular systemic risk the overall system becomes.
Moreover, election officials need flexibility to modify particular rules governing the electoral process to mitigate the impact of threats to the electoral system, so they can keep avenues for voting available despite outside threats. This flexibility can come from either the general election code itself or election emergency laws. The modifications that election officials made to in-person voting during the 2020 election, for example, in terms of both the types of polling locations to use, social distancing requirements, and the availability of personal protective equipment, allowed robust in-person voting to occur despite the serious threat of COVID.
Second, just as importantly, the system must be designed to minimize the potential for mistakes, accidents, irregularities, and even fraud. Perhaps one of the most unfortunate aspects of modern political debates over elections is that concerns about systemic integrity have become politicized, with exaggerated claims of fraud often being wielded as a cudgel to reduce voting opportunities. Historically, the desire to ensure accurate results, avoid irregularities, and prevent fraud has been bipartisan. One of the main reasons we have a single, nationwide Election Day for federal elections, for example, was due to widespread congressional recognition of “pipelaying” and “colonizing”: political parties brought people from one state to another to vote in multiple states’ presidential or congressional elections, because they occurred on different days. Many Reconstruction Era laws enacted with the unquestioned purpose of protecting the right to vote for African Americans in southern states contained strict prohibitions on voter and election fraud. Indeed, ballot-box stuffing was among the tools white supremacists used to disenfranchise black voters. Even the Voting Rights Act itself—perhaps the single most important statute protecting the right to vote—bolstered its critical antidiscrimination provisions with strong election integrity safeguards. Adequate protections for the electoral process can undermine attempts to impeach the results of an election afterwards through baseless, vague, generalized claims about potential misconduct that might have occurred.
Third, finally, the system must appear legitimate to the general public. In Buckley v. Valeo, the U.S. Supreme Court famously recognized that the Government has a compelling interest in preventing not only actual corruption, but the appearance of corruption, as well. Having a fair, accurate, and inclusive electoral process is crucial. In many ways, however, it is just as important that the public recognize the process to be fair, accurate, and inclusive. This is where transparency is key. To borrow another concept from campaign finance law, Justice Brandeis famously said, “Sunlight is the best disinfectant.” In a bitterly contested election, election officials must assure that as much of the process as possible is subject to meaningful public scrutiny and observation. Several post-election lawsuits were filed in this election cycle, for example, over whether campaign observers were seated closely enough to be able to monitor the processing of absentee ballots. Election officials should not regard observers from campaigns and the press as unwelcome interlopers to be tolerated, but rather as essential partners in the process who can give the public assurance that nothing untoward occurred. Just as importantly, such observers can provide outside, independent sets of eyes to identify potential mistakes or oversights.
There will be some situations where these three goals—expanding voting opportunities, ensuring accurate results, and bolstering public legitimacy—may be in tension with each other. And reasonable people may disagree over which of these goals should take priority in such cases. As we continue to reform the electoral process for future elections, we should focus primarily on win-win changes that bolster all of these goals simultaneously to the greatest degree possible.