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

On Tuesday, after weeks of early voting, north of 145 million Americans will have cast ballots in this year’s election, the highest turnout in any presidential election in history.  With the flurry of lawsuits in just the last few days, this election cycle also promises to be the most litigated in this country’s history.  Two days before the election, I voiced concerns that, once a president emerges from our flawed process, we will learn to live with our dysfunction rather than working to improve the system so that it works for everyone.  Two days after, I worried that the postmortem of the election would ignore those who were unable to cast a ballot this year because the problem of voter suppression would get lost in the narrative of historic turnout. 

Once the dust settles, it is unlikely that the lawsuits alleging irregularities in a number of states will amount to much.  These cases are a Hail Mary pass by a president desperate to keep his job.  But let us not lose sight of the fact that this process is not about one person or one office.  We go through all of this drama so that “We the People” can have had a role in selecting their leaders.  Our democracy is majoritarian; our leaders serve at the pleasure of the people.  More than seventy-four million people voted for the winner of this year’s presidential election, yet we sat transfixed for four days because of the narrow margin in a handful of states that would determine if the popular vote winner carried the Electoral College.  Four days.  Like many of you, I am tired and annoyed because this is a silly way to elect a president.  It’s dumb, folks.  I know that it will take a lot of political will to change our status quo, but in the meantime, there are other problems we can address.

Here is my plea.  Regardless of how we choose our president (and we definitely need to work on that), the baseline of our system of elections should be the voter.  Not just any voter, but:

-the people who requested an absentee ballot in the Wisconsin primary but never received one;

-the people who waited in line for 8 hours in Gwinnett County, GA to cast a ballot during early voting;

-the people who mailed in their ballots weeks in advance to give the Post Office time to deliver it (and literally had no assurances that the ballot would be delivered);

-the disabled voter who used a drive thru voting location to cast a ballot (only to worry later that the ballot might be invalidated by court order);

-the Harris County, Texas voter who thought that they could put their ballot in the drop box close to home (before the Governor limited the county, which is the size of Rhode Island, to one drop box)     

-the voter who lives more than 10 miles from the nearest state ID issuing office and does not have transportation to get the identification so they can vote

-the individual with a felony conviction who could not find out the amount of the fines and fees that needed to be paid so that they could register to vote in time for this year’s election

-the voter in Michigan who had hoped to get a ride to the polls only to find that the ban on such rides had been reinstated by court order

-the Indiana voter who was old enough to vote but not old enough to vote absentee

Let’s not focus on the more than 145 million people who successfully cast a ballot, but the countless number who tried to vote and failed during both the primaries and general election.  Sadly, the courts have rarely focused on the burdens these needless regulations impose on voters, instead prioritizing the power of the states to impose these burdens.  According to the Supreme Court, this authority is plentiful. 

Yet why should the states have a prerogative to disenfranchise that we, the voters, are bound to respect?  States should have obligations to make voting easier, not harder.  Every restriction should be justified, the rights of every voter respected.  Having a voter-centered democracy is not about making it difficult for states to run an election system.  It is about avoiding regulations that make it hard to vote for partisan gain in a system that is supposed to be about the voters, not the states. 

However, if I am wrong that our system is voter-centered—and recent events suggest that is certainly possible—then we need to call ourselves something other than a democracy.  Don’t lull people into thinking we are the greatest democracy in the world if we are failing along many of the metrics that would identify this country as such.  America should not be able to claim the mantle of democracy while prioritizing the state over its citizens, nor does high turnout insulate America from criticism.  We had record turnout in 2020 because many citizens decided that artificial barriers would not deter them from voting, not because voting is as easy and accessible as it could be.  Voting should be easier in a democracy, and certainly easier in a global pandemic. 

As we entertain the ongoing lawsuits challenging the election results—some of which are centered in questions about the scope of the state’s authority over elections—we ignore at our peril the question that may well determine the political future of this country: are we a democracy or not?  If the answer to this question is yes, then we need to focus on the voters.