A Note of Thanks, And a Blog Slowdown, as I Complete My “Cheap Speech” Book Manuscript and Contemplate the Future of the Election Law Blog and Election Reform Work

This election season has been a challenge to American democracy, one that was even more severe than I anticipated in Election Meltdown. That book came out in February, the day of the Iowa caucus debacle, and things declined from there. In February, I convened a group of leading thinkers in law, politics, tech, and media to discuss the threats to the integrity of the election, in a conference called, Can American Democracy Survive the 2020 Elections? The question was not meant rhetorically.

Some the participants in that conference participated in a private meeting after to begin to hammer out recommendations to assure a fair and safe 2020 election. That conference turned out to be the last big conference I attended before COVID shut down in-person gatherings. The group continued to deliberate about recommendations online, even as some of its members contracted the virus. The recommendations had to be reworked given COVID.

In late April, we released our report, Fair Elections During a Crisis, and the report had some key recommendations which got a fair bit of attention and traction, including the key idea needed to be prepared that because of COVID, the election could be too early to call for a number of days, and in the meantime there could be unsubstantiated claims of voter fraud and disinformation, and an attempt to undermine American democracy. That meant that social media companies had an important role to play in combatting disinformation. It also called for election administrators and Congress to assure that Americans had safe mail-in and in-person voting options in November.

Over the last few months, Donald Trump’s attack on the integrity of the election system, and the willingness of many in the Republican party to go along with completely unsubstantiated claims of voter fraud and vote rigging, have put the system under tremendous strain. That’s why it was so important that we had as fair and clean an election as possible. I am in awe and grateful to the state and local election administrators of both parties who engaged in Herculean effort to make our election fair. I am profoundly disappointed that some Republican legislators and others acted to make it harder to vote even during a pandemic, and that some courts, including the Supreme Court, have engaged in new jurisprudence which made voting harder than it needed to be during the pandemic, and, as I wrote yesterday in the Times, will present new voting rights challenges in the future.

As someone who has been out in public explaining the complex rules surrounding our elections and the litigation that inevitably accompanies disputes in American life, I want to express my appreciation to the community of election law scholars and political scientists who worked tirelessly to assure that the public got fair and accurate information, and who debated and discussed issues in good faith despite some ideological disagreements. It is really easy to make errors in the midst of election disputes, and I made fewer mistakes because of this rich and generous community.

And I want to express my great appreciation for courts that have held up the rule of law, again despite the usual ideological agreements. When our norms have been challenged, our laws have held—barely, but held.

I’m now going to step back from the blog to complete work on my book manuscript, Cheap Speech, that is considering questions of how do deal with the flood of misinformation and disinformation about elections that will pervade the process going forward. I’m way behind now because of what has transpired over the last few months.

I’ll still blog the most important developments, but I plan to write much less in this space for the rest of the year. I also plan to take some time to think about the future of ELB. I’ve been running this blog since 2003: it is a labor of love but a tremendous amount of work. I need to consider the most sustainable model going forward.

I also would like to find time to consider long term election reform. As I wrote in the New York Times in August:

Beyond triage for 2020, longer term change requires bolder thinking. We need a new social movement, that may take a generation or more, pushing a constitutional amendment protecting the right to vote. It would guarantee all adult citizens the right to vote in federal elections, establish a nonpartisan administrative body to run federal elections that would automatically register all eligible voters to vote, and impose basic standards of voting access and competency for state and local elections.

Talking of a constitutional amendment in the current polarized atmosphere may sound like a pipe dream when Congress cannot pass even basic voting rights protections, like restoring the part of the Voting Rights Act that the Supreme Court destroyed. But the current situation is untenable.

We need a 28th Amendment for voter equality around which people can organize and agitate. Organization could emulate the battle for passage of the 19th Amendment, which bars gender discrimination in voting. It took more than a generation for that amendment to pass, and along the way activists for equal women’s suffrage got state legislatures to bolster voting rights and the public to change its attitudes about voting.

It has been 100 years since passage of the 19th Amendment and 150 since the passage of the 15th Amendment barring racial discrimination in voting. Despite those accomplishments, every national election features endless angst and litigation over assuring people the right to vote, which puts special burdens on those who already face the greatest barriers. We need to bring that struggle to an end and press forward toward a new voting rights amendment that would assure that our representatives truly reflect the will of the people.

Thank you for reading, and Happy Thanksgiving!


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