In advance of the 2020 election, I devoted a significant portion of my scholarship to this issue: given an official announcement (or certification) of an election’s result, how are citizens, journalists, judges–all of us–to determine whether the result should be accepted as valid?
I considered this question especially important in the aftermath of the 2016 presidential election because I thought that public discourse on this topic had become dangerously muddy, with many individuals characterizing Donald Trump’s victory as somehow invalid because of Russian interference. To me, this discourse seemed extremely problematic because I had no doubt that the vote tallies that produced Trump’s win were a sufficiently accurate count of ballots entitled to be counted and that there was no basis for considering that the wrong candidate had been declared the winner of the election. To characterize Trump’s victory as somehow invalid confused public discourse on this important topic, hindering the ability to distinguish the circumstance in which an election is truly invalid because the wrong candidate has been declared the winner.
As a consequence of this concern, I wrote a law review article on this topic: Assessing the Validity of an Election’s Result: History, Theory, and Present Threats. I also wrote a shorter essay on the same topic aimed at a more general audience: How to Know if the Election Is Actually ‘Rigged’. (If I’m capable of assessing my own work, this latter essay might be the most significant piece I wrote in 2020.)
I mention this now because, unfortunately, I think we are in a much worse place as a nation on this topic than we were before Election Day in 2020. Trump’s Big Lie about his defeat being the result of a stolen election is, of course, by far the main factor. But also disconcerting is the increasingly prevalent suggestion that future outcomes may be invalid because of voter suppression in the states.
To briefly summarize the analysis in both the law review article and the shorter essay, my argument was (and remains) that a certified election result may be invalid in either (or both) of two ways: (1) eligible voters were denied an adequate opportunity to cast a ballot, and thus the tally of ballots (however accurate the count of ballots cast) wrongly excludes missing ballots that should have been included; and (2) the count of votes for some reason does not match the lawful votes actually cast.
As we look ahead to this year’s midterms, and beyond to 2024, as a nation are we going to be able to make an assessment of whether the elections we hold yield valid results? I worry that our capacity to do this will be challenged even more than it has been in the recent past. I worry about this for two reasons (without intending to equate the severity of the two concerns). First, I worry that voting laws in some states may cause a debate over whether voters truly had an adequate opportunity to cast a ballot. Although I for one might be inclined to characterize the opportunity as sufficiently adequate (although far from ideal), what if a substantial portion of the public comes to embrace the view that the opportunity to vote was less than minimally adequate and thus essentially a condition of disenfranchisement? Second, I worry about the kind of denial of electoral reality that characterizes Trump’s Big Lie: namely, a refusal by a substantial portion of the public to accept the accuracy of vote tallies, no matter how transparent (and vigilantly observed) the counting and recounting process.
Thinking about this year’s Texas gubernatorial election as an example, I hope that whatever happens between now and Election Day this November, we will be in a position to make an impartial judgment on whether the result qualifies as valid or invalid–rather than this question having become hopelessly mired in a red-blue partisan divide, so that there no longer is the capacity to engage in a shared bipartisan assessment of whether the declared winner is entitled to take office because that’s what the eligible voters seeking to participate in the election wanted as the result. If we become incapable of that shared assessment of whether or not an election result is valid, what hope is there for our ability to engage in self-government?