#ELB20th: Election Law in the Age of Trump

A few months ago, Rick and others celebrated the 20th anniversary of this blog with a series of guest posts. Serving as dean of a law school doesn’t usually allow me to keep up with day-to-day developments in the field as I once did, so I wasn’t able to write something at the time. But finishing up three weeks in the ELB driver’s seat gives me an opportunity to offer some reflections on where we’ve been, where we are, and where we might be going.

The first observation is that Donald J. Trump continues to dominate daily news in the field. Over the past three weeks , 70 ELB posts have mentioned Trump’s name, an average of over three each day. By way of comparison, I count only 13 that mention Biden and just 8 that mention DeSantis. So like it or not, we in the field of election law are still living in the age of Trump, more than two and one-half years after he reluctantly relinquished the presidency.

Now of course, deciding what news is worth including on the blog involves subjective judgment. Like others who started out studying election law, my interests have gravitated toward structural weaknesses in American democracy over the years. That includes political polarization, persistent racial divisions, and rising economic inequality, as well as the vulnerability of electoral institutions to partisan manipulation. I’m also worried by the increasing receptivity toward politically motivated violence, most graphically illustrated by the events of January 6, 2021.

It bears emphasis that much of the current coverage of Trump is involuntary, on his part. Over the past few weeks and months, we’ve seen numerous charges and convictions for people associated with the attack on the Capitol during the counting of electoral votes. And at times, it seems as though the walls are closing in on Trump himself. The pending cases against him — not to mention a potential new federal indictment over his role in January 6 and another potential criminal case in Georgia — will make for a busy campaign/courtroom calendar in 2024. As the recent coverage of Trump’s legal expenses reveals, it’s becoming difficult to distinguish his attempt to regain the presidency from his attempt to fight criminal charges against him.

The proliferation of pending and potential criminal charges against a former/aspiring President present an unprecedented challenge for American democracy. That’s all the more true in light of the growing body of evidence that all the criminal and civil cases against him aren’t hurting his standing with the Republican primary electorate and may actually be helping.

Amidst all this, it’s easy to lose sight of the considerable progress that has been made over the past twenty years. That’s particularly true in the area of election administration, which has been a main focus of my academic career. I became a law professor in 2003, just a few months after Rick started this blog. Hard as it may be to believe now, not many scholars were writing about the “nuts and bolts” of elections — things like voting technology, voter registration, and voter ID — at the time. Bush v. Gore was still a new decision, and the Help America Vote Act had just been enacted into law. Back then, it was mostly left-leaning Democrats who were worried that electronic voting machines would steal their votes. (How things have changed.)

When it comes to election administration, there is much to celebrate in what’s happened over the past two decades. We’ve moved to more reliable voting technology and statewide voter registration lists. The professionalization of election officials has increased dramatically over the intervening years. A testament to that fact is the miracle of the 2020 election, as Nate Persily and Charles Stewart have called it, when the country successfully managed a massive shift toward remote voting in the midst of a global pandemic and record turnout. Our judicial system also held up well to the challenge that the 2020 election posed. Judges across the ideological spectrum — including both Republican and Democratic appointees — rejecting the specious legal cases brought by Trump’s allies (traced in my contribution to this book on January 6). Some of those lawyers are now facing the consequences of their actions.

The tragedy of the 2020 election, borrowing again from Persily and Stewart, is that so many Americans believed — and continue to believe — that the election was stolen. Not only has there been a massive loss of trust in our election system, but we’ve also seen escalating threats toward the people responsible for running our elections. That’s led many of these dedicated public servants to conclude that it’s just not worth it, leaving their jobs in large numbers. This too is a tragedy, especially given the progress is professionalizing election administration over the past twenty years.

Despite all this, I’m hopeful about the future of election law and, more broadly, of our democracy. Although we’ve lost some great election officials, public awareness of the serious challenges that our system faces has increased dramatically. I’m talking not only about the risk of election subversion — the tag of so many recent ELB posts — but also about gerrymandering, money in politics, and the institutions responsible for running elections. The election law community, including both academics and practitioners, has never been more robust. I’m not sure of the solutions to the enormous challenges we face. But the diversity of new voices in the field increases my confidence that we’ll find a way through them together.

I’ll close this post, and my stint as guest blogger, with a big “thank you” to everyone else in the election law community. Thanks especially to Rick for keeping this blog going over the past twenty years. And to all of you for caring enough about our democracy to keep reading and responding.

Share this: