Jason Willick has a new Washington Post column addressing an issue that I’ve pursued in prior scholarship and other writings–and also raised recently on ELB in connection with a New York Times story.

The issue is what kind of improprieties do, and do not, qualify for undermining the validity of an election. In my work on this work, I’ve endeavored to draw a sharp distinction between improprieties that negate voter choice (and therefore do undermine the validity of the election, because they prevent the exercise of collective self-government by the eligible voters wanting to participate in making an electoral choice) and improprieties that influence voter choice (which, while reprehensible, do not undermine the validity of the election, because they don’t prevent voters from participating and making their own judgments about how to cast their ballots).

Willick’s column pursues this issue in the context of the prosecution’s summation in the Trump “hush money” trial. He writes that the prosecution wrongly argued that Trump delegitimated his 2016 victory by concealing from voters information that they should have received. Whether or not the prosecution went so far as to say that the result of the 2016 election was invalid because of Trump’s alleged misconduct, I agree with Willick that–according to the sharp dichotomy that I draw–Trump’s “suppression” of “damaging allegations of extramarital liaisons” falls into the second category concerning misbehavior that influences voter choice and thus does not undermine the validity of the election.

I wish, however, that Willick’s analysis of this issue was as categorical in its approach as my proposed bright-line distinction endeavors to be. Instead, Willick speaks of a “continuum” of election denialism and asserts that the New York prosecutors engaged in a “soft form of election denial.” I worry that this way of talking about the topic potentially muddies a distinction that should be as crystal-clear as possible.

Like Willick, I believe that politicians can be punished for campaign finance violations, but those misdeeds do not negate voter choice and thus do not undermine an election’s validity. Similarly, disinformation campaigns–like the infamous Swiftboating of John Kerry–may be actionable under civil or even criminal defamation laws under New York Times v. Sullivan, 376 U.S. 254 (1964), and Garrison v Louisiana, 379 U.S. 64 (1964). But as deplorable as deliberate smears about a candidate may be, they too do not negate voter choice and thus do not undermine an election’s validity.

I hope that during this campaign the media can maintain this distinction, so that the public understands what’s an appropriate basis for claiming an election result is invalid–and what is not.