Train-Wreck Election?

T he U.S. Election Assistance Commission reports that:

The total number of voters who voted early, absentee or by mail, more than doubled from 24.9 million in 2004 to 57.2 million in 2016, representing an increase from one in five of all ballots cast to two in five of all ballots cast. The number of U.S. citizens voting early more than doubled from nearly 10.2 million early ballots cast in 2004 to 24.1 million early ballots cast in 2016. In 2016, 16 states showed a combined percentage of greater than 50 percent of votes cast early, by mail, or via absentee voting.

COVID concerns with in-person voting will drive those percentages up, and some elements of the system will crack under the load. No balloting system is perfect. Most of the time the imperfections do not alter election results because the errors are not material to the tabulation of an outcome. When an election becomes close, however, those imperfections get magnified and can become the subject of intense legal disputes.

A mailed-in ballot, whether absentee or otherwise, complicates the process of verifying ballot validity as compared to in-person voting. Verifying the validity of mailed-in votes is basically limited to checking name, address, and signature on the return envelope containing a sealed ballot. If, as is now a growing practice among states, mailed-in ballots are widely distributed to registered voters of record, verifying a greatly increased volume of mailed-in ballots could be a significant challenge to local election officials.

The means to maintain the integrity of the 2020 election are, for the most part, in place. Whether they are fully, fairly, and consistently utilized will depend on the performance and integrity of local election officials. If they do the utmost to ensure that votes — valid votes only — are correctly and timely counted, the system can work. Nonetheless, it must be anticipated that widespread use of mailed-in ballots will result in challenges to election administration, some of which may wind up in court.

When courts do become involved, their role should be limited. Litigation is no way to determine who will be president. Elections are meant to be decided by eligible voters casting valid ballots and having them accurately tabulated to establish election results. In these turbulent times, there will never be a greater need for judicial restraint than by judges who hear claims in 2020 election disputes. While every case can present unique legal issues, every judge hearing an election case should simply determine if the rules governing the election were followed and applied evenly. Courts must avoid putting themselves in the position of divining votes to decide election outcomes.

There are both constitutional and statutory reasons for courts to stay the hand that is tempted to overreach in a presidential-election contest. The Supreme Court’s 1892 McPherson v. Blacker decision makes clear that the Constitution squarely places the manner of choosing Electoral College electors in the hands of the state legislatures, not in the courts or state executive offices. The state legislatures have discretion to direct how those electors are chosen, including by what means the popular vote is used to do so, and to establish procedures to govern contested elections. Thus, a state court’s role in an election contest is limited to what the state legislature has prescribed.

Judges in contested presidential-election contests are required to act expeditiously and prohibited from making up new election rules. After the contested 1876 Tilden/Hayes presidential election, Congress passed a statute that requires the resolution of any contest to occur by 35 days after the November election and, in adjudicating any election contest, the application only of rules that were in effect when the voting took place. In other words, no judicial dawdling and no changing a state’s rules after the election has been had. I am sorry to say that this is exactly what the Florida Supreme Court attempted to do — twice — in the 2000 recount. In that court’s defense, the Florida “rules,” such as they were, were no model of clarity, but in extending legislative deadlines for tabulation and certification of election results and attempting to establish post-election standards to govern the validity of some ballots, the Florida court was overreaching and rewriting the rules. In its first decision, the U.S. Supreme Court gave the Florida court an opportunity to fix that itself. The opportunity was ignored. As a practical matter, that necessitated the second U.S. Supreme Court decision to bring the 2000 dispute to a timely end.

If the election results are questioned, it is all participants’ responsibility to demonstrate that the commitment to overcome imperfections in our democracy is far greater than the temptation to exploit its weaknesses and thereby erode its principles.