Elections: What America can do to rebuild trust in the system

May 23, 2021 by

Leading up to the 2020 vote, about 6 in 10 Americans didn’t trust the outcome to be fair. Rebuilding trust now looks like a high civic priority.

By Peter Grier Staff writer

America’s democratic process has been severely tested in the aftermath of the 2020 presidential election. Former President Donald Trump’s personal push to overturn results in key states revealed vulnerabilities in the nation’s electoral system – including how many important aspects of voting are defended not by laws, but by norms of official behavior.

Nor has the testing ended, despite the Trump campaign’s dozens of losses in election-related lawsuits, the Jan. 6 insurrection at the U.S. Capitol, and Congress’ ultimate certification of President Joe Biden’s Electoral College win. Despite no evidence that Mr. Trump’s loss in Arizona was fraudulent, 16 Republicans in the state Senate voted to subpoena ballots from Maricopa County, for an examination that has been widely criticized as a partisan ploy.

Trump supporters are now seeking Arizona-style “audits” in Georgia and other swing states.

Leading up to the 2020 vote, Americans had mixed feelings about election integrity, with about 6 in 10 saying they did not trust the outcome to be fair. Rebuilding trust now looks like a high civic priority. Next in our series, “Democracy Under Strain.”

Can elections be armored against disgruntled efforts to subvert them? Perhaps more important, can changes to the electoral system regain trust that has been lost on both sides?

Complete trust in election outcomes is likely an impossible goal in today’s polarized political environment. But it is possible to have trustworthy elections, ones that impartial observers can agree are free and fair, experts say.

Election audits could be akin to financial audits – activities that occur regularly, follow established professional procedures, and are largely the same in all 50 states, says Charles Stewart III, a professor of political science at the Massachusetts Institute of Technology.

“If we weren’t in the middle of partisan wrangling over the whole 2020 election, with crazy things happening in Arizona, we could have a reasonable discussion about making things better,” Professor Stewart says.

High levels of distrust

Americans have mixed feelings about elections, according to polls. Overall, they are not confident in their honesty. Heading into the 2020 vote, 59% of Americans said they did not trust the outcome to be fair, according to a Gallup survey.

But trust in specific elections can be higher. Sixty-five percent of Americans are confident in the outcome of the 2020 vote, according to a Morning Consult survey. There is a wide disparity in attitudes between members of the two big U.S. political parties, though: Ninety-two percent of Democrats said the election was free and fair, while only 32% of Republicans agreed.

In general, there are really only two major factors that affect voter trust in an election, says Professor Stewart. The first is whether their candidate won or not. The second is whether they personally had to wait in a long line to cast their ballot.

According to many of the Republican state legislators currently pushing for restrictions and clarification in voting laws around the nation, one of their primary motives is to make GOP voters feel more secure about election results. The irony is that those bills may be unlikely to affect confidence at all.

“There is no evidence passing new laws affects voters’ perceptions of election integrity,” Michael McDonald, a professor at the University of Florida who specializes in American elections, tweeted last month.

Matt York/AP
Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for the Florida-based company Cyber Ninjas on May 6, 2021, at Veterans Memorial Coliseum in Phoenix. The audit, ordered by the Arizona Senate, has the U.S. Department of Justice saying it is concerned about ballot security and potential voter intimidation arising from the unprecedented private recount of the 2020 presidential election results.

A roundtable on restoring trust in the American electoral process hosted by Election Law Journal last month produced a variety of medium- to long-term solutions for the problem.

The United States might take elections out of the hands of partisan entities and use nonpartisan experts to run them, suggested Guy-Uriel Charles, a professor at the Duke University School of Law. He used the analogy of a NASA for elections.

Congress might pass a law requiring the winners of congressional elections to get a majority of the vote in their districts, not just a plurality, said Ned Foley, a professor of election law at the Ohio State University. This could strengthen moderates in both parties and make it more difficult for extremists to squeak into office, Professor Foley said.

The country could also begin the long-term process of strengthening the kind of intermediaries that help with truth-telling and fact-checking in politics, such as the press, the judiciary, and opposition parties, said Rick Hasen, a professor of law and political science at the University of California, Irvine.

There really needs to be a cross-discipline, cross-partisan effort to stop political disinformation, said Professor Hasen. Many of the efforts to pass new voting regulation laws stem from the success that Mr. Trump has had hammering home the false “Big Lie” that the 2020 election was stolen.

“If there’s going to be 30% of the population that doesn’t agree with truth, we’re not going to get out of this situation,” Professor Hasen told the roundtable.

Revisit an 1845 law?

Trust in elections might also be helped by enacting some basic safeguards against flaws in the electoral system exposed in post-election struggles.

One of the biggest such holes was the prospect that legislatures in key swing states would override the popular vote in their states and appoint Electoral College electors themselves, says Richard Pildes, a professor at the New York University School of Law and co-author of “The Law of Democracy: Legal Structure of the Political Process.”

Then-President Trump called on state legislators to do just that. This sheds light on a previously little-known provision in federal election law known as the “failed election” provision, says Professor Pildes.

Dating back to 1845, this provision says that if any state “has failed to make a choice on the day prescribed by law,” state legislatures may step in and do it instead. But the definition of “failed” is vague, and it is possible that partisans could use allegations of voting irregularities to claim failure that necessitates lawmakers to act.

Congress should clarify that this applies only if natural disasters or similar events make it impossible to conduct a proper election, he says. Otherwise, the ongoing Arizona audit could be a template for trouble in 2024, with swing state legislatures drawing up lists of alleged violations, and then leveraging those into investigations and subsequent legislative intervention.

“It remains among the most potentially destabilizing provisions in federal election law,” says Professor Pildes, calling it a “loaded weapon” waiting to be used.

Not just laws, but maturity and norms

Sweeping Democratic-backed election reform bills now before Congress deal largely with voting access and other aspects of the U.S. electoral system, not protection against subversion or explicit rebuilding of trust. Meanwhile, state voting bills such as recently passed legislation in Georgia and Florida in fact weaken local election administration, and thus might be called “democratic backsliding,” says Jennifer McCoy, a political science professor at Georgia State University.

In Georgia, for instance, the new law would allow the GOP-controlled State Election Board to replace election officials in heavily Democratic local counties based on performance or violation of election board rules. The law contains specifics limiting the circumstances in which it can be used, but Professor McCoy says it echoes changes made in other countries such as Venezuela, where elected autocrats gradually gained more and more control over the country’s election machinery.

“This reminds me of that,” says Professor McCoy.

But in the end, it may be more than laws that hold together confidence in elections and democracy itself.

“It’s the expectations, the norms, the willingness to concede,” says Professor Stewart of MIT.

These problems did not start with the 2020 election, and they won’t end by 2024, either. Election administration can’t necessarily constrain bad-faith actors or even just highly disappointed losers, he says.

“We have to be mature enough to recognize there are no perfect elections. … There becomes a margin at which even the best-executed rules and procedures will leave some room for doubt. That’s where the norms of the political process have to kick in,” says Professor Stewart.

Source: Elections: What America can do to rebuild trust in the system – CSMonitor.com

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