10 months ago
Can the United States have a free and fair election this year? And if it does, will voters actually believe it was fair? Thanks in part to Donald Trump’s continued outsized and polarizing role in American politics, we can take nothing for granted. But after 30 years of studying and working to strengthen U.S. election law, I am actually more optimistic than I was in 2020 about the prospects for a mostly fair vote count in November.
Last election, I warned of an “election meltdown” and a country that was not prepared for a litany of ills — foreign interference, spikes in misinformation, attempts at election subversion and more. This time around, however, I have a different outlook: Those threats are still there but this time we are aware and we are better prepared.
What we should be more worried about is that losers won’t accept the results as legitimate, a sentiment that exploded only after election day in 2020, when Trump's refusal of an orderly transition of power led to a violent assault on the Capitol. In 2024, however, election denialism is at the forefront, before most voters have even cast their ballots. This supercharged distrust could lead to further violence and instability and help cement the kind of corrosive election denialism that does lasting damage to our democracy.
Holding credible elections in the United States has always had its challenges, but it’s gotten even harder since 2020. Most other advanced democracies in the world do not go through what the United States does each election season: legislatures and administrators changing voting rules to make voting harder or easier, sometimes in an effort to gain partisan advantage; a cycle of litigation over those rules, often reaching the highest levels of the judiciary; and incendiary rhetoric about voter fraud, vote suppression and rigged elections followed by stories of scattered election snafus that are often portrayed as sinister manipulation rather than more accurately as illustrations of incompetence. Until we amend the Constitution to provide a real right to vote, we can expect this quadrennial cycle of angst, doubt and uncertainty to continue.
Trump supercharged and magnified these American voting pathologies. The 2020 election took place during the Covid pandemic before the emergence of vaccines, creating serious challenges to holding a fair election without exposing people to disease. New litigation centered on how to run an election amid a health crisis. The pandemic increased the cost of running elections dramatically but the federal government did not come up with adequate funding to cover the increased costs, leading to private philanthropy underwriting election administration. Covid led many people to vote by mail to avoid viral exposure, but Republicans were less likely to shift to mail voting than Democrats after Trump incessantly and without merit claimed the ballots would be vectors of fraud. The slower count of mail-in ballots in some states like Pennsylvania led to shifts in reported election results from Trump to Biden, further feeding the false fraud narrative.
Trump encouraged his voters to doubt the election’s integrity, which ultimately led to a deadly insurrection on Jan. 6, 2021 — but he’s yet to be held accountable. He’s beat conviction after impeachment by the Senate, could well stop the clock through appeals on criminal prosecution before the election, and may beat back attempts to disqualify him at the Supreme Court. Odds are that he’ll be back on the ballot in November 2024 running against Joe Biden for president.
The current backdrop for the 2024 election may seem bleak: Many of those who helped to ensure a fair election and a peaceful transition of power in 2020 have been silenced, replaced or intimidated. Researchers who studied and reported on disinformation have been unfairly attacked as engaging in election interference in collusion with the government. Conservative states have passed new laws barring the use of private funds to help support election administration, derisively calling such money “Zuckerbucks” after Mark Zuckerberg and Priscilla Chan’s foundation provided hundreds of millions in crucial 2020 funding. Lawsuits and congressional hearings by the Orwellian-named House committee on the “weaponization of government” may be deterring some government agencies from reporting election disinformation and foreign interference to social media companies and others. The social media platforms that had deplatformed Trump after he encouraged the violence at the Capitol have restored his accounts.
Some Republican officials have been booted out of the party or out of power, including Aaron Van Langevelde, the Michigan state member of the board of canvassers who confirmed Biden’s 2020 victory in the state, and Republican members of the U.S. House, including Liz Cheney and Adam Kinzinger, who lost primaries or chose not to run for reelection. Attrition rates among election officials, who have faced relentless threats and intimidation while earning relatively low pay, are substantial.
And yet there is reason for hope.
Efforts have been made to ensure the 2024 election will be mostly fair. Congress amended the set of rules used for its counting of Electoral College votes to close off some of the shenanigans with alternative slates of electors that Trump and his allies tried in 2020. The Supreme Court last year in Moore v. Harper rejected an extreme theory that would have empowered legislatures to overcome even their own state constitutions and state courts in constricting voting rights. Election deniers who ran for chief election officer in swing states lost in 2022. People are now hypervigilant about attempts to subvert election results and are on guard against new forms of manipulation. Trump, no longer in government, has fewer tools to try to manipulate results. The 2022 elections, without Trump on the ballot, went off smoothly. (Of course, there is much more that can and should be done in law, politics, media and tech to assure a fair and safe election, as a group of us explained in a recently issued report, “24 for ’24.”)
But things look less promising when it comes to voter confidence in the fairness of election results — on both sides of the aisle.
Trump is already laying the seeds for claiming voter fraud in the 2024 elections should he lose, positing without evidence that Democrats are allowing illegal immigration into the United States so that these new arrivals can vote for Biden in the 2024 elections. (Noncitizens are ineligible to vote in U.S. presidential elections.) One of the mistakes I made in the run-up to the 2020 elections was believing that if the U.S. could pull off a free and fair election, it would take the oxygen out of false and outlandish claims of voter fraud. In fact, Trump has been able to manufacture doubt out of absolutely nothing; fraud claims untethered to reality still captivate millions of people looking for an excuse as to why their adored candidate may have lost. The upshot, of course, was an insurrection on Jan. 6. We should be deeply concerned about a sequel, even if Trump is not in the Oval Office this time.
And what about a Trump victory, which today seems like a real possibility despite Trump’s multiple impeachments, multiple indictments and everything else? People on the left will have a hard time swallowing a Trump win, and even if there is no election-related violence, there will be enough attempts in the election season at foreign interference and the spreading of disinformation that people will believe a Trump triumph to be fundamentally unfair and undemocratic. This will be especially true is Trump loses badly in the popular vote, but manages, once again, to eke out an Electoral College victory. If and when Trump is back in office, it is easy to imagine street protests turning violent, especially if a newly installed Trump tries to use the Insurrection Act and supportive military and police to quell city protests.
In the end, democracy stands on twin pillars. The first is the ability to run a free and fair election. It’s a herculean task made even harder by our decentralized, partisan system in our polarized times. That pillar, despite unprecedented challenges, seems solid going into 2024.
The second pillar is the public’s confidence in the fairness of the election. Without “loser’s consent” — when those on the losing end of an election accept the results as fairly determined — democracy falters. Trump has succeeded in undermining the foundation of that second pillar for everyone, whether or not he’s victorious as a candidate in 2024.
English (US)