Election law expert: “Disturbingly high” risks to legitimate presidential election

BUFFALO, N.Y. – While subject to fierce partisanship, presidential elections in the United States have widely been accepted by the public as fair and lawful.

This November, however, “the risks to democratic legitimacy are disturbingly high,” writes University at Buffalo election law expert James A. Gardner.

In a paper for a University of Chicago Law Review symposium, Gardner discusses the factors guiding his viewpoint, including:

• The possibility of a “severely depressed turnout” due to the COVID-19 pandemic.
• The potential for voter suppression.
• President Donald Trump’s efforts to fuel distrust of the electoral process.
• Authoritarian-like tactics by the Republican Party.
• A lack of consensus on how to settle contested elections.

Gardner is a SUNY Distinguished Professor and the Bridget and Thomas Black Professor in the UB School of Law.

COVID-19 effect

“Although the actual effect on voter turnout in November is difficult to predict, experience this spring with holding primary elections during a public health emergency suggests that the general election is likely to be held under conditions that place severe downward pressure on turnout,” Gardner writes.

“Voters may abstain from in-person voting for fear of contracting or spreading the disease,” he explains. “Administrative efforts to provide alternatives to in-person voting, undertaken with short notice and little experience or preparation, may be disorganized and ineffective. State officials may, under cover of the emergency, seize the opportunity to alter electoral rules in ways that deliberately and selectively inhibit turnout.”

Possibility for voter suppression

Low voter turnout in the United States is nothing new. But it could be particularly problematic for the electoral process if nonvoting is widespread and involuntary, with obstacles to voting systematically directed at specific groups of people.

Examples of such obstacles include partisan gerrymandering, electoral rules set by ruling parties in individual states, and the uneven distribution of COVID-19 throughout the nation or within individual states, he says.

Gardner writes that, “there appears to be considerable fear, especially among minorities and Democrats, that Republicans, invoking the pandemic for cover, will use their power in states they control to suppress turnout selectively.”

“The president himself has stoked such fears,” Gardner writes. “In May, he explicitly threatened to withhold federal funding from Michigan and Nevada in retaliation for decisions in those states to expand the availability of voting by mail.”

Trump foments distrust

Gardner writes that “the incumbent president of the United States has from the day of his inauguration worked steadily to foment the kind of distrust of electoral processes that could, in the right circumstances, mature into full-blown regime illegitimacy.”

He adds: “In-person voting, Mr. Trump has long maintained, is riddled with fraud. He now adds that absentee voting also is fraudulent, evidently making all voting fraudulent and unreliable.”

Growing illiberalism within the GOP

Gardner writes that, “The growing authoritarianism and illiberalism of the Republican Party, moreover, suggest a deeply unfortunate but seemingly ready willingness to sacrifice regime legitimacy in favor of retention of power, a strategy now employed widely by authoritarian regimes around the globe.”

“Recent actions of Republican-controlled legislatures in Wisconsin and North Carolina, for example, to strip newly-elected, incoming Democratic governors of constitutional and statutory authority suggest an underlying belief that the exercise anywhere in the United States of official power by Democrats is itself illegitimate.”

No law to settle disputed election

Gardner writes “the remedies most commonly available under election law for these kinds of problems are few, poor, and disfavored.”

He adds: “If errors occur in a single state in a close election, as was notoriously the case with Florida in 2000, then the electoral rules of that state may appear to determine the outcome for the entire nation, undermining the appearance of fairness, impartiality, and inclusivity.”