Low voter turnout could threaten legitimacy of presidential election

The increasing likelihood of a “severely depressed turnout” for this fall’s crucial presidential election threatens the democratic legitimacy of the electoral process, according to a UB faculty member considered one of the nation’s top scholars in election law.

“Due to the present pandemic, it seems increasingly likely that the 2020 general election in November will be held under conditions of unprecedented downward pressure on voter turnout,” says James A. Gardner, SUNY Distinguished Professor and Bridget and Thomas Black Professor in the School of Law.

“The possibility of a severely depressed turnout for a highly consequential presidential election raises troubling questions of democratic legitimacy.”

Voter turnout in American elections has historically been poor, Gardner says, and under normal conditions, the low voter turnout is not considered a threat to the legitimacy of the election.

The coming election under the COVID-19 pandemic is different, he says.

People choosing not to vote of their own accord is one thing. But if people don’t vote because they can’t, if those obstacles are widespread and if those obstacles seem directed at specific groups, then the threat to that election’s democratic legitimacy escalates significantly, Gardner says.

“Such concerns cast doubt on the continuing validity of popular consent to the entirety of the existing governmental regime,” he writes in “Democratic Legitimacy Under Conditions of Severely Depressed Voter Turnout,” a piece for an upcoming University of Chicago Law Review Online symposium.

Gardner calls the 2020 election possibly one of the most significant in the nation’s history. At least at this point, it’s expected to be held during an unprecedented pandemic. That means the threats to legitimacy will be high.

“Although the actual effect on voter turnout in November is difficult to predict,” he writes, “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 in turnout.”

Gardner says several factors could cause a widespread, involuntary and systematic low turnout in this November’s presidential election.

“Voters may abstain from in-person voting for fear of contracting or spreading the disease,” he says. “Administrative efforts to provide alternatives to in-person voting, undertaken with short notice and little experience or preparation, may be disorganized and ineffective.”

Gardner notes that the risk that the democratic legitimacy of this fall’s presidential election will be challenged is especially high because minorities and Democrats fear Republicans will try to use the pandemic as an excuse to control voter turnout, he says.

“The president himself has stoked such fears,” Gardner says. “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.”

Gardner sees dire consequences if low voter turnout threatens the election’s democratic legitimacy. The Supreme Court’s decision in Bush v. Gore has significantly increased public expectations about “procedural purity of routine electoral processes.”

“Finally, 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,” Gardner says, noting the president has long maintained in-person voting is filled with fraud.

“He now adds that absentee voting also is fraudulent, evidently making all voting fraudulent and unreliable.

“The risks posed by the coming election to democratic legitimacy are thus high. If turnout is in fact unusually low, certainly the results will have to be utterly decisive to forestall any public doubts.”