As reported in the latest issue of Monitor, the US presidential election raised even more constitutional issues and questions about the US system of elections than many anticipated. Colin Provost and Nadia Hilliard of the UCL Centre for US Politics discuss how the election was administered, and the roles of the judiciary, Electoral College and social media in the process.
The US presidential election of 2020 has been perceived by many observers as one of the most important elections in American history. A highly polarised electorate turned out in record numbers in the middle of a pandemic and for the first time, the incumbent president refused to concede after a clear result, while pushing a steady, yet unsubstantiated series of claims about voter fraud and voting irregularities. Given the highly unusual set of circumstances surrounding this election, it is worth considering how well US institutions performed with respect to the conduct of a free and fair election, and what lessons should be learned for future electoral cycles.
1. States can run elections smoothly.
Although federal laws that are harmonised across the states might seem to make more sense for national elections, the US Constitution allows each state to set its own election laws, as long as they are in compliance with the 1965 Voting Rights Act and other relevant, federal legislation. Keeping that in mind, it is important not to understate the fact that, on average, the states performed well in terms of administration of this election. Despite the pandemic, millions of people were able to vote and perhaps more importantly, a large subset of those people were able to vote by mail, so that they would not have to put their health in jeopardy by waiting in long – and often cramped – queues. Ultimately, those votes were all counted, even if a victor could not be declared until 7 November —five days after election day.
2. US electoral institutions are resilient.
The institutions of election administration proved to be resilient in the face of baseless allegations of voter fraud and voting irregularities: those allegations were many, and continue to be made. In a normal election year, post-election lawsuits are practically non-existent, but in 2020, the Trump campaign filed dozens of lawsuits across several states, nearly all of which have been found to be lacking in merit, while tweeting inaccurate information about the election and its results. Georgia senators David Perdue and Kelly Loeffler suggested that Georgia Secretary of State Brad Raffensberger – the state official in charge of overseeing elections and certifying the results – should resign after not finding evidence of electoral fraud in that state. Additionally, President Trump invited the leadership of the Michigan legislature to the White House, apparently with the goal of getting them to nominate different electors to the Electoral College that formally votes in the new president than those selected by the Michigan Democratic Party. The only legal basis for this occurring is if one believed that Joe Biden did not clearly or lawfully win the state, even though his margin of victory was in excess of 150,000 votes. Finally, a large number of Trump allies in Congress, the media and elsewhere supported these actions, implicitly or explicitly. Despite all these challenges, the votes were counted and certified by all 50 states and the District of Columbia.
3. Do not underestimate the importance of an independent judiciary.
Numerous observers have viewed these events as extremely dangerous for democracy and for the conduct of free and fair elections. However, the effects could have been significantly worse in the absence of an independent judiciary. Many election administration officials in the US are elected officers from one of the two main political parties, so some observers have commented that a more partisan Secretary of State than Brad Raffensberger could have claimed that votes in some counties needed to be thrown out on account of voting irregularities. But the Secretary of State cannot make such a claim without evidence. Just as the Trump campaign has been asked to produce robust evidence in court to show voter fraud where it allegedly occurred, a Secretary of State would have had to do the same, in response to the forthcoming lawsuits that would have challenged the Secretary’s actions. The Trump campaign’s string of losses in court reveals that state and federal judges, including those appointed by President Trump, have not suffered easily claims of fraud where little evidence exists. Possibly the final chapter in this saga took place on Friday, 11 December, when the Supreme Court denied that a group of Republican state attorneys general had standing to claim that millions of votes in Georgia, Michigan, Pennsylvania and Wisconsin should be thrown out. Thus, while there are concerns about the politics of courts, when the president nominates and the Senate confirms federal judges, these rulings have demonstrated that there are basic standards for evidence and judicial interpretation that the Trump campaign lawsuits simply have not met.
4. The founts of disinformation are many.
Even though institutions have been resilient in some important instances this election season, this election has been highly instructive regarding the effects of disinformation. President Trump and his allies have used the social media megaphones of Twitter and Facebook to continually claim that voter fraud is rampant in order to cast doubt on the election’s outcome and ultimately undermine the integrity of the electoral process. The result is that 70% of Republicans in the US haave said they genuinely believe that Joe Biden stole the election from Donald Trump. Such misinformation is extremely dangerous, as it destroys trust in the system of US elections and makes people more cynical about voting overall. It also damages public trust in government officials at all levels, which is particularly dangerous during a pandemic. The truth about the electoral system is that random errors do occur in election administration, but they are largely inconsequential. The broader claims of widespread fraud, dead people voting and voting machines rigged by the ghost of Hugo Chavez are plainly ludicrous.
5. Social media needs to be regulated.
Social media platforms such as Facebook and Twitter have started to regulate online content and either flag or remove posts that are deemed inaccurate or inflammatory. Regulating content on social media platforms is of course fraught with constitutional issues, as it is important not to abridge people’s right to free expression. However, there are reasonable justifications for taking action when it comes to speech that misleads people, resembles hate speech or threatens to incite violence. Of course, these are only the most outlying examples and possibly resemble low-hanging fruit in deciding what can be flagged or even removed. Many people can still post falsehoods on social media and get away with it, perhaps because they have a lower profile than the president, or because they have not incited violence. Deciding how to deal with these soft lies is a thornier, yet important problem. The Forum on Information and Democracy has released a report, with recommendations, on ‘How to Address the Information Chaos’. Some of these recommendations involve judicially binding regulations that enforce transparency requirements. Platforms such as Facebook and Twitter are certain to push back on solutions involving government regulation, but this only puts a greater onus on them to craft an effective, self-governing system, as pressure to regulate disinformation is unlikely to go away.
6. There is little danger of ‘faithless electors’ undermining the popular vote.
Longstanding features of the electoral system fell in the spotlight of public attention this year. The Trump team questioned the legal extent of election officials’ discretion in counting votes, certifying results, and naming electors, and left the major news outlets scrambling to clarify little-known election laws. Despite multiple challenges to the outcome of the popular vote following the election, one possibility was ruled out this summer: in Chialfo v. Washington (2020), the Supreme Court upheld the constitutionality of the ‘faithless elector’ laws that exist in many states. These laws, which require electors to vote for the candidate they have pledged to vote for, exist in 32 states and the District of Columbia. Responding to two challenges from Washington state and Colorado, the court affirmed that the historical precedent of electors remaining faithful to their stated commitments was sufficient to reject the claims of the faithless electors from the 2016 election.
7. The Electoral College still stands…though not without renewed criticism.
Faithless electors are, of course, a product of the Electoral College, the distinct American institution that remains a source of bafflement to foreign observers. Its legitimacy has come into question since the 2000 election handed the presidency to the loser of the popular vote. Two of the past seven elections have undermined the popular vote, including the 2016 election (meaning that Donald Trump has lost the popular vote both times he has run for president). Despite regular challenges to its shape and existence, the Electoral College has endured, partly because of the profound difficulty in amending the constitution. But Americans have often found ways to circumvent the rigidity of the constitution, and we might currently be witnessing a ‘skirting’ of the Electoral College. The National Popular Vote Interstate Compact, an agreement that binds states to honour the results of the national popular vote regardless of the state result, has been signed by 15 states and the District of Columbia. Though this remedy might not address the imbalances that arise from the US’s winner-take-all system (which undermine any ‘small state advantage’ that the Electoral College protects), and might introduce further challenges to citizens’ sense of legitimacy, the impulse towards reform signals wider discontent with existing structures.
8. Existing laws enable voter suppression tactics.
Since the 2013 Supreme Court decision in Shelby v. Holder, key states such as Georgia, Texas and Arizona have fundamentally altered the rules governing access to the vote. This decision, which eliminated the ‘preclearance’ requirement of the Voting Rights Act for states with a history of racially motivated voter suppression, created an opening for states to close polling stations in heavily African American districts, open additional stations in white neighbourhoods, prevent online registration, enact strict voter ID laws, and discourage voting by mail. The struggles witnessed in this year’s elections serve as an acute reminder that the constitutional framework protecting voting access and integrity is damaged.
9. Polarisation deeply undermines democracy.
The widely held belief on the part of Trump supporters that the election was stolen will harden existing polarisation and will undermine Biden’s administration and agenda. It will likely also undermine the willingness of both parties to reimagine themselves into institutions that are capable of working towards a common national project. Many of the challenges identified above are immediate products of decades of intensifying polarisation. Members of Congress who moderate their stances or work across the aisle often find themselves facing primary election challenges from the extremes of their party. Additionally, polarisation has been increasing in the states, as well as in the federal government, making partisan coalitions of states more willing to file lawsuits against federal rules with which they disagree. While such lawsuits can serve as a check on federal power, they can also enhance gridlock and frustrate the policymaking process in the federal government.
Although US institutions performed well on balance, the elections highlighted crucial areas of democratic vulnerability. Increased polarisation makes it more difficult to rein in the aforementioned disinformation threats on social media, and lawmakers will need to address these problems to rectify the legitimacy problem at the heart of the nation.
To mark the 25th anniversary of the Constitution Unit we have launched a special fundraising initiative, encouraging supporters to make donations incorporating the figures 2 and 5. If you value our work, and would like to contribute to its future continuation, please consider making a one-off or regular donation. Contributions are essential to supporting our public-facing work. Find out more on our donations page.
About the authors
Dr Colin Provost is Associate Professor of Public Policy in the UCL Department of Political Science, where he directs the MSc in Public Policy. He is a member of the UCL Centre for U.S. Politics (CUSP) and is an affiliated researcher with the UCL Global Governance Institute.
Dr Nadia Hilliard is a Lecturer of United States Studies (Politics) at UCL’s Institute of the Americas and a member of the UCL Centre for U.S. Politics (CUSP)