Novel Threats is a series of brief conversations with fellows and affiliates of the Reiss Center on Law and Security exploring the intersection of the coronavirus pandemic and key national security challenges.
Richard Pildes on Coronavirus and Protecting American Democracy
September 16, 2020
Richard H. Pildes is one of the nation’s leading experts on the law of democracy and of American government. His acclaimed casebook, The Law of Democracy: Legal Structure of the Political Process, created an entirely new field of study in law schools. He edited The Future of the Voting Rights Act and authored another casebook, When Elections Go Bad, on the resolution of disputed elections. Professor Pildes has been elected to the American Academy of Arts and Sciences and the American Law Institute, and has been honored as a Carnegie Scholar and a Guggenheim Fellow. In addition to his scholarship, Professor Pildes plays an active role litigating in these areas, including before the United States Supreme Court. He will be a CNN Election Analyst this fall and served as NBC’s Legal Analyst during the 2000 disputed Bush v. Gore election. Full bio
The ongoing COVID-19 pandemic poses a number of acute challenges for administering presidential and other down-ballot races in November. In light of the pandemic, what’s the most important message voters need to hear now for the fall election?
I can answer that in three words: vote in person. We can “flatten the in-person voting curve” through extensive use of early voting, as well as voting on Election Day. But voting in person, for those not in unusually high-risk categories, is particularly important for anyone in a potential battleground state. I know that will sound surprising to many, given the persistent health challenges COVID-19 poses and after months of fighting over expanding absentee-voting options. Yet that’s the most important action voters can take to forestall the most dangerous scenarios concerning this election.
First, leading public health experts are reassuring about the safety of in-person voting. Voters are in the polling booth for a few minutes. They are facing forward. They are not talking to each other. The risk of transmission from exposure this short is so low that public-health officials do not even do contact tracing of someone who has been within 6 feet of an infected person unless they have been exposed for at least 15 minutes. With expanded options for early voting in many states, in-person voting can be spread out over weeks. And given the number of people who will be voting absentee, that further will reduce the volume of in-person voting on Election Day.
In addition, election officials have put in place numerous health protocols that the CDC has recommended. In the one aspect of the process where people might spend more than a brief time—waiting in line to vote—those lines are going to be outdoors. Social distance will be required in these lines, as well as at the polling booths. In some places, much larger venues for voting will be used, as was done already in some primaries this summer. Many locations will have plexiglass dividers between voters and the officials who check them in. Masks will be available (though not required) for those who forget theirs. Surfaces will be constantly disinfected. That’s why Dr. Fauci and Ezekiel Emanuel, Chair of the Department of Medical Ethics and Health Policy at the University of Pennsylvania, along with two of the country’s top public health academics with whom I have written on this issue, all say that in-person voting will be safe this fall.
Moreover, as many people become more familiar with wearing masks and socially distancing for all sorts of activities than they were at the time of the late spring and summer primaries, I think more people are going to feel comfortable voting in person. As one good article put it recently, “if you can grocery shop in person, you can vote in person.”
And here is why increasing the level of in-person voting is so important: we know that we will have unusually high levels of absentee voting. But once President Trump attacked mail-in voting, the way one votes became an expression of political identity. Seventy-five percent of Republicans say they will vote in person, no doubt as a sign of solidarity with the President. For Democrats, it’s the opposite: in the same poll, nearly 75 percent are “very” or “somewhat likely” to vote by mail, surely in part because Democrats and their allies led the charge to expand absentee voting, as well as the fact that Democrats express greater concern about COVID-19.
If we end up in a close election with millions of absentee ballots in key states that cannot be counted until well after Election Night, the situation could easily become explosive, given our current political climate. It’s not difficult to envision the following scenario then unfolding: with Republicans disproportionately voting in person, President Trump will be strongest on Election Night, when those vote totals are released. With Democrats instead disproportionately choosing the absentee route, former Vice President Biden might begin to overtake Trump slowly, as those ballots being to get counted in the days after the election. And if we get to that point, the election process could rapidly spin out of control.
President Trump will likely proclaim that the vote is being stolen; cable and social media allies will quickly amplify that message; efforts to stop the counting of absentee ballots will erupt in election offices and courts; and the scenarios only get worse from there. Whichever side of the country loses is unlikely to accept the outcome as legitimate—which wouldn’t just mean people in the streets, but would surely lead to an effort to paralyze the government over the next four years.
All of that is true even if all the logistical aspects of the absentee process go smoothly. But it’s reasonable to expect some problems will arise, and since Biden supporters will be a disproportionate share of absentee voters, they will be the ones bearing the greater share of the burden from these problems. In recent primaries, we have seen absentee ballots rejected at rates ranging from 4% to 20%. If the election is close, a huge percentage of the votes are cast absentee, and 10% of those ballots are rejected (the ballots arrive too late or do not comply with various absentee-ballot requirements), it is easy to foresee Biden supporters believing the election is being stolen.
The most effective way voters can minimize all these problems, at this point in the election cycle, is to vote in person—which includes early voting. The more people who vote in person, the lower the risk that we will end up heading down one of the many dangerous paths we know are out there. The health of American democracy could depend on it.
You mentioned that “it’s reasonable to expect some problems will arise” with absentee voting this fall this fall—what are some of those issues?
I do not want to create exaggerated concerns, but we have to be realistic. We are going to have significantly higher levels of absentee voting, no matter what, than in a normal election. But we are moving to that world virtually overnight, and problems that would be unlikely to affect the outcome with much lower absentee-voting rates will be, potentially, more consequential.
I’ve already noted the significant rate at which absentee ballots get rejected. Voters are not always aware of absentee-voting requirements or make mistakes in complying with them. First-time absentee voters make these mistakes at higher rates, and most absentee voters this fall will indeed be voting absentee for the first time.
Concerns also exist with how long it might take the postal system to get ballots out to people who request them and, more importantly, deliver those ballots on time to election officials from those absentee voters who return their ballots by mail (rather than in drop boxes or in person to election officials). We saw problems in individual primaries along these lines. But in the fall, nearly all states will face unprecedented levels of absentee voting at the same time, and for the presidential election — which is always our highest turnout election. Moreover, if problems with absentees arise, you can be sure the campaigns will pursue every avenue of relief, including turning to the courts. That of course will become another source of delay in knowing who has won the election.
In raising these and other potential issues, I feel it’s important to strike the right balance. We want to identify problems in advance, both to fix them if possible and to prepare voters for what might happen. But we also know that some voters become alienated from the entire process and decide not to bother participating if they distrust a process that seems a chaotic mess.
You have noted that the 2020 election is viewed as “existential” and we face a potentially scary situation if the presidential election is close or we end up in another Bush v. Gore-type vote counting case. How do you think about the challenges to our democratic institutions in such a potential case?
Our political moment is so much more dangerous than at the time of the 2000 Bush v. Gore election. That earlier disputed election will look quaint if a major dispute arises this time, for the following reasons.
First, unlike in 2000, this year many people on both sides believe the upcoming election is “existential,” in the sense that if the other side wins, the country will never be the same. In 2000, nearly half of people said “things would remain pretty much the same” regardless of who won; today, only 16% of people say that. In hindsight, it might have turned out that the result in 2000 did matter greatly, but that’s not how people saw it during the slightly more than one month it took to resolve that election.
One of the core aspects of a healthy democratic system is people’s willingness to accept that their side will win sometimes, lose others and that rotation in office between competing parties and leaders is tolerable because battles can be re-fought another day. But when people believe that everything is at stake—that losing today will create irreversible, immense damage—they become much more willing to do whatever it takes to ensure their side prevails.
Second, on top of that, and also unlike in 2000, 79% of Democrats and 71% of Republicans currently believe it is very or somewhat likely the other side will “cheat” to win the election. That means on both sides, many people are primed already—when voting has barely started—to believe their candidate can lose only if the election is rigged. That means they will see as sinister any problems that emerge in the election process—or even features of the process that are to be expected, such as delays in counting absentees—regardless of the actual reason for those problems.
Third, in 2000, social media had minimal presence. Today, we can be certain that social media, with or without cable television’s assistance, will unleash misinformation, rumors, conspiracy tales and spin even accurate information in ways that will dramatically inflame the situation. The charges of an election being stolen will also be echoed this time by major political figures, unlike in 2000.
Finally, our hyperpolarized political culture, as I’ve called it, has pulled nearly all public institutions into its voracious maw. That includes the courts, both state and federal, which many more Americans now perceive as partisan actors than in 2000. The ability of the courts to provide a resolution that would be broadly accepted as legitimate has diminished.
Thus, the challenges to our institutions if we end up in a close election whose legitimacy is in dispute will be immense. We will need institutions broadly accepted as applying the law in honest, even-handed ways. One new structure that’s been proposed, which I support, is the creation of an independent body of widely respected election-law experts, who would issue non-binding judgments about disputed legal issues that might arise—remember, many of these issues will have to be resolved initially by secretaries of state and other local election officials, many of whom are themselves elected. But whether it’s possible to put together such a body whose judgments would be widely accepted as legitimate, which would put pressure on election officials to apply the law consistent with those judgments, is questionable. If courts are going to play a major role, their only shot at having their decisions widely accepted as legitimate is if they can issue decisions that are unanimous or nearly so.
If the 2020 presidential election does increase absentee voting across the country, do you think that will be a lasting legacy of the coronavirus? Or will elections revert back to the more traditional model of voting in person post-pandemic? Are there other facets of voting in the time of COVID-19 that you think will become fixtures in the future?
This is an intriguing question. I think we will see increased rates of absentee voting, but I think most voters are going to continue to want to vote in person. For some, that will be because they don’t trust the absentee process. For others, it will because they wait until it’s too late to request an absentee and get it back. But I also think many Americans like the civic ritual of voting in person; they like to take their kids with them, which data suggests makes it more likely those children will vote as adults; and they like being surrounded by others who are also voting. I think there’s resistance to turning voting into an isolated, atomistic act. Maybe a younger generation, though, practiced in spending vast times alone staring at screens to shop, stream movies, tweet or blog, will not be troubled by voting alone.
Either way, I do think some of our voting practices will be changed in light of developments this year. For in-person voting, we will probably see greater use of vote centers to replace more traditional, smaller sites; in vote centers, you can vote without regard to where you live in the jurisdiction, and you will get the ballot that’s appropriate for your address. For absentee voting, the scrutiny the process is coming under will lead to some lasting changes—for example, I think more places will give voters an opportunity to cure any defects in their absentee ballot envelope than had been true before this year. The ability to vote absentee without a specific justification, which has been expanded in many places this year, might also endure. But I don’t see in-person voting losing its central role anytime soon—perhaps because I hope that’s not true.