By Samuel Issacharoff - NYU
Abstract.
The gravest threat to our democracy does not come from obstacles to voting—indeed, despite state-level efforts at retrenchment, voting remains far easier across the country than in 2008 when the United States first elected a Black president. Rather, the greatest concern is the effort to solidify party control of election mechanisms, turning the ordinary task of tabulating election results into an opportunity for partisan mischief.Under the strains of 2020, despite COVID-19 and its many challenges, the system held up remarkably well. But the stability of these structures depends on a long-haul bipartisan commitment to repeat engagements, a commitment anathema to the demands of populist immediacy. These deservedly obscure local agencies and officials were targeted by President Trump as a vulnerability in the process of certifying election results and one that could be manipulated through partisan appeals.
This Essay will examine the fragility of election structures that depend on bipartisan agreement to certain ground rules. I argue that democracies depend on two critical features: (1) a commitment to repeat play; and (2) institutional guardrails such that the majority (or even plurality) will win according to preset rules, but not win too much. The populist fervor of the times threatens both. This Essay explores how close to the abyss the election system came in 2020, and how delicate the balance remains going forward.
Introduction
The assumption that elections should determine the presidency is so ingrained in the American political psyche that the United States held contested elections even during the Civil War and World War II. This is decidedly not the norm in other democracies—Churchill, for example, faced no new parliamentary elections during the War. But in the United States, elections historically have gone forward, with the ordinary forms of election administration determining the winner and, most critically, the ordinary forms of rotation in office playing out, even in fraught election periods.
Until January 6.
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