By Wilfred Codrington III, Assistant Professor of Law
How American Democracy Survives
EDS. NOTE: As this issue went to press, Joseph R. Biden Jr. had been elected the 46th president of the United States.

This year was always going to be a fascinating one for those interested in election law and U.S. democracy. But now, as the country grapples with the political trifecta of a raging pandemic, a reeling economy, and a racial awakening, it’s clear that this will be an election year for the books.

These problems and others have left many wondering whether American democracy can survive 2020. Although the analysis is complex, the short answer, I believe, is yes. Daunting as they are, the challenges that the country now faces pale in comparison to the fraud, discrimination, and sheer violence that have plagued it historically.

This is not to downplay the significance of the immediate threats posed, but to encourage the many officials committed to safeguarding elections to consider what might be done to mitigate them. Clarity can be hard to come by in the eye of the storm, but reforms in at least three critical areas seem plainly necessary.

Invest in Election System Resilience
Four years after Russia tried to infiltrate U.S. election systems, there remains no hard evidence that it altered the vote count. And yet, the attempts exposed gaping vulnerabilities for future interference by rogue actors.

Compounding this election administration concern were the system breakdowns Americans began to witness at the outset of the COVID-19 pandemic just as the primary elections got underway. Some were new, such as the sharp decrease in the availability of poll workers and the increase in mail ballot rejection rates. Sadly, others, such as the long waiting lines and voting machine malfunctions, have become all too familiar.

These human and electronic elements constitute integral parts of America’s voting apparatus. As revealed by the 2020 primary elections, they are in dire need of investment.

Rethink Court Intervention
In April, the U.S. Supreme Court weighed in on Wisconsin’s primary elections. With the residents under a stay-at-home order, and the board of elections overwhelmed by requests, the mailing of absentee ballots was delayed. A federal district court modified the date by which ballots needed to be received, but the Supreme Court, in a 5-4 opinion, overruled that decision on the day before the primary, when some 12,000 Wisconsinites had yet to receive their ballots.

Unless we begin the process of restoring our democracy, the institutional weaknesses we’ve seen will continue to affect our elections for many years.
But it didn’t stop there. In July, the Court permitted Florida to demand certain payments of ex-felons before restoring their right to vote, undermining a voter-approved amendment to the state constitution and preventing thousands of Floridians from voting. The justices similarly intervened in cases from states including Alabama, Texas, Idaho, and South Carolina to frustrate lower court orders that sought to ease burdens on the franchise during an unprecedented health crisis and provided little to no rationale for their decisions.

The partisan bent in these emergency matters is eerily reminiscent of the 5–4 majority decisions in Bush v. Gore, Shelby County v. Holder, Rucho v. Common Cause, and other landmark election cases. The Court should exercise caution before intervening in these types of matters, as each new ruling can be even more destabilizing than those that preceded it and can pose serious risks to the Court’s institutional credibility.

Bolster Public Faith in Democratic Legitimacy
Were these concerns not enough to sour Americans on civic participation, consider what is coming from the world’s most powerful office: persistent claims of rampant voter fraud, despite the lack of proof; attacks on mail-in voting and the postal service itself when they are needed most; thinly veiled threats to send law enforcement to intimidate voters; and even proposals to unilaterally delay the election, with no legitimate justification or constitutional authority. Such actions have taken a toll on the public’s faith in our system. Lawmakers weighing policies to strengthen voting need to ensure that they help bolster the perception of legitimacy.

When all is said and done, 2020 will inevitably leave a welt on the American democratic system. Nevertheless, we can continue to expect the unexpected—the events and rulings that, for better or for worse, will shape the policies, practices, and doctrine that govern our political contests. Unless we begin the process of restoring our democracy, the institutional weaknesses we’ve seen will continue to affect our elections for many years. Given the great deal of work that lies ahead, that process should begin now.

Wilfred Codrington III is a constitutional law scholar with a focus on constitutional reform, election law, and voting rights. He is also a fellow at the Brennan Center for Justice at NYU School of Law, and he has taught graduate and undergraduate courses in public policy at NYU Wagner School of Public Service. He is the coauthor of the forthcoming book The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union (The New Press, 2021).