How bad could it get? America’s ugly election

Unhealthy distrust

“How much confidence do you have that the

2020 presidential election will be held fairly?”

United States, % responding, Aug 23rd-25th 2020

Source: YouGov/

The Economist

1

None at all

Only a little

Not sure

Moderate amount

Quite a bit

A great deal

40

30

20

10

0

Republican

Independent

Democrat

By party identification

---

The Economist

September 5th 2020

Briefing

America’s presidential election

17

2

1

ranks of those states which, like Colorado,

mail ballots to every registered voter. 

Mr Trump has been fulminating against

these changes since early  summer: “MIL-

LIONS OF MAIL-IN BALLOTS WILL BE

PRINTED BY FOREIGN COUNTRIES AND

OTHERS. IT WILL BE THE SCANDAL OF

OUR TIMES!”; voting by mail is “a corrupt

disaster” that “will lead to the most COR-

RUPT ELECTION in our Nation’s History”;

and so on. His animus is not restricted to

Twitter; expansions of mail-in voting are

among a huge number of changes to voting

rules related to the covid-19 epidemic cur-

rently being challenged in the courts. As of

August 31st, according to Justin Levitt, a

professor at Loyola Law School, courts in 43

states, Puerto Rico and the District of Co-

lumbia were looking at at least 228 such

cases. When rules change quickly in re-

sponse to an emergency, a certain amount

of legal scrutiny is a good thing. Still, it is

notable that most cases involve Democrats

pressing for broader ballot access and/or

Republicans doing the opposite.

Take Pennsylvania, a swing state that

Mr Trump barely won in 2016 and where

polls currently show him trailing Mr Biden.

Last year it expanded its provisions for vot-

ing in absentia; Mr Trump’s campaign is

challenging some of that expansion. The

campaign has also sued Nevada over a law

that sends an absentee ballot to every regis-

tered voter—something which several oth-

er western states do—increases the num-

ber of polling places, and allows

non-relatives to deliver the ballots of elder-

ly or disabled voters. All those things, Mr

Trump’s legal term argues without evi-

dence, raise the risk of fraud.

Some cases have already risen as far as

the Supreme Court, where the conservative

majority has shown little interest in ex-

panding voter participation, to the infuria-

tion of the liberal minority. When the ma-

jority overturned a decision by a Wisconsin

court to allow a period of grace for late bal-

lots in the state’s primary elections, Justice

Ruth Bader Ginsburg wrote that “It boggles

the mind” that the court would risk “mas-

sive disenfranchisement” by treating vot-

ing during a pandemic as no different from

“an ordinary election”. 

In July Justice Sonia Sotomayor excori-

ated the majority for allowing Florida to

bar around 800,000 released felons from

the polls. In 2018 Florida’s voters passed a

constitutional amendment allowing all

felons except murderers and sex offenders

to vote as soon as they had completed their

sentence. In response the Republican-con-

trolled legislature defined the completion

of a sentence to include the payment of all

fines, fees and penalties. The Supreme

Court was not persuaded by arguments

suggesting that this amounted to a poll tax.

By ratifying a “pay-to-vote scheme” under

which ex-offenders must pay all fines be-

fore punching a ballot, Justice Sotomayor

wrote, the Supreme Court “continues a

trend of condoning disfranchisement”.

Because of the limited time available,

many of these election questions are mak-

ing their way to the court as emergency ap-

plications; in such cases the justices hand

down verdicts with little or no explanation

after only partial briefing, no live hearing

and quick deliberation, and reveal their

votes only if they so choose. Dale Ho, the di-

rector of the voting-rights project at the

American Civil Liberties Union, argues

that the justices “need to explain their rea-

soning more” in cases about electoral law,

so as to provide a guide for lower courts and

the next round of litigants. Rick Pildes, a

law professor at New York University, says

the justices should strive for “significant

consensus” in issuing decisions on voting

rules if the election results are to be “broad-

ly accepted as legitimate”.