The 2016 U.S. Voting Wars: From Bad to Worse

Abstract

If the “voting wars” which have broken out across the post-2000 election landscape in the United States could be characterized as kind of trench warfare, the 2016 election saw a major escalation in weaponry, from the irresponsible rhetoric of a candidate who became commander-in-chief, to foreign interference and a flood of social media-driven propaganda, to troubling machine breakdowns and human error in election administration. Together the escalation threatens to undermine the public’s confidence in the fairness of the U.S. election process and ultimately American democracy itself. We live in dangerous times, which could get worse, and it is not easy to conceive of simple solutions for de-escalation and bolstering of legitimacy, especially given rapid technological change which has interfered with mediating and stabilizing democratic institutions.

This Article provides an overview of the legal and political integrity issues in the 2016 elections. It begins by describing the now “normal” voting wars between the hyperpolarized parties, a series of lawsuits aimed at shaping the rules for the registration of voters, the conduct of voting, and the counting of ballots. Restrictive voting laws have increased in number and severity in many states with Republican legislatures, and the judiciary itself often divides along partisan lines in determining the controversial laws’ legality. So far, the pace of litigation has remained at more than double the pre-2000 rate, and litigation in the 2016 election period is up 23 percent compared to the 2012 election period.

The Article then turns to the troubling escalation in the wars, from then-candidate Donald Trump’s unsubstantiated claims of fraud and election rigging, to Russian (and other) meddling in American elections and the rise of the “fake news” issue, to problems with vote counting machinery and election administration revealed by Green Party candidate Jill Stein’s self-serving recount efforts and further hyped through conspiracy theories. It concludes by considering the role that governmental and non-governmental institutions can play in attempting to protect American election administration from internal and external threats and to restore confidence in American elections.

Keywords: voting wars, fake news, political polarization, election administration, cyber-hacking