Election Law in an Age of Distrust

Abstract

Election law now operates in a sea of pervasive distrust. The voting wars have led to continual contestation over substantive voting policies. This distrust now also extends to the institutional side of the election process, with concerns that state legislatures, or state executive officials, or local election administrators, or Congress might seek to corrupt the process for partisan ends.

This essay argues that election law and practices must adapt to the context of this pervasive distrust. Policies and practices that might be fine under normal circumstances, but are likely to feed distrust today, should be re-thought. This short essay, written for a Stanford Law Review Symposium entitled “Safeguarding the Right to Vote,” identifies seven initial measures that policymakers, election administrators, and even voters can take to help fend off distrust about the election process. These changes cannot eliminate perceptions – including groundless ones -- that the process has been rigged, nor the risk that public figures will abuse their power over elections for partisan reasons. But it is essential that we recognize the fact of this pervasive distrust and do what we can to shore up the legitimacy of the election process.