Protecting Our Electoral Institutions

The near-crisis that American government went through between Election Day and Inauguration Day should have sobered up discussions of campaign and election law. To quote William Baude, “After the 2020 presidential election, the peaceful transfer of power can no longer be taken for granted.” Quarrel if you wish about how many weeks there should be of early voting, whether lockboxes should be continuously supervised, and so on. “But all of those ballots are wasted paper unless the winner takes power and the loser does not.”

That’s from an excellent new California Law Review article by Baude, a law professor at the University of Chicago. (His paper is part of a symposium reacting to a lecture by law professor Pamela Karlan; see also this Volokh Conspiracy post summary.) His point is simple and timely: “We should not let long-term imperfections in our democratic structure distract us from more immediate threats.”

To recapitulate—not that anyone reading this does not know—a losing presidential candidate refused to acknowledge his loss, and he enlisted supporters in a vain effort to overturn that result through both regular and irregular channels. He and his supporters put various actors—state legislatures and election officials, Congress, federal judges, the vice president—under intense pressure to stray from their legally and constitutionally prescribed roles, and in many cases to breach their duties. In most cases they resisted that pressure, and a constitutional crisis was averted. But will the lines hold next time?

This is serious stuff. As we know, one cannot obtain from much of the Republican world even an acknowledgment of the problem, let alone a focused policy response. You might expect better from establishment liberals and progressive reformers, who are under no such inhibition. Yet they too have proved unequal to the moment.

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