The capstone project for my internship was to give a presentation to NCSC staff on a current issue within rule of law, looking at it comparatively between the United States and other countries. The topic that my fellow interns and I chose was rule of law and elections. Within this topic, we decided to address voting rights as well as disinformation campaigns that have successfully spread false beliefs about (among many other things) the integrity and legitimacy of the 2020 Presidential Election. Anyone minimally engaged with US politics over the past year knows that these are huge issues in the US. Disinformation, authoritarian politics, and disputed elections are also serious issues in other countries; these issues therefore provided a great comparative topic for the end-of-internship presentation.
My fellow interns and I divided up the presentation, and I took the section analyzing the US situation. Starting with a survey of the voting and election administration practices that became controversial in the 2020 election — e.g., mail-in voting, early voting, ballot drop off, third-party ballot collection, counting ballots cast in the wrong precinct, ballot counting and partisan monitoring, etc. — I then looked at examples of post-2020 Election litigation, in which the former President and his political allies sought to overturn the election results. I chose two state supreme court decisions from 2020 battleground states — Wisconsin and Arizona — where the majority of justices were Republican-appointed or affiliated, and a decision from the US Court of Appeals for the 3rd Circuit, written by Trump appointee Stephanos Bibas. The rule of law concern in these cases is clear: the former President and his allies seeking to delegitimize, bypass, or overturn democratic processes and results to remain in power.
In the Wisconsin case, Wisconsin Voters Alliance v. Wisconsin Elections Commission, the Wisconsin Voters Alliance filed a petition against the Wisconsin Elections Commission asking the Wisconsin Supreme Court to nullify and block certification of the results of the Wisconsin presidential election and allow the state’s legislature to appoint electors. The Wisconsin Supreme Court’s decision was 4-3, with conservative justice Brian Hagedorn joining the court’s three liberals. Hagedorn wrote the opinion, in which he stated: “This petition falls short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter… This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
In the Arizona case, Ward v. Jackson, Kelli Ward, Arizona’s Republican Party Chair, filed a lawsuit alleging that Arizona poll workers were not fit to verify absentee signatures and that observers were not present for the replication of damaged ballots, in violation of state law — the claim being that partisan ballot counters transferred votes from Trump to Biden. Ward asked the court to decertify the election results for Biden and award the elector votes to Trump. The Arizona Supreme Court, consisting entirely of Republican-appointed justices, ruled against Ward, stating that “Although [Ward] requested additional time and the opportunity to review additional ballots, [they] offered no evidence… to demonstrate any fraud, if present,” and concluded that “the challenge fails to present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden Electors ‘did not in fact receive the highest number of votes for office,’ let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”
In the 3rd Circuit case, Donald J. Trump for President, Inc. v. Sec'y Pennsylvania, the Trump Presidential Campaign asserted that the “2020 election was unfair.” As Judge Bibas described the Trump Campaign’s argument, “the Campaign ‘doesn’t plead fraud… [T]his is not a fraud case.’ Instead, it objects that Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more.” Bibas, writing for a unanimous panel, excoriated the Trump Campaign’s claims, stating that “its allegations are vague and conclusory,” and that the “Campaign’s claims have no merit.” Bibas stated that the Trump team’s requested remedy — to toss out millions of mail-in ballots — would be “drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too.” Bibas summed up this way: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
From the post-election litigation, I then looked at how states have responded to “The Big Lie.” I first found information on restrictive laws, and this painted a pretty grim picture initially. According to the Brennan Center’s July 2021 Voting Laws Roundup, eighteen states have enacted thirty laws that restrict access to the vote. Additionally, as the New York Times has reported, “Nationwide, Republican lawmakers in at least eight states controlled by the party are angling to pry power over elections from secretaries of state, governors and nonpartisan election boards.” This raises the prospect of Trump loyalists or believers in election fraud holding the power over election certification and being able to overturn results they dislike – eliminating key restraints that were in place during the 2020 election.
On the other hand, as the Brennan Center’s July report also shows, twenty-five states have enacted fifty-four laws with provisions to expand voting access. This information somewhat improved the initially grim picture of widespread voting restriction – there is at least a countermovement strengthening the right to vote. However, the divide between restrictive and expansive voting laws has created, in the words of the Voting Rights Lab, a “tale of two democracies.” Where you happen to live in America is one of the key determinants of how easy it is for you as a citizen to participate in democracy. As Nevada Governor Steve Sisolak (D) put it, “Voting rights really shouldn’t be impacted by boundary lines that are drawn arbitrarily for states… It should be the same for everybody. … It shouldn’t be dependent on who is in power and who is not and who is passing the laws.”
I think Sisolak’s observation gets to a key point in the debate over the rule of law and elections in the US context. The US system of government is, of course, a federal system, comprised by the US federal government as well as fifty state governments (including tens of thousands of local governments). For some political observers, when it comes to the fundamental right to vote, as for other rights, state boundaries really are arbitrary constructions that make inequalities in voting access possible — the differences, for example, between voting-restrictive Texas and voting-expansive Virginia. We might stylize this the liberal position. Those on this side of the debate might point back to the monumental Civil Rights Act and Voting Rights Act of the 1960s, and ultimately to the Reconstruction Amendments, especially the 14th and 15th, showing how these amendments fundamentally recreated the American constitution and federal system of government. Those on this side argue that true democracy, justice, and the rule of law demand national, uniform practices guaranteeing equal access to the ballot. For others, however, differences in practice between the states is precisely what the rule of law requires in the US federal system. This would be the principled conservative position. For this side, the 14th amendment left the US federal system essentially unchanged, and the best security of justice and fairness is not the federal government guaranteeing nebulous equal rights, but the legislators of individual states responding to real local conditions.
In the presentation, I obviously don’t resolve this debate; I only set it up to try to show the complexity of what rule of law means in this area (though I come down on the liberal side as described). I conclude by mentioning proposed federal voting rights laws — the John Lewis Voting Rights Act and the For the People Act — and the practical impossibility of passing either unless the filibuster is eliminated, which some Democratic senators have vowed not to do in the name of bipartisanship. I also consider the Supreme Court’s recent case, Brnovich v. DNC, in which the Court upheld two Arizona voting restrictions — a ban on third-party ballot collection and invalidating ballots cast at the wrong precinct. Alito wrote the opinion for the conservative majority, and one of the factors that he lays out to decide “cases involving neutral time, place, and manner rules” governing elections is “[t]he strength of the state interests served by a challenged voting rule.” As Ian Millhiser writes, this factor essentially endorses the restrictive voting practices that “state lawmakers claim that they need… to combat such fraud.” In other words, regardless of whether state legislators’ concerns are based on baseless claims of fraud, as with the 2020 election, such concerns are enshrined as one of the factors judges should consider when ruling on voting laws.
This presentation was very rewarding to research and think through, and it served as a great capstone to this internship with its emphasis on the rule of law in the US and abroad.