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

By Hasen, Richard L. | The William and Mary Bill of Rights Journal, March 2018 | Go to article overview

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


Hasen, Richard L., The William and Mary Bill of Rights Journal


INTRODUCTION

If the "voting wars" that have broken out across the post-2000 election landscape in the United States could be characterized as a 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. 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 that 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 twentythree 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.

I. THE "NORMAL" VOTING WARS OF 2016

American fights over the rules for conducting voting and recounts date back to the beginning of the Republic,1 but the modern period of escalation dates to the disputed 2000 presidential election between George W. Bush and Al Gore, which the Supreme Court ultimately resolved in its controversial Bush v. Gore decision.2 The very close election taught political operatives that the rules of the game matter, and in the post-2000 period we have seen a rise in new election legislation as well as litigation.3

In the period since 2000, the amount of election-related litigation has more than doubled compared to the period before 2000, from an average of 94 cases per year in the period just before 2000 to an average of 258 cases per year in the post-2000 period.4 See Figure 1.

Even compared to the 2012 presidential election cycle,6 litigation is up significantly; it was twenty-three percent higher in the 2015-16 presidential election season than in the 2011-12 presidential election season, and at the highest level since at least 2000 (and likely ever). See Figure 2.

Part of the reason for the increase in litigation over election rules is that in our hyperpolarized election environment, controversial election laws-such as voter identification laws or automatic voter registration laws-pass along party lines, and any restrictions invite litigation.8 This emergence of "red state election law" and "blue state election law" has meant that many states with Republican majorities have passed laws making it harder to register and vote, and those states with Democratic majorities have passed laws making it easier to register and vote. …

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