Many Americans don鈥檛 trust elections. What can be done?
America鈥檚 democratic process has been severely tested in the aftermath of the 2020 presidential election. Former President Donald Trump鈥檚 personal push to overturn results in key states revealed vulnerabilities in the nation鈥檚 electoral system 鈥� including how many important aspects of voting are defended not by laws, but by norms of official behavior.
Nor has the testing ended, despite the Trump campaign鈥檚 dozens of losses in election-related lawsuits, the Jan. 6 insurrection at the U.S. Capitol, and Congress鈥� ultimate certification of President Joe Biden鈥檚 Electoral College win. Despite no evidence that Mr. Trump鈥檚 loss in Arizona was fraudulent, 16 Republicans in the state Senate voted to subpoena ballots from Maricopa County, for an examination that has been widely criticized as a partisan ploy.
Trump supporters are now seeking Arizona-style 鈥渁udits鈥� in Georgia and other swing states.
Why We Wrote This
Leading up to the 2020 vote, Americans had mixed feelings about election integrity, with about 6 in 10 saying they did not trust the outcome to be fair. Rebuilding trust now looks like a high civic priority. Next in our series, 鈥�Democracy Under Strain.鈥�
Can elections be armored against disgruntled efforts to subvert them? Perhaps more important, can changes to the electoral system regain trust that has been lost on both sides?
Complete trust in election outcomes is likely an impossible goal in today鈥檚 polarized political environment. But it is possible to have trustworthy elections, ones that impartial observers can agree are free and fair, experts say.
Election audits could be akin to financial audits 鈥� activities that occur regularly, follow established professional procedures, and are largely the same in all 50 states, says Charles Stewart III, a professor of political science at the Massachusetts Institute of Technology.
鈥淚f we weren鈥檛 in the middle of partisan wrangling over the whole 2020 election, with crazy things happening in Arizona, we could have a reasonable discussion about making things better,鈥� Professor Stewart says.
High levels of distrust
Americans have mixed feelings about elections, according to polls. Overall, they are not confident in their honesty. Heading into the 2020 vote, 59% of Americans said they did not trust the outcome to be fair,聽.
But trust in specific elections can be higher. Sixty-five percent of Americans are confident in the outcome of the 2020 vote,聽. There is a wide disparity in attitudes between members of the two big U.S. political parties, though: Ninety-two percent of Democrats said the election was free and fair, while only 32% of Republicans agreed.
In general, there are really only two major factors that affect voter trust in an election, says Professor Stewart. The first is whether their candidate won or not. The second is whether they personally had to wait in a long line to cast their ballot.
According to聽many of the Republican state legislators currently pushing for聽restrictions and clarification in voting laws聽around the nation, one of their primary motives is to make GOP voters feel more secure about election results. The irony is that those bills may be unlikely to affect confidence at all.
鈥淭here is no evidence passing new laws affects voters鈥� perceptions of election integrity,鈥� Michael McDonald, a professor at the University of Florida who specializes in American elections,聽.
last month produced a variety of medium- to long-term solutions for the problem.
The United States might take elections out of the hands of partisan entities and use nonpartisan experts to run them, suggested Guy-Uriel Charles, a professor at the Duke University School of Law. He used the analogy of a NASA for elections.
Congress might pass a law requiring the winners of congressional elections to get a majority of the vote in their districts, not just a plurality, said Ned Foley, a professor of election law at the Ohio State University. This could strengthen moderates in both parties and make it more difficult for extremists to squeak into office, Professor Foley said.
The country could also begin the long-term process of strengthening the kind of intermediaries that help with truth-telling and fact-checking in politics, such as the press, the judiciary, and opposition parties, said Rick Hasen, a professor of law and political science at the University of California, Irvine.聽
There really needs to be a cross-discipline, cross-partisan effort to stop political disinformation, said Professor Hasen. Many of the efforts to pass new voting regulation laws stem from the success that Mr. Trump has had hammering home the false 鈥淏ig Lie鈥� that the 2020 election was stolen.
鈥淚f there鈥檚 going to be 30% of the population that doesn鈥檛 agree with truth, we鈥檙e not going to get out of this situation,鈥� Professor Hasen told the roundtable.
Revisit an 1845 law?
Trust in elections might also be helped by enacting some basic safeguards against flaws in the electoral system exposed in post-election struggles.
One of the biggest such holes was the prospect that legislatures in key swing states would override the popular vote in their states and appoint Electoral College electors themselves, says Richard Pildes, a professor at the New York University School of Law and co-author of 鈥淭he Law of Democracy: Legal Structure of the Political Process.鈥�
Then-President Trump called on state legislators to do just that. This sheds light on a previously little-known provision in federal election law known as the 鈥渇ailed election鈥� provision, says Professor Pildes.
Dating back to 1845, this provision says that if any state 鈥渉as failed to make a choice on the day prescribed by law,鈥� state legislatures may step in and do it instead. But the definition of 鈥渇ailed鈥� is vague, and it is possible that partisans could use allegations of voting irregularities to claim failure that necessitates lawmakers to act.聽
Congress should clarify that this applies only if natural disasters or similar events make it impossible to conduct a proper election, he says. Otherwise, the ongoing Arizona audit could be a template for trouble in 2024, with swing state legislatures drawing up lists of alleged violations, and then leveraging those into investigations and subsequent legislative intervention.
鈥淚t remains among the most potentially destabilizing provisions in federal election law,鈥� says Professor Pildes, calling it a 鈥渓oaded weapon鈥� waiting to be used.
Not just laws, but maturity and norms聽
Sweeping Democratic-backed election reform bills now before Congress deal largely with voting access and other aspects of the U.S. electoral system, not protection against subversion or explicit rebuilding of trust. Meanwhile, state voting bills such as recently passed legislation in Georgia and Florida in fact weaken local election administration, and thus might be called 鈥渄emocratic backsliding,鈥� says Jennifer McCoy, a political science professor at Georgia State University.
In Georgia, for instance, the new law would allow the GOP-controlled State Election Board to replace election officials in heavily Democratic local counties based on performance or violation of election board rules. The law contains specifics limiting the circumstances in which it can be used, but Professor McCoy says it echoes changes made in other countries such as Venezuela, where elected autocrats gradually gained more and more control over the country鈥檚 election machinery.
鈥淭his reminds me of that,鈥� says Professor McCoy.
But in the end, it may be more than laws that hold together confidence in elections and democracy itself.
鈥淚t鈥檚 the expectations, the norms, the willingness to concede,鈥� says Professor Stewart of MIT.
These problems did not start with the 2020 election, and they won鈥檛 end by 2024, either. Election administration can鈥檛 necessarily constrain bad-faith actors or even just highly disappointed losers, he says.
鈥淲e have to be mature enough to recognize there are no perfect elections. ... There becomes a margin at which even the best-executed rules and procedures will leave some room for doubt. That鈥檚 where the norms of the political process have to kick in,鈥� says Professor Stewart.
