James A. Gardner1James Gardner is the Bridget and Thomas Black SUNY Distinguished Professor of Law and Research Professor of Political Science at the University at Buffalo School of Law, State University of New York. He thanks Rick Pildes for comments on a prior draft.
* * *
A part of the Pandemic Elections series. Read the abstract of this piece here.
The 2020 presidential election, possibly one of the most consequential in the nation’s history, now looks increasingly as though it will be held during an unprecedented pandemic. Although the actual effect on voter turnout in November is difficult to predict,2Overall turnout in primary elections thus far is down substantially from 2016, but that is as true of primaries held before states began imposing restrictions on movement and activity as afterwards. At the same time, turnout in some primaries held after the imposition of restrictions was down only slightly from prior years, most notably in Wisconsin. experience this spring with holding primary elections during a public health emergency suggests that the general election is likely to be held under conditions that place severe downward pressure on turnout. Voters may abstain from in-person voting for fear of contracting or spreading the disease. Administrative efforts to provide alternatives to in-person voting—undertaken with short notice and little experience or preparation—may be disorganized and ineffective. State officials may, under cover of the emergency, seize the opportunity to alter electoral rules in ways that deliberately and selectively inhibit turnout.
The possibility of severely depressed voter turnout raises troubling questions about the democratic legitimacy of the upcoming election. In this brief contribution, I lay out some basic principles of democratic legitimacy, explain the standards of legitimacy that typically apply to American elections, and discuss the possible consequences for democratic legitimacy at the general election in November if turnout is unusually low due to involuntary exclusion of large numbers of voters. I conclude that the risks to democratic legitimacy from low turnout are disturbingly high.
I. Democratic Legitimacy: Some Basics
It is crucial at the outset to distinguish between two kinds of democratic legitimacy: the legitimacy of the government and the legitimacy of elections. The first, which I will call regime legitimacy, concerns popular choice of a democratic system of governance. The second, which I will call electoral legitimacy, concerns the faithful implementation of that choice in conducting electoral processes.
The difference between these two forms of legitimacy tracks a familiar distinction in liberal political theory between actions of the people taken prior to the creation of a government and actions taken by the government following its creation.3This is the theory set out most prominently in John Locke, Second Treatise of Government (1690), and largely echoed in concise form in the Declaration of Independence (U.S. 1776). In the standard account, a group of people agree first to form a civil society, and then to establish a government to rule them, deciding simultaneously on its form and authority. A democracy is one possible regime choice, though not the only one. This act of popular approval, typically undertaken by adoption of a constitution, confers regime legitimacy.
Once a people has created and authorized a government, that government, if democratic in form, must take steps to operationalize democratic self-rule through the enactment of electoral laws. The purpose of elections held under such laws is thus the limited one of conferring authority to rule, within the now-established constitutional framework, on particular individuals. Those on whom the electoral laws confer such authority enjoy electoral legitimacy.
Electoral legitimacy in turn has two aspects, one substantive and the other procedural. The normative point of an election is to identify and install in office those whom the people wish to appoint. The substantive electoral legitimacy of an election thus requires that it employ methods and procedures reasonably calculated to permit the accurate identification of those individuals. The procedural electoral legitimacy of an election, in contrast, requires only that it be conducted faithfully pursuant to authoritatively established procedures, whatever they may be. Consequently, once a regime of substantively reasonable electoral laws is in place, electoral legitimacy tends to be predominantly procedural: it is established by full and fair official compliance with authoritatively established electoral procedures.4See Dennis Thompson, Just Elections: Creating a Fair Electoral Process in the United States 1, 185–87 (2002).
It follows that challenges to “democratic legitimacy” may be of three types. The least threatening by far is a challenge to the procedural electoral legitimacy of a particular election. Such a claim charges that errors in the implementation of controlling electoral laws have caused the conferral of governmental authority on someone who in fact lacks the requisite popular approval. Such charges are leveled frequently in the United States and are handled routinely by legal procedures governing election contests, recounts, and remedies.
A more serious challenge to democratic legitimacy takes aim at the substantive electoral legitimacy of an election. Such a challenge argues that the electoral laws, even when scrupulously followed, are so poorly crafted that they tend regularly to misidentify those actually preferred by the relevant majorities and thus entitled to exercise official power. For such a complaint the law has no solution, as the challenge attacks the legal order itself. Such claims can be handled only through inherently political contestation, within the constitutional framework, over the substantive merits of the prevailing electoral laws.
The most serious and threatening challenge to democratic legitimacy presents a challenge not simply to the entitlement of particular individuals to hold power, but to the validity of the existing regime, which it claims ceases to enjoy popular consent. Such a challenge contends, in essence, that the constitutional order itself has been dissolved, as in Locke’s expression, “from within”:
When any one or more shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new legislative, as they think best, being in full liberty to resist the force of those, who without authority would impose anything upon them.
In these circumstances, popular consent to the existing governmental order is withdrawn, and attempts to exercise official power may be treated as a kind of usurpation that civil society may justly resist.
An important problem here, however, is that the different kinds of challenges to democratic legitimacy, although distinct in principle, may in practice be linked: in some circumstances, ostensibly manageable problems of electoral legitimacy can escalate into much more serious problems of regime legitimacy. For example, widespread election fraud in the 2019 Bolivian presidential election led first to mass protests against the declared winner, incumbent Evo Morales; and then, after Morales fled the country, to considerable doubt over whether the existing constitutional structure retained popular approval.
II. Voter Turnout and Electoral Legitimacy: The Baseline Model
Voter turnout in the United States is, by global standards, low, often shockingly so. Over the last century, for example, voter turnout in presidential elections has ranged between a low of 48 percent (1924) to a high of 65 percent (1960), with a modal rate in the low-to-mid-fifty percent range, placing the U.S. in the bottom quarter of developed democracies worldwide.5See Curtis Gans, Voter Turnout in the United States, 1788–2009 (2011). The United States also has the second-largest gap worldwide between voter registration and voter turnout. Turnout falls rapidly for lower-level offices, and for all offices in years in which no presidential race is on the ballot. Voter turnout for midterm Senate and House elections often dips below 40 percent. Turnout in local elections is usually below 25 percent, and often under 10 percent.6See J. Eric Oliver, Shang E. Ha & Zachary Callen, Local Elections and the Politics of Small-Scale Democracy 55 (2012). In 2015, for example, the mayoral election for Dallas, Texas, was decided on voter turnout of 6 percent. Despite these figures, even extremely low voter turnout is not normally thought to threaten electoral legitimacy. Why?
American tolerance for low voter turnout appears to be rooted in a highly individualistic and rights-based conception of political participation. In the American tradition, decisions concerning whether, when, and in what manner to participate in politics are generally thought to be matters of individual choice. Liberties in the American tradition are typically conceived of as personal rather than communal, and decisions about whether to fulfill even the most pressing social or political obligations are most often considered voluntary. Similarly, the dominant conception of equality in the American constitutional tradition is equality of opportunity, a corollary of which is that no one is obliged to make use of available opportunities. It follows that voting—a right that affords individuals an opportunity to influence the political process but which is, according to the Supreme Court, “individual and personal”—is inherently voluntary.
From this starting point, American political thought appears to have developed conceptions of both substantive and procedural electoral legitimacy that are emphatically minimal. Substantively, American electoral laws almost never impose any minimal threshold of participation as a condition of electoral success. There are occasional exceptions; for example, a section of the Oregon Constitution provides that no local property tax increase may take effect without popular authorization at an election in which “(a) At least 50 percent of registered voters eligible to vote in the election cast a ballot; or (b) The election is a general election in an even‑numbered year.” Such provisions, however, are rare, and the most common electoral arrangement in the United States is one in which elections are decided by a majority or, in many cases, even a plurality of votes actually cast, regardless of how many or how few.
Similarly, procedural burdens that depress voter turnout are typically viewed as unthreatening to substantive electoral legitimacy. For example, mandatory voter registration that places the burden of registration on voters––a measure well-known to depress voter turnout significantly––is not thought to undermine electoral legitimacy even though it may distort the characteristics of the eligible electorate, thereby affecting outcomes.7Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 151–59 (2000). The same is true of voter identification requirements that impose burdens of expense, time, or effort on voters.
At the same time, American election law seems also to embrace a minimal, and thus undemanding, conception of procedural electoral legitimacy. The Supreme Court has generally held that states have substantial latitude to regulate elections, and has often deferred to their procedural choices, although Bush v. Gore may have changed the landscape considerably in this respect, a subject to which I shall return. American election law also displays a high tolerance for procedural errors; the nearly universal rule among the states is that procedural irregularities are to be ignored unless they are so widespread as to have some realistic prospect of altering the outcome. Moreover, invalidation of elections as a remedy for procedural errors and irregularities is deeply disfavored in election jurisprudence. In sum, the prevailing American approach to procedural electoral legitimacy is––or at least until recently has been––a highly pragmatic tradition of what we might call “good enough.”
In the abstract, this cluster of positions is coherent. It begins from an extremely robust presumption that abstention indicates nothing more significant than a personal distaste for political participation, or at most, indifference among the candidates actually running for office. Since the point of an election is to determine the preferences of the electorate, eligible voters who lack such a preference can do no harm by abstaining.8It is sometimes said that such voters could actually cause harm by voting. See Jason Brennan, The Ethics of Voting (2011). Indeed, on these assumptions, those who abstain because they are indifferent, or hold very mild preferences, may be understood as engaging in a desirable form of civic generosity by delegating the relevant choice to others who have more intense preferences.9See, e.g., State ex rel McCue v. Blaisdell, 18 N.D. 31, 39 (1909) (“[I]f an elector enters the booth and votes for some candidates and not for others . . . he delegates to those who do vote his rights as an elector and acquiesces in the result”). I am indebted to Rick Pildes for this citation. See Richard H. Pildes and G. Michael Parsons, The Legality of Ranked-Choice Voting at 55–56.
Moreover, when abstention is predominantly a matter of taste, and is randomly or unsystematically distributed––as taste by hypothesis tends to be––abstention may not in fact matter due to the operation of a kind of law of large numbers that seems to apply in the electoral setting. Patterns of voting prevailing among the electorate as a whole often seem to be replicated, in a kind of fractal relationship, in smaller slices of the electorate. Thus, if the voters in a House district would elect a Democrat by a 10-percent margin if they turned out at a rate of 70 percent, it is often the case that they would also elect a Democrat by a similar margin if they turned out at a rate of 50 or 30 percent. Indeed, in the limiting case a tiny but scientifically randomized sample of the electorate might well produce a measurement of popular preferences that is at least as accurate as general voting, and possibly more so.
The real problem here is not that minimalist conceptions of electoral legitimacy are incoherent; it is that they rest on demonstrably false premises. In fact, abstention is not always simply a matter of taste, and is almost never unsystematic: habitual nonvoters tend to be different from habitual voters. In particular, they tend to be poorer, less well-educated, younger, and darker, and to find procedural obstacles to voting much more difficult to surmount.10Recently, the claim has been made that the demographic gap between voters and nonvoters––or, more broadly, between those who participate in politics and those who do not––has been a significant contributing factor to income inequality and the skewed responsiveness of public policy to the preferences of the rich. Interestingly, there is some dispute over whether elections results would actually change if habitual nonvoters became regular voters.
There is, however, a second strand in the body of American political thought that addresses this concern, though again minimally.
III. Electoral Legitimacy and Selective Involuntary Exclusion
If electoral legitimacy is generally unthreatened in our system by abstention that is voluntary and unsystematic, it is often considered to be threatened when abstention is involuntary and selective––when it is the result, that is to say, of discrimination. Consequently, American election law takes a dim view of electoral practices, or combinations of electoral practices and circumstances,11The “essence” of a violation of Section 2 of the Voting Rights Act is that “a certain law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986). that involuntarily exclude certain classes of voters systematically, especially when done so deliberately to secure an electoral advantage.
Historically, the main concern here has been electoral rules or practices designed to exclude specific demographic groups from participating in democratic self-governance. The paradigm, of course, is the devastating, systematic exclusion of blacks in the Jim Crow South. Election law provides robust protections, both constitutional and statutory, against this kind of behavior.
However, the systematic, involuntary exclusion of voters need not be limited to demographic groups. Electoral rules and practices might inhibit effective voting based on partisanship, as in the case of partisan gerrymandering. Or they might impose obstacles to voting on a geographical basis. This is a particular concern in presidential elections, in which the electoral rules assemble majorities by state rather than nationwide. Impediments to voting that are distributed geographically might also be of particular concern during a pandemic, when the impact of the disease and the incidence of activity restrictions that inhibit voting might not be distributed evenly throughout the nation or within individual states.
Unlike abstention, which (as indicated above) is presumed to be voluntary and harmless to electoral legitimacy, exclusionary measures that involuntarily and selectively depress participation by identifiable groups are clearly understood to threaten substantive electoral legitimacy. Such measures do so by violating conditions of impartiality; by impairing the accuracy of electoral results; and by undermining the representativeness, responsiveness, and accountability of democratically elected governments.
Even so, legal protections against these threats to electoral legitimacy are minimal. Constitutional prohibitions are limited to measures that discriminate intentionally—measures that inadvertently or only incidentally suppress turnout among specific groups are not prohibited unless they impose a “severe” burden on voting rights. Unintentional voter suppression of specific demographic groups is addressed only by the Voting Rights Act, and only for the specific classes it protects, which are limited to racial and linguistic groups. There is essentially no federal protection against measures that selectively suppress political efficacy on the basis of partisanship, and such protections are rare on the state level as well.12A few scattered provisions of state constitutions purport to place restraints on partisan gerrymandering by prohibiting the drawing of district lines so unduly as to favor a particular political party. See, for example, Del. Const. art. II, § 2A; Fla. Const. art. III, §§ 20, 21; Haw. Const. art. IV, § 6; Wash. Const. art. II, § 45(3).
At the time of writing, there appears to be considerable fear, especially among minorities and Democrats, that Republicans, invoking the pandemic for cover, will use their power in the states they control to suppress turnout selectively. The president himself has stoked such fears. In March he proclaimed, in reference to a voting bill supported by House Democrats, that “[t]he things they had in there were crazy. They had levels of voting, that if you ever agreed to it you’d never have a Republican elected in this country again.” In May, he explicitly threatened to withhold federal funding from Michigan and Nevada in retaliation for decisions in those states to expand the availability of voting by mail.
IV. Consequences of Low Turnout in the General Election
Suppose that the pandemic does substantially reduce voter turnout in the November election. What might be the consequences for democratic legitimacy?
In the least problematic scenario, turnout is low, but (1) abstention is, for the most part, randomly distributed and not the result of intentional vote suppression, and (2) any involuntary disenfranchisement is of a magnitude insufficient to put the outcome into doubt. In those circumstances, the election will have been conducted by the book, and although low turnout might induce some degree of complaining or bad feelings, under prevailing American standards there will be no sound basis for doubting its electoral legitimacy.
If either of these conditions is violated, two types of responses are possible. One response would be to treat the election as presenting relatively contained problems of democratic implementation that threaten only the procedural electoral legitimacy of the winners. In that case, the problem, though not insubstantial, is limited in scope, and is susceptible in principle to resolution by ordinary legal procedures. The other, and much more consequential, response would be to treat the election as so thoroughly compromised as to amount to a dissolution of the government, thus triggering a full-blown crisis of regime illegitimacy. There is, unfortunately, no standard by which to distinguish the two circumstances; it is entirely a matter of inherently standardless political judgment.
It is difficult to predict, or even to speculate, which of these responses would be more likely. On one hand, as Thomas Jefferson observed, “[p]rudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.” If Jefferson was correct, the most likely response is therefore patient, if frustrated, acquiescence in the outcome.
On the other hand, the risks of escalation––from concerns, that is, of electoral legitimacy to concerns of regime legitimacy––seem in these circumstances unusually high, for several reasons. First, the remedies most commonly available under election law for these kinds of problems are few, poor, and disfavored. Electoral errors may be two types: those occurring in the casting of votes and those occurring in the counting of votes. Errors in counting are easily addressed by recounting, but errors in casting are much harder to address because the casting of votes has been completed by the time the error is discovered and cannot be corrected. Moreover, errors in casting may themselves be of two types: errors of improper inclusion and errors of improper exclusion. Errors of inclusion may in principle be addressed by identifying and excluding ineligible ballots. But errors of exclusion cannot be addressed after voting concludes because there is no reliable way to determine who intended to vote but failed to do so on account of improper impediments. Thus, the only remedy capable of addressing errors of improper exclusion of votes is to rerun the election, a highly disfavored remedy of extremely limited availability. The absence of an established, ready-at-hand legal remedy clearly raises the risk of popular rejection of the result.
Second, as scholars such as Ned Foley have tirelessly warned, we do not presently have in place good remedies, or even well-considered strategies, for handling significant or widespread errors occurring in presidential elections. The constitutional and statutory rules are vague. If errors occur in a single state in a close election, as was notoriously the case with Florida in 2000, then the electoral rules of that state may appear to determine the outcome for the entire nation, undermining the appearance of fairness, impartiality, and inclusivity. If errors occur in multiple states, no means exist to address them uniformly, again undermining the kinds of appearances that nowadays seem essential to the maintenance of electoral legitimacy in a nationwide election.
Third, the stakes have been raised substantially by the Supreme Court’s decision in Bush v. Gore. For nearly four decades following the birth of constitutional election law jurisprudence in the 1960s, the Supreme Court took a minimalist view of procedural electoral legitimacy. On that view, the Constitution placed few significant restraints on the ways states structure and administer electoral procedures. Instead, the Court routinely recognized that states have “broad power” to regulate elections; that this power gives them “considerable leeway to protect the integrity and reliability of . . . election processes generally”; and that it was consequently “very unlikely that all or even a large portion of the state election laws would fail to pass muster under our cases.”
That approach was sharply rejected by the Court’s 2000 decision in Bush v. Gore, which signaled that even the most trivial aspects of election administration, such as the configuration of and instructions issued to ballot recount teams, or the precise type of machinery used to record and tabulate votes, could be subject to intense constitutional scrutiny. Even though the Court, controversially, attempted prospectively to limit the precedential effect of the decision at the time it was issued, the ruling has nevertheless created a new baseline expectation that the Constitution places heavy, normative demands on what was previously considered the arcana of electoral administration, and that the federal judiciary has a significant and intrusive role to play in overseeing electoral processes. The effect of the decision has thus been to ratchet up dramatically public expectations about the procedural purity of routine electoral processes, even when electoral administration occurs in what may be very difficult circumstances.
Finally, the incumbent president of the United States has from the day of his inauguration worked steadily to foment the kind of distrust of electoral processes that could, in the right circumstances, mature into full-blown regime illegitimacy. In-person voting, the president has long maintained, is riddled with fraud. He now adds that absentee voting also is fraudulent, evidently making all voting fraudulent and unreliable. His all-purpose factotum Jared Kushner is unwilling to rule out the possibility of outright postponement of the election, though by what legal means that could occur is far from clear.
The growing authoritarianism and illiberalism of the Republican Party, moreover, suggest a deeply unfortunate but seemingly ready willingness to sacrifice regime legitimacy in favor of retention of power, a strategy now employed widely by authoritarian regimes around the globe.13See James Traub, What Was Liberalism? The Past, Present, and Promise of a Noble Idea 9–10 (2019); Paul Krugman, Arguing with Zombies: Economics, Politics, and the Fight for a Better Future 346, 369 (2020). For example, it is increasingly common among authoritarian rulers to extend their terms beyond constitutionally imposed limits. Recent actions of Republican-controlled legislatures in Wisconsin and North Carolina, for example, to strip newly-elected, incoming Democratic governors of constitutional and statutory authority suggest an underlying belief that the exercise anywhere in the United States of official power by Democrats is itself illegitimate.14See Tom Ginsburg & Aziz Huq, How to Save a Constitutional Democracy 127 (2018); Steven Levitsky & Daniel Ziblatt, How Democracies Die 9 (2018).
The risks posed by the coming election to democratic legitimacy are thus high. If turnout is in fact unusually low, certainly the results will have to be utterly decisive to forestall any public doubts.
* * *
James Gardner is the Bridget and Thomas Black SUNY Distinguished Professor of Law and Research Professor of Political Science at the University at Buffalo School of Law, State University of New York. He thanks Rick Pildes for comments on a prior draft.