On November 6, 2018, tens of millions of Americans will go to polling places across the country to participate in federal and state elections. It is an exceptionally important election year. All 435 House seats and 35 Senate seats will be up for election, as well as 36 gubernatorial offices. In addition, control of 87 of the 99 state legislative chambers (and 82% of state legislative seats nationwide) will be determined on November 6, and many of the 6,066 legislators who win election this fall will be responsible for drawing new legislative and congressional district lines in 2021. Amid a deeply polarized political environment, the results on November 6 could shape the direction of the country for years to come.
In light of the stakes, one might assume that the states are well-prepared for any potential election disruptions, whether in the form of Russian hacking or natural disasters. But to a remarkable degree, that is simply not the case.
Our Hyper-Decentralized Election System
Since the republic’s earliest days, the states have played the leading role in administering American elections. The Elections Clause, which is found at Article I, Section 4, states:
“The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”
The Elections Clause thus directs the states to administer federal elections as well as state and local elections. In addition, Congress has enacted a few modest administrative regulations of its own. The National Voter Registration Act of 1993 (the “motor voter” law) requires state election officials to coordinate voter registration with their respective departments of motor vehicles and the Help America Vote Act of 2002 requires states to maintain online, centralized voter registration databases and modernize voting systems. Otherwise the federal government plays a fairly minimal role in election administration.
Yet, despite the prominent role assigned to state election authorities by the Elections Clause, the states themselves play an increasingly diminished role in election administration. In an outstanding recent Michigan Law Review article, “Election Law Federalism,” Professor Justin Weinstein-Tull explains how the states have delegated much of the actual “nuts and bolts” of election administration to local, county, and municipal governments. Amazingly, more than 10,000 different jurisdictions administer elections in the United States, a level of decentralization without parallel among major western democracies.
The result is that American elections—federal, state, and local—are administered under wildly divergent and irregular standards. As Weinstein-Tull notes: “Because state law forms the foundation of election regulation, great variety exists in how elections are administered across state lines. Voting hours differ; funding schemes differ; absentee voting rules differ; voter registration rules differ.” Major differences can even be found within states, as counties and cities adopt idiosyncratic election rules of their own.
With limited federal involvement and extreme decentralization within the states, the quality of American election administration is highly uneven and it fares poorly in international studies. For example, a 2012 study by the Electoral Integrity Project found that “domestic and international experts rate the [administration of] U.S. elections as the worst among all Western democracies.” Equally troubling is the public’s growing distrust of how the states’ administer elections. An October 2016 study found that only 43% of Americans were very confident that their votes would be counted correctly.
Hacking, Terrorism, and Natural Disasters
Besides giving rise to a byzantine system of electoral regulations, decentralized administration makes the country particularly vulnerable to election disruptions. Three concerns in particular stand out in 2018: computer hacking (especially of voter registration databases), terrorism, and natural disasters.
The most obvious threat to the 2018 elections comes from foreign intervention. In 2016 Russian hackers targeted the registration systems in 21 states, and even gained access to Illinois’s voter registration database. Last month the blog FiveThirtyEight discussed how, if Russian hackers were to gain access to online voter registration databases, they could create chaos by changing or deleting voter information. Such an attack would benefit from the fact that only 15 states permit Election Day registration. Accordingly, if voters’ registration files are deleted or manipulated, and the voters don’t learn of the problem until election day, affected voters in 35 states might not be able to vote.
Terrorism also constitutes a potentially grave threat to elections, as the September 11 terrorist attacks demonstrated. September 11, 2001 was New York’s statewide primary election day. The horrifying destruction in Lower Manhattan prompted the state election authorities to postpone the elections until later in the month. In the years since 2001, we have seen terrorist attacks in close proximity to elections, including in Spain in 2004 and France and England in 2017. An election day attack on just a few polling places could disrupt the voting process in an entire state, and potentially depress turnout around the country.
A natural disaster could also have a huge impact on the election. Florida is a case in point. No state will play a bigger role in the 2018 election than Florida, which has five highly competitive House races as well as very close contests for the U.S. Senate and the Florida governor’s office. Hurricane season in Florida lasts until the end of November, which means that a hurricane or major tropical storm on or shortly before the election is within the realm of possibilities. A statewide election’s outcome could be directly affected by the location where the storm comes ashore. For example, if an election day storm struck the Florida Panhandle, the most Republican part of the state, it would depress turnout and likely deliver the Senate and gubernatorial elections to the Democrats. Conversely, a storm that struck Miami-Dade County, a Democratic bastion, might depress Democratic turnout and hand the election to the Republicans.
Those are just a few of the scenarios that could have a hugely disruptive impact on the 2018 election.
Remarkably, however, most states have failed to enact legislation to deal with such potential threats. In fact, according to a 2017 study by the National Association of Secretaries of State, only 12 states specifically authorize the postponement of elections in the event of a state emergency.
Dealing with Election Emergencies
In an important new article in the Emory Law Journal, “Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks,” Prof. Michael Morley examines the recent history of election disruptions and proposes steps states should take to prepare for such contingencies. As Prof. Morley notes, states have three options in the event of a disrupted election: modify the election by extending polling hours or adding polling places; postpone the election by rescheduling it (usually within 30 days of the originally scheduled election); or cancel the election entirely and start over from scratch with a new election months later that is open to new candidates and new voters.
The problem is most states lack statutes that provide election officials with guidance on responding to emergencies. The result, Prof. Morley explains, is that “courts are often asked to step in on a largely ad hoc basis as a constitutional matter and craft remedies out of whole cloth.” But as the Supreme Court’s ruling in Bush v. Gore demonstrated, when a court makes new law to resolve an election dispute, the court’s credibility as a neutral body is inevitably (if often unfairly) undermined.
To address the problem, states need to enact legislation that clearly spells out how governors and state authorities can and should respond to election emergencies. Morley recommends that “[s]tates should opt for the least extreme form of relief possible, relying primarily on election modifications rather than postponements, and reserving election cancellations only for the most extreme circumstances.”
But whatever the outcome of the contingency plans, it is imperative that the states provide unambiguous guidance and clear lines of authority for dealing with major election emergencies. It is simply negligent for state legislatures to do otherwise.
Symphonies of Democracy
In his article on election law federalism, Professor Weinstein-Tull makes the memorable observation that “[e]lections are our chaotic symphonies of democracy.” Elections are indeed symphonies of democracy, and as such they are worthy of celebration and veneration. But they also need to be protected and rendered less chaotic. In our dangerously divided nation, we can no longer afford ambiguities and gaps in our election laws. State legislatures need to adopt clear and unambiguous rules that govern during emergencies and guarantee that elections are conducted in a fair and even-handed manner no matter what disruptions might occur.
To that end, both Prof. Weinstein-Tull and Prof. Morley provide important guidance. The time has come for Congress to play a larger oversight role in federal elections and for the states to manage local election administrators more closely, as Prof. Weinstein-Tull argues. Most important of all, as Prof. Morley contends, the states need to proactively plan for worst case scenarios.
The 21st Century has not been particularly kind to the United States. Since 2000 we have experienced one national trauma after another, including the bitterly-deadlocked presidential election in 2000, the devastating 2001 terrorist attacks in New York and Washington, the intractable wars in Afghanistan and Iraq, the incompetent response to Hurricane Katrina, the Wall Street meltdown in 2008, and the unprecedented foreign intervention in the 2016 presidential election.
If those years have taught us anything, it is that both the federal government and the states need to engage in competent, thoughtful, and dispassionate contingency planning. The security of our democracy depends on it.
the unprecedented foreign intervention in the 2016 presidential election"
Seems you have information that the Special Counsel does not. Reading the indictments to date, no such "unprecedented" activity appears.
Likewise, please cite the evidence that the volume of purchases of ads on Facebook (a little tiny drop in a very big bucket, and not even in the states that mattered) and the hacked DNC and Podesta emails (please cite the evidence that this was "Foreign intervention") had a material effect on the election.
You tend to pepper otherwise acceptable analyses with unsupported tropes that you pick up from Democratic Party talking points and throw in for "sweeteners." This practice undercuts your credibility, as it evokes the image of an undergraduate who hasn't learned about citations and fact checking one's work.
BTW, your statement that "In 2016 Russian hackers targeted the registration systems in 21 states, and even gained access to Illinois’s voter registration database." is a far cry from "tampered with" or "affected" these systems in any way whatsoever. Indeed, the NYT article you cite says that this "targeting" amounted to a burglar looking at a house, and the "grave threat" of this activity wasn't even deemed worthy of a notice to those "looked over" for over a year (i.e., by the prior administration).
Posted by: anon | May 07, 2018 at 12:14 AM
Since Activist Supreme Court Justices Scalia and Thomas, legislated from the bench and installed President Cheney to office in 2000, every election should be treated as an EMERGENCY.
Posted by: Deep State Special Legal Counsel | May 07, 2018 at 03:54 PM
"The 21st Century has not been particularly kind to the United States. Since 2000 we have experienced one national trauma after another, including the bitterly-deadlocked presidential election in 2000, the devastating 2001 terrorist attacks in New York and Washington, the intractable wars in Afghanistan and Iraq, the incompetent response to Hurricane Katrina, the Wall Street meltdown in 2008, and the unprecedented foreign intervention in the 2016 presidential election."
Get the fainting couch.
And don't forget to add the election results from 2008 and 2012.
Posted by: anymouse | May 07, 2018 at 04:58 PM
Whaaaaaaat?????????^^^^ Your reasoning does not work here. How do you segue from wars, terror attacks, weather disasters to the elections of President Obama?
The election of President Obama TWICE was a great triumph of democracy. He was scandal free and had one legislative triumph after another. Not to mention the great symbolism of he himself taking office.
The greatest thing about Obama as President is that I could sleep at night knowing that our Nation was in good hands.
Posted by: Deep State Special Legal Counsel | May 07, 2018 at 06:05 PM