[Image via wonderopolis]

Loyola Law’s Justin Levitt has a great piece at the Harvard Law Review blog suggesting a certain sense of deja vu with regard to the 2018 election – which, he notes, in many ways looked a lot like the 2000 election:

The most salient national recounts of 2018 are now over. That does not mean it’s time to relax.

Over the past two weeks, Florida has once again been recount central. And it has been impossible to escape the looming omnipresence of the ghosts of the 2000 election. Bush v. Gore, synecdoche for the problems with American election administration, was back.

The elections of 2000 still have important lessons to offer for the present. But in much of the public dialogue, the cheap comparisons have overwhelmed the meaningful ones. And if we think we’ve dodged a bullet just because the recounts are over, we’re actually missing the important moment.

The past two weeks brought a collective click of the tongue: “Tsk, Florida. What’s the matter with you?” Twelve days after Election Day, we still weren’t sure who won; Broward and Palm Beach were unsteadily running up against a deadline, angry crowds were massing, and at least in Florida, citizens (and especially operatives) still apparently suffering from electoral PTSD were holding their breath in a way that seemed uncomfortably familiar. In a presidential election year, that might be all of us. Again.

But neither the fact of a recount nor the absence of immediate gratification are meaningful signs of trouble. Some elections are close. When elections are sufficiently close, we can’t estimate our way to a likely answer as the polls close: we have to actually count all of the ballots before we declare a winner. That includes determining the eligibility of provisional ballots and ballots cast by mail — including, in Florida, overseas ballots postmarked by Election Day but received 10 days thereafter — and tallying those as well. Sometimes the elections are so close that we want to count again to make sure the count is right, and given the comparatively meager resources we devote to administering elections, that counting can take some time. As seasoned elections observer Doug Chapin put it: “Fast, cheap, correct: pick any two.”

This is why no official entity offers a final verdict before the elections are certified — and why deadlines for certification are well after Election Day in every state in the country. We’re pretty sure that Sen. Mazie Hirono won re-election with 71% of the Hawaii vote, but even that landslide isn’t firm until afterThanksgiving. When media outlets called the race 13 minutes after the polls closed, they were merely making a prediction.

So neither the existence nor duration of the Florida recount indicates dysfunction. Recounts are the inevitable occasional byproduct of elections that aren’t predetermined. And even given the attention span of the Twitter age, we need to take the time to get them right. That means, among other things, not cutting the process short just because we happen to think we’re winning at the moment.

By the same token, the end of the recount — and the concessions of the candidates who came up short — demonstrates a commendably violence-free transfer of power, but is no stamp of approval for the election process that got there.

For me, 2018 felt like 2000 long before recount fever hit Florida. The most searing image of 2000 is the painstaking review of punchcard ballots. But the “hanging chads” were only the concern most conducive to Halloween costumes. In truth, the artificial indeterminacy of the 2000 election was massively overdetermined: there were at least 16 distinct lawsuits in the month after Election Day alone, in Florida alone, involving dozens of independent issues, and the margin of malfeasance or error for each independently exceeded the ultimate margin of “victory.” And that litigation tally, more than ample on its own, ignores the multitude of issues for which litigation could provide little meaningful relief, much less the multitude of issues beyond Florida.

In 2000, registration forms were processed too slowly or held in a pending status, so that voters at the polls did not find their names in the books. Motor vehicle agencies failed to live up to their registration obligations under federal law. Eligible citizens were subject to unwarranted purges. Ballots were designed in a manner predictably likely to confuse. Language access was insufficient. So was access for people with disabilities. Poll sites were moved or closed without adequate notice or substitute. Voting equipment failed. Resources were inequitably distributed. Pollworkers made mistakes, in part due to inadequate training or pollsite procedures. Communication was inadequate. Lines stretched for hours. Official errors jeopardized the counting of legitimate absentee votes. Partisan officials made decisions benefiting their own favored candidates (and sometimes themselves). There were unsupported and irresponsible allegations of fraud, and organized attempts to discredit the process of evaluating disputed ballots.

These were not merely inevitable glitches. Some —few — were the product of intentional suppression. Most represented foreseeable lapse. We need not tolerate either.

We’ve fixed the hanging chads. (Sort of. If the problem is framed instead as “voting technology,” it’s still very much a liveconcern.)

But everysingleoneoftheseotherproblemsresurfaced in 2018, often in multiple jurisdictions. They have resurfaced in virtually every election since 2000 — not each everywhere or all the time, but far too often.

In 2013, I wrote that the broken election system had become a teenager. The broken election system has now become an adult, old enough that it would itself be able to vote.

It’s just that we only seem to notice the dysfunction in places like Georgia and Florida, at times when the outcome hangs in the balance. And once the outcome is settled, we tend to think that the problems in the process have been settled as well.

A few of these concerns may be addressed for the future through litigation: there are cases, both longstanding and of more recent vintage, in the pipeline, and there will be more litigation to come. And when on-the-ground procedures violate clear statutory or constitutional duties, courts have shown both capacity and will to set matters right for elections to come.

But most of these problems are not readily solved in the courts. Constitutional causes of action are awkward tools for micromanagement; existing statutes have considerable lacunae; adversarial evidentiary battles privilege readily measurable harms and impede consideration of those that are less readily quantified but no less real; and it can be difficult — and occasionally inappropriate — for judges to design systemic remedies for litigable issues that are isolated and discrete. The persistent problems in our election processes deserve legislative focus — state action even more than federal — long after the recounts have faded.

We have to remember, and correct, the underlying issues even when the outcome of a contest is not hanging in the balance. Especially when the outcome is not hanging in the balance.

Justin’s piece is a useful reminder that despite the progress that’s been made on addressing the biggest challenges facing the election process, the underlying problems still remain – and still require our attention. Thanks to him for sharing this piece – and thanks to all of you who work every day to help find ways to make American elections work better.

On that note, the blog will take a short break for Thanksgiving and will return on Monday, November 26. Be well and stay tuned …

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