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The Law of �Democracy �and the �2022 Election

�Nate Persily�

www.Persily.com

@persily

What is the �“Law of Democracy”?

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• Voting Rights
• Election Administration
• Political Party Regulation
• Redistricting
• Campaign Finance

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The “Exceptional” U.S. Law of Democracy: The Basics

• No right to vote in U.S. Constitution
• Devolution of power to states and localities
• No nonpartisan, neutral federal overseer of elections
• More elections and elected offices than any other democracy

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Roadmap

• Where we were…�
• Where we are…

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• Where we are going…

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The “Modern” Era

2000 – Bush v. Gore and rise in importance of election tech and administration.

2003 – Help America Vote Act

2004 – Presidential election with conspiracy theories surrounding voting machines.

2006 – Reauthorization of the Voting Rights Act

2010 – Citizens United v. FEC

2012 – Election characterized by long lines in polling places

2013 – Shelby County v. Holder (striking down key provision of VRA)

2014 – Presidential Commission on Election Administration Report

2016 – Election with attention to foreign sponsored disinformation

2020 – COVID Election, insurrection, and loss of trust

2021 – Passage of many new state regulations of voting;

demise of HR 1/For the People Act/John Lewis Voting Rights Act;

2022 – Election as critical test

2023 – Moore v. Harper (Independent State Legislature Doctrine case) and

Merrill v. Milligan (Section 2 of the Voting Rights Act)

2024 – ?

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The 2020 Election

Where things stood at the beginning of 2020:

• In person voting
• Pollworker shortages
• National Guard called out in Wisconsin
• Polling place shortages
• 97% of polling places shut down in Milwaukee�
• Mail balloting
• Outbound mail ballot failures
• High mail ballot rejection rates �(e.g., 20% in NYC, 84,000 ballots)
• Difficulty dealing with mail ballot volume
• Concerns about the postal service�
• Legal uncertainty

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• Election supply chain disruptions

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The 2020 Mobilization

• Complete transformation of election infrastructure to deal with pandemic.
• 29 new state laws
• Massive shift to mail voting
• Unprecedented poll worker recruitment effort
• Infusion of funds from federal government and Philanthropy

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Results

• Record turnout –
• Almost 160 million votes
• Two-thirds of eligible electorate.
• Highest turnout rate since 1904
• Doubling of mail voting –
• 46% of ballots cast (70 million)
• Decrease in share of mail ballots rejected – 0.8%
• In-person Election Day voting dropped by half
• Only 31% cast ballots in person on Election Day (50 million)
• Reduction of 21,000 polling places – 132,000
• Over 775,000 pollworkers with increases among younger age cohorts

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Shift in Modes of Voting�

The Fallout from 2020

• Partisan decline in election confidence
• New voting laws in 21 states
• Cyber Ninja-style “Audits”
• Harassment of election officials
• Resignation and replacement of veteran election officials

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Panoply of Conspiracies

• Foreign influence
• Chinese ballots
• Italian satellites
• Spanish servers used for vote counting
• Venezuelan influence
• Voting machines
• Dominion
• CIA plot
• “Sharpiegate” in AZ
• Election official malfeasance
• Ineligible voters (especially by mail)
• Dead voters
• Out of state
• Felons
• Noncitizen
• Multiple votes

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EIPartnership.net

Partisan Polarization in Trust

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Erosion of Trust in Elections

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Where things stand…

• “Voter suppression”

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• “Election Subversion”

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• Voter Confusion

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• Declining Trust/Election Denialism

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From voting to representation…

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DrawCongress.Org

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Apportionment

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2021 Redistricting Developments

• Rushed process due to late Census
• Newly available redistricting apps for public
• Rise of Commissions and State Courts
• Fairer map than ten years ago (Republican net advantage about 3 seats)
• Reduction in number of competitive districts

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Control of Redistricting 2021

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Redistricting Litigation

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Redistricting Litigation

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Merrill v. Milligan (2022)

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Whether Alabama violated the Voting Rights Act by failing to draw an additional majority-Black congressional district?

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Implications: Anything from

• Gutting the VRA to
• Muddled fact-intensive decision

Moore v. Harper (2022)

• Facts: North Carolina Supreme Court strikes down state legislature’s congressional plan as partisan gerrymander under state constitution and replaces with its own map.

• Issue: Did the state court violate the Article I, Section 4 of the U.S. Constitution, which says:
• The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...

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“Independent State Legislature Doctrine”

• State legislatures have plenary authority to regulate congressional and presidential elections
• Subject to congressional override and federal court review.

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• Implications
• Could limit state court review of state election laws.
• Could also restrict decisions of Governors, state and local election officials
• Could federalize a great deal of election litigation
• Relevant to Electoral Count Act and issues related to January 6^th insurrection

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What you can do…

• Stay Informed…
• EIPartnership.net
• HealthyElections.org
• Healthypolls.Stanford.edu
• www.hoover.org/saints-sinners-salvageables
• Volunteer…
• Be a pollworker!
• Show some love…
• To election officials
• To employees by giving�Election Day off
• Most importantly…
• Go out and vote!

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