Supreme Abdication

This week, the Supreme Court again passed on the opportunity to review Pennsylvania’s electoral procedures.

The nominal question was whether state judges and executive officers can simply "fix" legislated election laws? If they lack the authority but do it anyway, what’s the remedy?

It seems like a good question, and even Justice Clarence Thomas called the Supreme Court’s refusal to address it "baffling."

Worse, the avoided question masks a far deeper, and far more fundamental concern held by many: Are American elections free and fair?

Elections are supposed to be our pre-eminent mechanism for peaceful dispute resolution. At any given moment, tens of millions of Americans debate whether taxes should be higher or lower, whether to limit or increase immigration, whether to increase or decrease military spending, and myriad other issues.

How can any society reconcile these competing camps without violence? The answer is free and fair elections.

Want your side to prevail? Convince enough of your fellow Americans that you deserve a chance to govern.

Succeed, and they’ll likely extend your hold on power. Fail, and they’ll give someone else a chance.

Free and fair elections give persuadable Americans—those not deeply committed to a specific ideology or party—the opportunity to change their minds.

That’s basic civics. It’s widely known, even if rarely discussed.

Dig a bit deeper though, and it’s not as straightforward as it seems. Foundational questions abound.

What is an election? The answer is hardly intuitive: An election is a measurement mechanism.

Elections measure public sentiment, at a given point in time, on the narrow question of which candidate should be handed an important job for a fixed term in office.

Who belongs to this "public?" How long is a "point in time?" Those questions too are tougher than they seem.

Should we measure the sentiment of all citizens? All residents? All eligible voters? All registered voters? All voters who choose to express a preference? Only eligible voters who registered prior to expressing a preference? And do we want an election day? Week? Month? In the age of the Internet, why not an election hour? Or minute?

If history is any guide, we need to answer these questions before we can call our elections free and fair.

America has determined—repeatedly—that its electoral procedures fall short. It has also made efforts—repeatedly— to amend its errors.

Through laws and constitutional amendments, we expanded the voting "public" from landowning men to citizens over the age of eighteen. We also addressed the specific unfairness of Black disenfranchisement.

But, under Jim Crow, states and cities enacted poll taxes, literacy exams, and other hurdles to voting. The solution was increased access to the polls: Removal of unfair hurdles, oversight of discriminatory laws, improved education, increased polling places, and lengthened "points in time."

These were all beneficial measures to the American way of life that help guide us to "a more perfect union." 

But, in any country, improved access without increased security, however, necessarily degrades security. Thus, a well designed system must strike the proper balance.

An electoral system with little oversight, and not enough authentication measures, invites illegitimate votes.

Yet having too much oversight, and malign actors enforcing that oversight, risks disenfranchising legitimate voters.

Either kind of system renders it impossible to truly measure the desired public sentiment.

For 60 years, nearly every change in election law has increased access at the expense of security.

Most proposed security measures, such as basic voter ID, have been condemned by the left for supposedly reducing access.

The system was badly unbalanced even before COVID-19 pandemic conditions empowered officials to change election laws under the guise of "public health" concerns. 

A recent article in Time magazine lauding efforts to "fortify" the 2020 election preened that they "touched every aspect of the election."

Measures included changing laws, securing funding, defeating lawsuits, expanding mail-in voting, pressuring media companies to shape public opinion, and broadcasting their plans to produce a unique election night.

It's a telling formulation. "Every aspect of the election" included nothing capable of increasing ballot security.

It appears there were little to no efforts by the left to clean voter rolls, watermark ballots, impose custodial rules over the handling of the ninety million ballots circulating weeks before the election, strengthen ID requirements, improve signature checks, enhance oversight of ballot counting, or heighten quality assurance testing of voting machines.

This inattention to security is either shocking blindness or possible ill intent.

An insecure, high-stakes competition with relatively modest penalties for cheating is begging for corruption. Any such system like that lacks even the appearance of credibility, whether or not fraud actually occurred, to the American people. 

Congressional Democrats are trying to enshrine the kind of access-expanding procedures, without increasing security, that shattered the credibility of the 2020 election for many Americans.

The Supreme Court’s feckless abdication has given them a green light. As Justice Thomas said, "One wonders what this court waits for." 

Bruce Abramson PhD, JD is a principal at JBB&A Strategies/B2 Strategic, a director of the American Center for Education and Knowledge, and author of the forthcoming book The New Civil War: Exposing Elites, Fighting Utopian Leftism, and Restoring America (RealClear Publishing, 2021).