Crisis and Disconnect: Electoral Legitimacy and Proposals for Election Reform
Bradley A. Smith * | 24.5 | Article | Citation: Bradley A. Smith, Crisis and Disconnect: Electoral Legitimacy and Proposals for Election Reform, 24 U. Pa. J. Const. L. 1053 (2022).
There is a crisis in American elections. A large and apparently growing percentage of Americans are simply unwilling to accept that an election lost by their preferred candidates was an honest result. On the political right, the typical cry is “fraud.” On the left, it is “vote suppression.” These beliefs are almost entirely disconnected from the facts. By almost any standard, fraud in American elections is relatively trivial and less common than it has been throughout much of history. And contrary to claims of “suppression,” there have never been fewer obstacles to voting in the United States.
Given this, it is not surprising that many of the solutions being peddled to “fix” American elections are equally disconnected from the problem. Proposals to abolish the electoral college, add new states, or create nonpartisan redistricting commissions, as well as most proposals to make voting even easier, bear almost no relationship at all to the fundamental crisis of legitimacy caused by an unwillingness of a large portion of the public to believe the accuracy and honesty of vote tallies and results of elections.
In Part I of this essay, I argue that the crisis of legitimacy goes much deeper than Donald Trump and the election of 2020 and is not confined to the Republican Party. In Part II, I explain why most reform proposals are disconnected from the realities of the crisis. In Part III, I offer a simple alternative—stop major attempts to reform the electoral process but take modest steps to re-emphasize the importance of election day. Part IV provides a brief summation.
* Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School. Former Commissioner (2000-05) and Chairman (2004) of Federal Election Commission. I thank Jeffrey Rosen, the National Constitution Center, the editors of the University of Pennsylvania Journal of Constitutional Law, and all the participants in this symposium. Thank you to Andrew Martin and Eric Parker for research assistance.