The future of election administration: how will states respond?

It is not hyperbolic to say that the 2020 election was one for the record books. Estimates suggest that an unprecedented 158 million votes were cast in the general election, resulting in a presidential race decided by a thin margin in the midst of a global pandemic.

Despite the fact that the policy framework of the United States contemplates in-person Election Day voting as the primary way citizens express vote choice, state-level initiatives and concern over COVID-19 led to a shift away from this practice. Almost 102 million voters cast ballots early or by mail in 2020. This expanded, non-traditional voting brought worry of technological, logistical, and security challenges. The country’s electoral system responded surprisingly well, with few reports of administrative dysfunction or security breaches. Yet, the decentralized nature of the process raises practical and legal questions about how the system will function in future elections.

A decentralized election system

The Elections Clause of the United States Constitution operates to place the regulation of elections primarily in the hands of the states. As a result, the legal framework that governs administration of the electoral process varies across the country.

In part, this is by design. The Framers of the Constitution purposefully constructed an electoral system that allowed for divergent, localized interests. State-by-state regulation accommodates a range of citizen representational needs and can help diffuse political power.

However, as the 2020 election highlighted, this local flexibility is not without cost. The same state and local factors that a decentralized system accommodates can also result in variation in citizen experience with the electoral process. Disparities in the capacity of governmental units to administer elections raise legal questions that have consequences for the balance of authority across the political system.

Litigation showcases challenges for the future

Between March and October, litigants have filed over 300 COVID-19-related election cases in federal and state courts across at least 44 states. This litigation largely was unsuccessful. For example, despite President Trump’s repeated and unfounded claims of voter fraud in states like Pennsylvania, legal arguments that changes in election law create unconstitutional opportunities for voter fraud failed to persuade federal and state courts. At the same time, Democratic arguments that the states who did not relax pre-COVID-19 restrictions on mail-in votes created an unconstitutional burden on the right to vote in the midst of a pandemic generally failed as well.

The one area in which legal questions remain is in election administration. Sudden changes in policy often bring concern that, in their rush to promote new initiatives, policymakers fail to invest in the infrastructure required to administer the changes. Courts’ responses to administrative variation in how and when states require ballots to be delivered and under what standards states verify the identity of registered voters have been mixed. These disparate judicial responses highlight two key questions in the elections system.

First, who has the authority to change the rules? The United States Constitution contemplates that legislatures would regulate elections. Yet, over time, legislatures have delegated much authority in this area to administrators. This reflects a general transfer of power towards the executive branch that the COVID-19 pandemic exacerbated.

There has also been a shift in the role of the courts. For example, in the wake of Election Day, President Trump and the Republican Party filed lawsuits making a variety of claims relating to the counting and processing of ballots. The move was unusual, as candidates typically do not involve the courts until after the counting has finished and the outcome is uncertain. In part, this is because longstanding judicial precedent cautions courts against altering rules in the midst of the electoral process. Doing so injects unelected judges into the political system.

Second, how will states administer countless other elections over the next several years? The 2020 election was a high-profile event, with the presidency at stake and officials such as Secretaries of States and election commissioners stepping into the spotlight. In response, states funneled a tremendous amount of resources towards administrators to ward off criticism of their processes.

Decreases in state revenue due to the COVID-19 pandemic likely mean that states will have a hard time recovering and cannot afford to invest in election administration at such high levels. Even in the best of times, elections offices tend to be underfunded and understaffed. In fact, the most universal complaint from those who administer elections is a lack of resources.

This is potentially problematic, as elections administration is inevitably a nuanced endeavor. Yet because election administrators rarely operate under clearly defined procedural processes or have effective training, there is often variation with respect to how administrators implement the law and interact with citizens. It is precisely this lack of uniformity with respect to standards or criteria that can lead courts to intervene.

Politicians recognize the importance of how seemingly apolitical solutions to administrative problems have real consequences. “Hashing out the nitty-gritty” of administration is a political game, and the courts’ mixed responses to state election infrastructure in 2020 may add increased pressure to the system.