NewYorkUniversity
LawReview

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Topic

Election Law

Results

Assessing the Validity of an Election’s Result: History, Theory, and Present Threats

Edward B. Foley

In the wake of President Trump’s acquittal in the Senate impeachment trial, and even more so because of the COVID-19 pandemic, the United States will need to hold a presidential election in unprecedented circumstances. Never before has an incumbent president run for reelection after the opposing party in Congress has declared that the fairness of the election cannot be “assured” as long as the incumbent is permitted on the ballot. Nor have states been required to plan for a November presidential election not knowing, because of pandemic-related uncertainties, the extent to which voters will be able to go to the polls to cast ballots in person rather than needing to do so by mail. These uniquely acute challenges to holding an election that the public will accept as valid follow other stresses to electoral legitimacy unseen before 2016. The Russian attack on the 2016 election caused Americans to question, in an unprecedented way, the nation’s capacity to hold free and fair elections.

Given these challenges, this essay tackles the basic concept of what it means for the outcome of an election to be valid. Although this concept had been considered settled before 2016, developments since then have caused it to become contested. Current circumstances require renewing a shared conception of electoral validity. Otherwise, participants in electoral competition—winners and losers alike—cannot know whether or not the result qualifies as authentically democratic. Accordingly, after reviewing the history that has led to the present difficulties, this essay offers a renewed conception of electoral validity. This essay then explains the theoretical basis for this renewed conception and applies it to some of the most salient threats to electoral validity that are foreseeable in the upcoming 2020 election, as well as in future elections.

In brief, the proposed standard of electoral validity distinguishes sharply between (1) direct attacks on the electoral process that negate voter choice and (2) indirect attacks that improperly manipulate voter choice. Direct attacks undermine electoral validity, whereas indirect attacks do not. It is essential, however, that the category of direct attacks encompasses both the disenfranchisement of eligible voters—which prevents them from casting a ballot—as well as the falsification of votes reported in the tallies of counted ballots.