Politics Foreign Affairs Culture Fellows Program

Last Minute Election Rule Changes Raise Big Questions

Leading up to the election, Democrats pushed dubious voting-rules changes through state courts

Nearly all forms of government—certainly including democracy, oligarchy, aristocracy, and monarchy—require two things for stability and longevity. The first is legitimacy, a sense among citizens that the system is inherently fair and just, and that power is derived in a defensible manner. The second is a means of succession, with transfers of power, when desired or needed, that are accepted and bloodless.

In the modern era, certainly since the 1788 beginning of the grand American experiment in self-government, a conviction has emerged that legitimacy can be derived only through the explicit consent of the governed. That was a breakthrough concept when it emerged in modern guise with the American Founders. But history demonstrates that, at various times and in various circumstances, popular feelings of legitimacy have undergirded many kinds of regimes and nations through the centuries.

The succession challenge is another matter. History emphatically reveals that it inevitably will emerge as a dangerous problem for any regime other than a democratic one. Human nature being what it is, the lack of a legitimately derived and clearly defined succession regimen will invite usurpers who will upend the old protocols and unleash bloody contentions for power.

And that, the U.S. Founders believed, would destroy the people’s protections against arbitrary and tyrannical government. Only in a democratic regime, with popularly rendered, regular and relatively frequent transfers of power, can the people be assured that they are fortified against such tyranny. Thus did the Founders mesh the legitimacy challenge and the succession challenge into a single coherent protection against oppression. At its foundation was the view that human beings are corruptible and that power corrupts. Thus, power must be dispersed widely and transferred regularly.

This has come down to us as a sacred concept. But now it is being undermined by people who are attacking the legitimacy concept indirectly by trying to game the succession system to their own partisan advantage.

We might start with President Trump’s allegation on Thursday that his opponents in the canvas just past set out brazenly to sabotage the election through the manufacture of illegal votes. “If you count the legal votes, I easily win,” declared the president. “If you count the illegal votes, they can try to steal the election.”

This is an irresponsible statement, without foundation, and it certainly undermines the nation’s sense of legitimacy. Thus, it deserves the opprobrium it has received from many quarters. So do the multiple lawsuits initiated by the president and his campaign that suggest widespread malfeasance in the vote counting of several states.

But, like many of the vociferous attacks on Trump from his passionate adversaries over the past five years, it masks a more complex reality. In Friday’s Wall Street Journal, Washington lawyers David B. Rivkin and Andrew M. Grossman report that over the past year or so Democratic forces unleashed “an unprecedented legal campaign to upend longstanding rules of election administration.” The result on election day was considerable confusion about voting rules in several states, and that confusion now lingers as the nation goes about the elaborate process of certifying the election results amid multiple lawsuits designed to clarify what those rules were or should have been.

A good example is Pennsylvania, which revised its election rules in 2019 to allow all voters to cast mail-in ballots and to establish a ballot-receipt deadline of 8 p.m. on election day. There ensued four lawsuits by Democrats seeking extensions on the ballot-receipt deadline. Three were rejected by the courts, but the fourth succeeded in getting a three-day ballot-receipt extension, along with a presumption that unpostmarked ballots should be accepted. The court essentially produced legislation from the bench, notwithstanding the clear language in the U.S. Constitution that vests authority for writing election rules in state legislatures, not in state courts or executive-branch authorities or bureaucracies.

The U.S. Supreme Court punted on this question when it essentially denied requests by Pennsylvania’s Republican Party and GOP-controlled legislature to block the lower-court ruling. But it still must review the case on the merits, and that poses far more complexities after the election than it would have posed beforehand. The Court’s four conservative justices have strongly contested the idea that state courts or agencies can constitutionally supersede state legislatures in formulating election laws.

The Washington Post’s Robert Barnes wrote on October 30 that this issue could bedevil the Court in the wake of the election. “Those strong endorsements of the legislatures’ powers [by conservatives] could be meaningful in post-election disputes,” he suggested, noting that several other cases, besides Pennsylvania’s, involve states where Democrats control the governorships but Republicans control the legislatures.

Thus do we see the ongoing liberal push to leverage the courts to supersede or override legislative prerogative now infecting the process of elections. As Rivkin and Grossman write, “The media is already accusing the Trump campaign of attempting to litigate its way to victory, but practically every issue in play arises from the Democrats’ march through the courts in the run-up to Election Day.” The reality is that it simply isn’t clear what the law is in the various states or who is empowered to enact it.

And that’s a big problem in a time when partisan polarization is at its highest pitch since the run-up to the Civil War, when political suspicion and mistrust flow freely, when faith in the country’s governmental institutions is waning, and when urban business owners feel a need to board up their stores against the possibility that the election outcome could ignite street riots and destruction.

Yes, Trump’s outcry about a stolen election was reckless and outrageous. But so was Joe Biden’s fanciful prediction last spring that Trump was going to “try to kick back the election somehow, and come up with some rationale why it cannot be held.” Or his allegation that Trump sought to enhance his electoral prospects by pressuring the Postal Service into making operational changes as a condition for coronavirus funding.

We all have reason for concern when the country’s venerable mode of presidential succession becomes a political football, when the imperative of protecting that element of our hallowed governmental system gives way to sly efforts to manipulate it.

We have had constitutional crises in the past involving deadlocked or disputed presidential elections. In 1800 an Electoral College deadlock was thrown into the House of Representatives and required 35 votes before Thomas Jefferson eventually emerged the victor. In 1824 the responsibility of selection again went to the House, where Speaker Henry Clay engineered the election of John Quincy Adams–then accepted the job of secretary of state from the new president he had installed in office. In 1876, Democrat Samuel Tilden won both the popular balloting and the Electoral College vote but lost the election when the outcomes of four states were challenged by Republicans and Congress stepped in to tilt the outcome to Republican Rutherford Hayes under the guise of an adjudicating commission that was supposed to be impartial but wasn’t. And in 2000 the disputed Florida outcome went to the Supreme Court, which ruled in favor of the Republicans and the election of George W. Bush.

There were unsavory aspects in all of these political dramas and certainly plenty of room for dispute, emotion, and partisan rationalization on the part of both sides. But American resilience prevailed each time, and none of these episodes seriously eroded the nation’s sense of legitimacy. The country pretty much picked up where it had left off.

But never have we seen the careless lighting of matches in a political environment as dry and combustible as the one we’re living in these days. It’s a dangerous turn of events and cause for concern and caution.

Robert W. Merry, former Wall Street Journal correspondent and president of Congressional Quarterly, is the author of books on American history and foreign policy.