All Elections Have Irregularities; That Doesn’t Necessarily Invalidate Them
By Larry Garber and Thessalia Merivaki
With only a few weeks to go before the Nov. 3 election, Americans are being bombarded by stories in the news and on social media about election irregularities.
On a daily basis, voters hear reports that registration applications have been addressed to deceased persons or even to pets, or that ballot harvesters are collecting blank mail ballots and completing them on behalf of dead people or those who have moved away. They fear that election results will be manipulated or rejected by the losing party, and these concerns are exacerbated when they hear that the winner of the election might not be known for several days, or even longer.
Such fears and uncertainties are reinforced by the scores of cases being litigated in state and federal courts by both parties. Democrats seek to block Republican efforts to suppress the vote and limit access to the polls, while Republicans argue that the rapid expansion of absentee balloting lacks sufficient safeguards and will permit fraudulent votes and “rigging.”
Unfortunately, these news stories and court actions only serve to reduce what is already a low level of public confidence in the electoral process, while increasing the prospect that a segment of the population will be deterred from participating in the upcoming election. Even more worrisome, some individuals may feel obliged to take it upon themselves to “protect” the election, risking violation of federal and state intimidation laws and increasing the likelihood of electoral violence.
The COVID-19 pandemic adds confounding ingredients to this troubling brew. Frequent changes in state election laws because of the pandemic have introduced some confusion in the rules governing how and where voters cast their ballots. This is further compounded by purposely deceptive social media practices designed to discourage voters from properly casting their ballots.
Voter registration sites may be inaccessible to voters who do not have access to online voter registration, and voter purges may have removed eligible voters without any notice or opportunity to rectify the mistake. Meanwhile, voters shifting to mail-in ballots are being warned that a large number of them are rejected because of deviances from prescribed procedures or could arrive too late to be counted because of post office delays. Even voters who decide to vote in person worry about potentially waiting in line for hours, and having their voter eligibility challenged by party poll watchers seeking to reduce turnout.
News stories and chatter about election confusion and irregularities lead many people, understandably, to ask what happens if a substantial number of voters are precluded from participating in the process or if their votes are altered or not counted.
Here, it is important to remember how independent election observation missions and courts of law approach the questions of election validity and integrity.
International observers examine all aspects of the electoral process, from the beginning of the voter registration period, through the political campaign, the administration of the casting and counting of ballots, and the resolution of electoral disputes. They will generally not deem an election invalid unless a significant segment of the population was denied their right to vote or there is clear evidence that the vote count was manipulated.
Courts in the United States approach the issue in a similar manner. Before calling into question the validity of an election, a court will demand concrete evidence that irregularities occurred, that they were intentionally committed for malign purposes, and that they were of sufficient magnitude to demonstrably affect the outcome.
This is not to say that intentional actions designed to prevent voter participation or to alter the results in one or more polling stations do not warrant post-election review. They do, and where appropriate, they should be prosecuted as felonies. However, such problems do not invalidate an election result unless their impact on votes is larger than the margin of victory.
This high burden of proof for overcoming the presumption of regularity and, in effect, deeming the election outcome null and void, will not be satisfying to anyone who has been denied their rights or has documented multiple irregularities tainting the process.
The rule of law in a democratic society permits parties to gather any evidence of irregularities collected by their observers, and to litigate these in court. Ultimately, however, we must rely on human election officials and designated judges, using their prescribed formulas, to deliver an outcome that is accepted by the competing candidates and a majority of the population, notwithstanding whatever misgivings they may have about elements of the process.
Larry Garber and Thesalia Merivaki are senior members of the Carter Center’s 2020 U.S. Election Expert Study Team.
