Election Law and Election Subversion
abstract. Scholars of American election law used to take the rule of law as a given. The legal system, while highly imperfect, appeared sturdy, steady, and functional. Recent election cycles—culminating in dramatic attempts at election subversion—have revealed this assumption beginning to break down. Without the rule of law as a dependable constant, the study of election law quickly expands. Legal experts now are simultaneously occupied with: first, the substance of election laws; second, the design of election institutions; and third, the threat of participants unlawfully undermining elections from within. This Essay identifies and contextualizes the rule-of-law pivot that is reflected in this rapidly expanding body of scholarship, including by exploring the definition of election subversion and its relationship to the rule of law. It then examines three basic prescriptive tacks that legal experts have taken in response to the threat of election subversion. These approaches can be understood as constraint-based, incentive-based, and corrective. So framed, each approach presents fundamental advantages and disadvantages for those seeking to ensure that the rule of law continues to govern elections. No single approach, in other words, provides clear and straightforward direction. This Essay concludes by offering a path forward: one that, by necessity, is multifaceted, interdisciplinary, and messy. This complexity reflects the depth of the underlying conundrum, which asks election-law scholars to consider how, if possible, to harness the rule of law to ensure the rule of law.
Election law relies on the rule of law—but so does election subversion. This uncomfortable overlap poses challenges for legal experts seeking to promote free and fair elections. On a superficial level, subversive actors invoke legal principles as they seek to exploit the processes and legitimization that the rule of law provides. Superficially, then, legal experts are able to provide clarity and insight; their legal analysis fits well into this space. Yet subversive actors also seek, simultaneously, to exploit breakdowns in the rule of law. Subversive actors seek to use these breakdowns to install their preferred candidates into elected office even when the law, properly executed, would require otherwise. It is this latter quality of election subversion that often disorients legal experts. The unease is appropriate; breakdowns in the rule of law are, by definition, extralegal. Yet the incongruity provides no respite for legal scholars, particularly at a time when election subversion in the United States requires urgent attention and sustained analysis. In the field of election law, experts have had to make a rule-of-law pivot.
Election subversion can be understood, at least in a narrow sense, as the exploitation of a breakdown in the rule of law to install a candidate into elected office.1 In recent years, a potent collection of forces—including political extremism, fragmentation, and disinformation—have combined in the United States to produce conditions conducive to election subversion.2 The danger became self-evident in January 2021, when violence at the U.S. Capitol struck at the heart of American democracy and brought the threat of election subversion into widespread public consciousness.3 Following this attack, democratic processes across the country continue to suffer strain.4 Officials in positions of great power have failed to condemn,5 and to the contrary have embraced,6 attempts at subverting the 2020 elections. These efforts include aggressively promoting disinformation with respect to the integrity of elections,7 as well as campaigning on promises to condemn or even unwind elections that, by all reliable accounts, were legitimately conducted.8 Various state legislatures, for their part, have moved election responsibilities from nonpartisan actors to overtly partisan ones and criminalized election administration in ways that undermine officials acting in good faith.9 A growing number of these officials have resigned due to exhaustion, exasperation, and fear of violence.10 Understandably, concerns over these overlapping developments have begun to dominate scholarly discourse.
Scholarly discourse, as a result, has expanded. Without the rule of law as a dependable constant, the study of election law quickly becomes three-dimensional. Experts find themselves simultaneously occupied with concerns along several dimensions: first, with the substance of election laws; second, with the design of election institutions; and third, with the threat of elections being unlawfully undermined from within.11 Most legal experts are fluent in the first dimension (substantive law) and at least proficient in the second (design of institutions). It is this third dimension—conceptualizing election law without the guaranteed existence of the rule of law—that poses particular difficulty for any scholar.
This Essay identifies three prescriptive tacks that legal experts, forced to grapple with this challenging set of predicaments, have taken recently in response to the threat of election subversion. First, scholars have explored how prophylactic legal reforms might constrain election participants and, accordingly, minimize opportunities for subversive conduct. Second, scholars have sought to use law to alter the incentives facing actors tempted to engage in subversion. Finally, scholars have examined how legal institutions might fare in correcting attempts to subvert elections after the fact. Each of these three scholarly approaches—constraint-based, incentive-based, and corrective—presents promise and pitfalls for those seeking to ensure that elections remain grounded in the rule of law.12
In discussing these efforts, this Essay does not attempt to provide a comprehensive account of the burgeoning body of scholarship addressing election subversion.13 Instead, it seeks to identify, and to describe broadly, a sharp and recent adjustment in the field of election law—what it calls the rule-of-law pivot. The works propelling this pivot can be recognized by two dominant features: first, an acknowledgement of the threat that participants may be capable of successfully subverting an election in the United States; and, second, an insistence that the stakes are high, perhaps even existential, given the possibility that election law may effectively collapse if elections can be subverted.14 (A third commitment—taken for granted by virtually every expert in the election-law community—is that elections should, indeed, be governed by law.) Together, these commitments motivate scholars to turn toward the prescriptive. An examination of this pivot therefore reveals election-law scholars consumed not only with the longstanding question of how to “harness politics to fix politics,”15 but also with a new and daunting challenge: how, if possible, to harness the rule of law to ensure the rule of law.
Part I of this Essay reviews the recent path of election-law scholarship. In so doing, it both reveals and contextualizes the dramatic transition reflected by the rule-of-law pivot. Part I concludes by addressing the meaning of “election subversion,” ultimately endorsing a narrow definition of the term. Part II surveys legal scholarship that explores how to counteract this growing phenomenon. This Part explains how recent prescriptive work reflects three broad approaches to the problem of election subversion, and it analyzes how each approach benefits from potential advantages but also suffers from fundamental weaknesses. Part III offers explanations for why and how the field of election law must expand to meet this complicated set of challenges.
I. election law and the growing threat of election subversion
Election law already absorbed a major conceptual shift over a decade ago, in conjunction with what Heather K. Gerken and Michael S. Kang, among others, described as an “institutional turn” in the field.16 In earlier years, academic work had prioritized the examination of substantive election laws, particularly rights-based doctrines emanating from the U.S. Supreme Court.17 Newer scholarship, by contrast, tended to look beyond the courts and instead home in on election law’s many nonjudicial institutions and processes.18 Few commentators, of course, agreed on the specifics, and the ensuing debates produced an extensive literature on whether and how legal structures can channel political self-interest to improve election systems.19 Typically underlying these disparate discussions was the assumption that law in the United States has continuing force and, accordingly, that legally constrained institutions could not serve as a fountainhead for subversion.20 Scholars tended to assume, in other words, a sturdy hold by the rule of law. It has taken a striking rise in efforts to subvert elections, as manifested in recent cycles, to begin to break down this assumption. This Part describes this transition before examining how a narrow definition of election subversion might help to further facilitate the scholarly discourse that has emerged.
A. Running into the Rule of Law
In the midst of its institutional turn, the election-law community tended to assume a highly imperfect, but nevertheless functional, legal system.21 The discourse therefore could proceed in a relatively straightforward manner, even as scholars sought to integrate the implications of deeply complicated phenomena into already sophisticated discussions of institutional design.22 During this time, the relevant period for reform felt expansive: while, for some, “a decade seemed enough time for major reform,” others looked ahead a quarter-century or longer.23
Of course, some scholars expressed prescient unease over the trajectory of American election law. Bruce E. Cain, for example, warned of the risks of destabilization associated with election law’s populist impulses.24 Yet even this work tended to disavow any fundamental concern over the rule of law itself: to Cain, the country’s “commitment to democracy per se” appeared “solid,” and “[e]xcept for the paranoid fringes on both ends of the ideological spectrum,” there was “little fear about the United States lapsing into autocracy.”25 Other scholars examined the possibility of a more dramatic crisis threatening the democratic system, but not in the normal course. Instead, these scholars explored what might happen if a “perfect storm” of electoral outcomes were to force the United States into an election conundrum without a clear legal solution, a scenario foreshadowed by the disputed 2000 presidential election.26 Even in this context, however, scholars focused primarily on problems associated with a lack of clear legal standards, not on the erosion of the rule of law itself. And, of course, consistent with a “broad consensus” that American government was in “decline,” a multitude of scholars identified and examined the many deep dysfunctions plaguing American politics, often offering developments in election law both as a symptom and a cause.27 Still, even there, the rule of law seemed a safe assumption.28
Since that time, this assumption largely has flipped. Pressures manifesting in recent years have fueled this change, with the 2016 and 2018 elections sparking a fuse and the 2020 elections serving as a powerful accelerant. Now, instead of assuming that the rule of law will hold and that the timeline for reform efforts might appropriately span many election cycles, election-law scholars tend to assume that the rule of law is under great and immediate strain.29 The result is a growing body of works, urgently drafted, attempting to diagnose the comorbid conditions threatening elections in the United States and often offering prescriptions.30
Unifying this newer collection of work is a relative consensus, at least at a high level, that a serious problem exists.31 However, this consensus does not extend cleanly to proposed solutions. This disconnect between problems and solutions makes sense; it is always difficult to agree on solutions to intractable problems. Moreover, for this particular set of challenges—actors exploiting breakdowns in the rule of law to subvert elections—the prescriptive challenges are even more fundamental. Given that subversive tactics both rely on and reject legal mandates, election subversion inescapably implicates difficult questions above and beyond questions of law.32
As a result, legal experts continue to have important insights regarding this set of problems. But formal legal analysis necessarily fails to resolve some of the most pressing dilemmas that these problems pose. These concerns reflect more than just abstract theory, as headlines continue to provide inspiration for challenging hypotheticals. Imagine, for example, a state legislature simply refusing to act in response to a court’s direct order. This defiance presents a legal problem, but it offers no clear legal solution.33 Or imagine an election participant illegally introducing an error into the election process and then later citing that same error as a ground for overturning the results.34 Again, the law struggles to respond.35 These hypotheticals can go on: imagine that a high-ranking official, claiming to apply an election rule faithfully, in fact applies it in a legally outlandish and self-serving manner and then refuses to retract the decision.36 If legal solutions exist for these scenarios, they are not easy ones. The central insight here can be reduced to a simple observation: the law has its limits. Even the most eloquent articulation of legal principles is unlikely to convince actors who, for whatever reason, feel little loyalty to the rule of law in the first place. To be effective, prescriptive reforms must somehow fortify the law and at the same time transcend its breakdown. This insight—that the threat of election subversion generates a need for creative, outside-the-box solutions—has helped to fuel election law’s recent pivot.
B. Defining Election Subversion
Before examining scholarship illustrating this rule-of-law pivot, it is useful to further examine what, exactly, constitutes election subversion. Given the frequency with which this term is used, it is surprising just how rarely it is defined. Yet it is helpful to have a working definition.37
This Essay proposes a narrow definition for election subversion: the exploitation of a breakdown in the rule of law to install a candidate into elected office.38 This conduct might alternatively be referred to as brazen election subversion to distinguish it from related efforts that are, at times, referred to as “election subversion” but do not necessarily rely on a breakdown in the rule of law.39 Defined in this narrow way, election subversion might occur, for example, if an election official were to intentionally mispresent vote tallies in order to claim that the loser had won.40 Another example might be if participants were to submit documentation they know to be false to official entities in an effort to upend the election-certification process.41 Yet another might be if a state legislature were to purport, mere days prior to Congress’s count of Electoral College ballots, to appoint electors contrary to the popular vote.42
What unites these disparate schemes is their reliance on a twisted version of legality: an invocation or application of legal principles that is not only erroneous, but clearly erroneous. The subversive actors in the preceding examples are not basing their conduct on a legal theory that is controversial but still, at core, plausible—on an unexpected choice of interpretative method, for example, or a novel application of legal principles. They are not simply engaged in “constitutional hardball.”43 Instead, under any construction of the rules of elections that is plausibly consistent with the legal method, their actions are unlawful.44 The law quite clearly prohibits officials from intentionally misrepresenting vote tallies. Of course participants may not lawfully submit knowingly falsified documentation in official proceedings. And under no viable legal theory may legislatures appoint alternate slates of electors well after the Electoral College has met.45 On these points, reasonable minds do not disagree. For any of these subversive efforts to achieve their desired ends, therefore, the rule of law necessarily must break down. And yet, even as these actors attempt to exploit this breakdown, they are purporting to rely on the legal rules and structures of elections to justify the advancement of a candidate who otherwise would have no legal basis to declare victory. In this sense, these actors are attempting to exploit (and even go so far as to induce) a breakdown in the rule of law in order to install a candidate into elected office. They are, in short, attempting to subvert an election.
This definition of election subversion—or, alternatively, what might be termed brazen election subversion—is intentionally narrow.46 It limits the term’s scope to conduct that is exceedingly difficult to defend normatively. Indeed, election subversion, so defined, has few, if any, defenders among those committed to the rule of law. As a result, this definition allows more focused conversations over how to respond to the very serious concerns that this form of election manipulation raises. Broader definitions, by contrast, necessarily implicate a wide range of debates, including many that still divide those working in good faith in the election-law community.47 Those more expansive debates are essential. But so is targeted discussion regarding how best to respond to the most normatively indefensible forms of election manipulation.
Of course, even the narrowest of definitions permits debate over its application. To that end, it is easy to identify controversial developments that only arguably reflect a breakdown in the rule of law. In the context of recounts, for example, reasonable minds can disagree as to what constitutes a plausible construction of the relevant legal principles. Reasonable minds, therefore, also can disagree as to what separates an understanding of recount law that is merely controversial (and perhaps, as a result, divisive, unpersuasive, and otherwise problematic, but not the basis for election subversion) from an understanding that cannot plausibly be squared with the legal method.48 Another prominent example involves the independent state legislature (ISL) theory—a theory under which a state legislature’s power to regulate federal elections derives directly from the U.S. Constitution in a manner that may displace other state authorities.49 Some scholars have defended this theory, at least in selected manifestations, and others have identified it as a potential mechanism for election subversion.50 Importantly, even within these debates, the most prominent objections arise from fears not that the ISL theory will be developed and applied in a legally coherent manner, but instead that partisan actors will purport to rely on the theory in ways that are, ultimately, inconsistent with the rule of law.51 Yet another set of difficult distinctions involves legal decisions premised on erroneous facts. If an official or other participant relies on contested facts to reach an election-related decision, that decision does not necessarily rely on a breakdown in the rule of law. However, it is conceivable that an actor might base a decision on a factual predicate so outlandish and unfounded as to render the decision, in a sense, inconsistent with the legal method. While this line—dividing a contested factual predicate from a subversive factual predicate—is particularly challenging to draw, the law does provide some guidance, at least at the extremes.52 In short, reasonable minds can disagree as to what, exactly, constitutes election subversion, even under a narrow definition. Nevertheless, with respect to the most audacious forms of subversion, such as those identified above,53 there tends to be near-unanimous agreement among experts assessing their legality in good faith. While the subversive actor might be claiming to respect the rule of law, in truth that person is attempting to exploit its breakdown.
On a more general level, this narrower definition excludes a wide swath of conduct that, while problematic, does not display the same erratic relationship with the rule of law as does election subversion. An openly illegal and forceful takeover of government, for example, is obviously of great concern. So is any other democratic breakdown that outright rejects the structure and legitimation that law provides. Still, these developments do not, under the narrow definition provided here, constitute election subversion; they do not constitute conduct wherein a candidate has been improperly installed in elected office. This exclusion is appropriate. An unabashedly unlawful declaration of power, while exceedingly dire, poses a different set of quandaries for legal experts than does election subversion.
On the flip side, this narrower definition also excludes conduct, however troubling, that remains fastidiously consistent with the rule of law. To be clear, adherence to the rule of law cannot, in and of itself, ensure a free and fair election. A long line of scholars, among others, have long exposed the fallacies of this view.54 Still, to the extent that most of the many imperfections in elections do not exploit a “breakdown in the rule of law,” they do not constitute election subversion, at least under the narrow definition proposed here. Again, the exclusion is appropriate, particularly if a central goal is to concentrate the scholarly discussion. Without reliance on a breakdown in the rule of law, these decisions and developments may be corrosive to free and fair elections, but they do not pose the same set of multidimensional quandaries for legal experts as does election subversion.
As a final acknowledgement, this distinction does begin to disintegrate at an extreme. To that end, budding autocrats have relied on the rule of law, at least nominally, to advance illiberal ends. The result can induce, in legal experts, a head-spinning dynamic similar to that induced by election subversion. Kim Lane Scheppele calls this phenomenon “autocratic legalism.”55 Identifying this convergence is among the central insights advanced by Jessica Bulman-Pozen and Miriam Seifter, who have deftly applied their work on state governments to what they refer to as the “new election subversion.”56 Bulman-Pozen and Seifter define this term broadly to refer to actions, including legally sanctioned actions, that “threaten the franchise and electoral integrity as well as nonpartisan, expert election administration.”57 Illustrative examples include state legislatures passing statutes to arrogate to themselves power over elections, officials executing sham audits, and lawmakers criminalizing previously lawful manifestations of election administration.58
This Essay’s narrower definition of election subversion does not recognize these highly problematic developments as constituting election subversion (or, to use the alternative phrase, it does not recognize these developments as constituting brazen election subversion). These actions do not depend, at least in their current manifestations, on a breakdown in the rule of law. This narrower definition does, however, readily recognize that these developments are likely to enable election subversion, both by increasing opportunities for subversion and by increasing the likelihood that subversive attempts will be successful.
This narrower definition responds in a similar way to the phenomenon of “election denialism,” which might be understood as an insistence on denying the lawfully determined outcome of an election.59 Without more, election denialism does not constitute election subversion. However, the two phenomena are closely related. People seeking to subvert elections often engage in election denialism in an attempt to hide or justify their subversive efforts.60 More broadly, widespread election denialism almost certainly makes it more likely that future attempts to subvert an election will be successful. Still, without an accompanying effort to exploit a breakdown on the rule of law to install a candidate into elected office, election denialism remains a dangerous phenomenon with ominous implications, rather than a concrete manifestation of election subversion.61
Semantics aside, scholars who study these related phenomena well recognize, in the words of Bulman-Pozen and Seifter, the possibility of election-related threats coming “from within the legal system, not outside of it,” as subversive actors attempt to “coopt the vocabulary and instruments of law,” rather than dismiss the rules out of hand.62 They also understand that the law necessarily struggles in response to this sort of threat to the electoral system “[p]recisely because of its ostensibly legal, even legalistic, character.”63 It is this erratic and dysfunctional relationship with the rule of law that is central to the phenomenon of election subversion and, accordingly, what has helped to motivate the recent shift in scholarly focus.
II. three law-based approaches for bolstering the rule of law in elections
The deep challenges, both practical and conceptual, posed by election subversion reveal many questions in need of answers. In response, the election-law community has pivoted to produce a rapidly expanding body of work exploring those dilemmas. An examination of this work reveals legal scholars primarily advancing three law-based approaches to the problem of election subversion. This Essay will refer to these approaches as the constraint-based approach, the incentive-based approach, and the corrective approach.
The first approach explores how prophylactic reform of election rules might constrain participants in ways that minimize opportunities for subversion. The second examines how altering incentives—including by applying principles of social choice, incorporating models of voter behavior, and otherwise relying on nonlegal theorization—might discourage subversion. The third explores how institutions might, after the fact, negate or otherwise correct the effects of attempts at subversion. These categories are not hermetic; at times, they overlap. And the list is not exhaustive. Some alternative approaches—for example, those involving improved civics education or collective peaceful protest64—look beyond law. Still, in recent years, much of the prescriptive work advanced by legal experts in response to concerns over election subversion fits into one or more of these three broad categories. For those seeking to bolster the rule of law, each has significant advantages and disadvantages in counteracting the threat of election subversion.
A. The Constraint-Based Approach to Election Subversion
Legal experts tend to be well acquainted with the first approach: proposing legal reforms and preemptive legal analysis in attempts to foreclose an anticipated problem. In the context of elections, this approach explores changes in the law, as well as clarifications of preexisting rules, to determine what might best constrain actors tempted to engage in subversion.65
Much of the recent debate surrounding reforms to the Electoral Count Act of 188766 illustrates this approach. This antiquated statute sets forth procedures for counting electoral votes in a presidential election and, accordingly, governed the congressional proceedings that took place on January 6, 2021 to formalize Joe Biden’s electoral victory.67 Partly due to the events on January 6,68 scholars have grown increasingly concerned about the potential for election subversion to be facilitated by ambiguous language in the Act, including language that allows members of Congress to submit “objections” to the reading of the certification of a state’s electoral votes.69 Among other possibilities, partisan actors might try to exploit the abstruseness of this language to achieve subversive ends.70 In response, the most prominent proposals involve prophylactic attempts to foreclose some of the opportunity for abuse by, among other things, removing the relevant statutory ambiguity.71 Related work focuses less on the virtues of formally amending the Electoral Count Act and more on how the preexisting statutory language can be interpreted to accomplish similar ends.72
As noted, the basic prescriptive approach reflected in this work is familiar to lawyers: anticipate the problem (here, attempts at subverting an election via Congress’s counting of the electoral vote) and prophylactically offer legal constraints meant to foreclose the opportunity for actors to induce the problem. Unsurprisingly, then, this constraint-based approach appears frequently in scholarship on election subversion. With respect to the possibility of state and local officials adopting abusive tactics when certifying vote totals, for example, Richard L. Hasen has proposed that states “change laws to eliminate any discretion in the certification process.”73 With respect to the potentially subversive implications of the nascent ISL theory,74 Michael T. Morley has advocated construing surrounding laws and doctrines to foreclose the possibility of a legislature purporting to “appoint its own preferred electors as a partisan maneuver without regard to the popular vote,” among other prescriptions.75 Members of Congress, for their part, have proposed bills seeking to implement some of these proposals.76
Of course, proposing a legal amendment or construction is far easier than actually convincing a legislature or other body to adopt it. To that end, this approach has significant implementation challenges. But there is an even more fundamental problem with a constraint-based approach in the context of election subversion: ultimately, in response to threats to the rule of law, it assumes the rule of law will hold. It assumes, more specifically, that actors will follow the law as clarified or amended. Yet actors tempted to engage in election subversion are, by deduction, tempted to subvert legal mandates even while claiming to respect the law. An election official might, for example, cite legal-sounding reasons as the basis for refusing to certify a vote total even if the relevant law, as carefully amended, does not possibly provide them with this discretion under any reasonable construction.77 Or a state legislature might insist on its own subversive and implausible understanding of an unsettled legal theory, notwithstanding even the most persuasive of scholarly arguments foreclosing such a construction.78 In either of these scenarios, the legal constraint was in place, but it failed to prevent the attempt at subversion. Some additional mechanism—an after-the-fact response—is needed. Otherwise, the subversive attempt ultimately may succeed.79
It is true that, within this body of work, some scholars attempt to respond to this fundamental limitation of the constraint-based approach by exploring the extent to which power—including the power to engage in subversive attempts—can be shifted from one election participant to another. Ideally, the participant benefiting from this shift is more likely to be trustworthy. A proposed reform might, for example, clarify that an incumbent vice president has only a ministerial role in the process of counting the electoral votes governing their own reelection efforts.80 When the constraint-based approach effectively incorporates this sort of analysis, it more plausibly justifies its reliance on the rule of law. Even without a shift in power, moreover, the constraint-based approach is able, at least on the margin, to make subversive attempts less plausibly consistent with law and therefore, presumably, harder to execute.81In addition, scholars may at times propose these reforms not necessarily as a strategy to resist election subversion, as this Essay has narrowly defined it, but rather as a strategy to counteract the emergence of related phenomena such as autocratic legalism.82
Still, in response to efforts to exploit breakdowns in the rule of law, the limitations of the constraint-based approach are fundamental: at their core, these efforts seek to counteract election subversion by assuming that the prophylactic constraints will not themselves be subverted. In this sense, the constraint-based approach, by virtue of its basic structure, will struggle to counteract many of the most brazen attempts at subversion.
B. The Incentive-Based Approach to Election Subversion
A second broad approach to election subversion relies on incentive-based legal reforms. Like the constraint-based approach, this approach seeks to use law to prevent attempts at subversion. However, it does not seek directly to deprive actors of the opportunity to subvert. Instead, it seeks to use the law to raise the costs of engaging in subversion and to lower the costs of upholding the rule of law. It is in this sense that this approach seeks to affect the incentives facing those who might be tempted to adopt subversive tactics, as well as those inclined to resist them.83
So defined, this category is very broad, with manifestations of the incentive-based approach taking on a wide variety of forms. Throughout, the defining feature of these prescriptions is their indirect relationship to the problem of election subversion. One illustrative example again comes from Hasen, whose lead proposal in an essay exploring how to minimize the risk of election subversion is strikingly concrete: “All jurisdictions should run elections that produce paper ballots.”84 This proposal would not impose a direct legal constraint on any potentially subversive actor. Instead, on Hasen’s reasoning, by ensuring a verifiable and tangible record for elections, it would increase the difficulty (i.e., cost) of subverting an election and, by extension, decrease the difficulty of maintaining the rule of law.85 He bases this conclusion on the reasonable empirical assertion that “[p]aper ballots not only assure that counts can be verified but also help to bolster public confidence.”86 That empirical assumption is what links his proposal to the problem of election subversion.87
Hasen is far from alone in exploring the extent to which bolstering public confidence in the legitimacy of elections can renew the electorate’s commitment to the rule of law and, by extension, make subversion schemes more difficult to implement.88 Others’ works take a similar tact and, accordingly, necessarily rely on empirical understandings of what, in fact, bolster public confidence and how public confidence, in fact, deters or otherwise counteracts subversive attempts. In related works, legal scholars have attempted to take on the sprawling problem of misinformation, including its effects on elections.89 In this context, scholars often explore or posit an empirical connection between misinformation and the threat of election subversion. Among other potential linkages, when public discourse is awash in misinformation, the costs of attempting to subvert an election may go down—and, at least as importantly, the costs of resisting election subversion may go up. Another set of prescriptions explores how to reduce the cost of adhering to the rule of law in elections by providing more protection—legal and physical—to election officials and workers.90 Still more works signal another area for examination: how reforms to campaign-finance law, as well as other regulatory regimes affecting the strength of political parties, might help to adjust the rewards upwards for candidates ready to uphold the rule of law, and downwards for candidates taking the opposite approach.91
In recent years, some of the most dramatic illustrations of the incentive-based approach seek to raise the cost of subversion in a potentially more fundamental way: by reforming the rules governing who is entitled to serve in positions of power in the first place. Election-law scholars have long explored how altering these rules—through, for example, reforms requiring the appointment of nonpartisan election administrators—might affect how elections are run.92 The newer scholarship goes a step further. It seeks, in effect, to apply social-choice theory in an effort to increase the odds that candidates winning elections will be committed to the rule of law.93 In election law, this line of inquiry implicates the rules for identifying an election’s winner from the votes cast—whether by a simple “first-past-the-post” model (typical in American jurisdictions); a “proportional representation” model (rare in American jurisdictions); or some alternative option.94
Edward B. Foley, among others, has contributed a great deal to this body of work exploring electoral systems and the rule of law.95 In recent years, Foley has published a collection of works he characterizes as a “neo-Madisonian project.”96 This work intends to identify and promote rules that best ensure a particular electoral outcome: that each winning candidate “is most preferred by a majority of voters and, simultaneously, is unlikely once in office to subvert the electoral system itself,” two qualities that Foley considers essential in a democratic system.97 Importantly, Foley’s analysis assumes, based on available empirical data, no inherent conflict between these two qualities. To the contrary, he assumes that the candidate most preferred by a majority of voters will, as a general rule, be unlikely to engage in subversive tactics. Underlying Foley’s analysis, in other words, is the empirical assumption that most voters prefer elected officials who will uphold the rule of law. This assumption is critical for sustaining Foley’s argument; without it, improved electoral systems might very well help to ensure the majority’s will is effectuated, but there is no necessary correlation between that majoritarian result and the bolstering of the rule of law going forward.98 With this assumption in place, by contrast, Foley can use the majority’s preferred candidate as a proxy for a nonsubversive candidate and, accordingly, seek to identify election methods that help to minimize the threat of election subversion.99
Incorporating social-choice theory into election law is hardly new; to the contrary, prominent legal scholars for decades have integrated insights from this field.100 What is more novel, at least for the most fastidiously nonpartisan of the field’s scholars, is harnessing social-choice theory with an eye toward influencing the political agendas of those elected to office. To that end, the most recent scholarly works concern themselves not only with how the design of collective decision-making processes can effectuate the preferences of the majority, but also how it can increase the likelihood that candidates who take office will be committed to free and fair elections.101
In short, much of recent scholarship reflects, at least in part, an approach to the problem of election subversion that relies on incentives. It seeks to strategically alter the costs of upholding the rule of law versus engaging in subversion. This approach is appealing in part because of its great potential: in theory, an incentive-based approach can counteract the threat of subversion at its root. Unlike the constraint-based approach, this approach does not problematically assume that the rule of law ultimately will hold. To the contrary, this approach explores how to incentivize participants precisely because it assumes that the rule of law is tenuous.
Yet significant challenges nevertheless underlie an incentive-based approach to election subversion. At the outset, implementation challenges can, again, be quite onerous. At times, these challenges are mundane: for example, it always is difficult to secure funding, even for a worthy cause,102 and the highly partisan nature of election administration complicates the process even further.103 Other implementation challenges are extraordinary. Politicians are notoriously loath, for example, to alter election-related processes in ways that might affect their chances at reelection.104 To take one of many illustrations, it is far from straightforward to convince sitting state legislators (typically elected via a first-past-the-post system) to adopt a dramatically different system (such as a ranked-choice voting system) to govern their own reelection attempts.105 In addition, the aggressiveness with which the Supreme Court has construed various constitutional-law doctrines, including in its First Amendment jurisprudence, has made it all the more difficult not only to design major structural reforms, but to summon the will to implement them.106
An even more fundamental challenge to this approach involves its central defining quality: an indirect relationship to the problem of election subversion. Whether this indirect approach proves to be effective—in other words, whether an incentive-based strategy will, in fact, alter the costs of subversion and, if so, whether participants will, in fact, change their behavior based on those assumptions—implicates a wide swath of empirical questions. These questions often lack clear answers. To consider a prior illustration, Foley’s “neo-Madisonian project” assumes that electoral majorities care about, and disapprove of, election subversion. The issue of whether this assumption is true (and, even if it is true, how this collection of voter preferences might translate into electoral outcomes under various voting systems) implicates empirical questions subject to debate. Other incentive-based prescriptions—including those involving perceptions of legitimacy, the implications of campaign-finance practices, the effects of disinformation, and beyond—all rely on empirical assumptions that, in many respects, cannot be definitively resolved.107
Formal legal analysis, for its part, has almost nothing to provide in response to these empirical questions. Other disciplines, including political science, have much more to say.108 However, even works from those disciplines often offer little in the way of consensus, particularly once the question becomes how various observations can or should be applied in practice. In this sense, while an incentive-based approach to election subversion has great potential—by seeking to counteract attempts at subversion at their root—it struggles mightily to provide a clear path forward. Reasonable minds invariably disagree, at least on the margins and often in the very center, on empirical questions that would, if settled, provide more guidance.
In short, the incentive-based approach has great potential. The question is how much of that potential can possibly be realized. It can be profoundly challenging to implement even the most sensible of good-governance measures. And its passage is no guarantee it will work.
C. The Corrective Approach to Election Subversion
The third broad approach to the problem of election subversion involves after-the-fact remedies. Unlike the previous two approaches, this approach does not seek to prevent subversive attempts. Instead, it seeks to counteract the effects. Recent scholarship in this area tends to explore the potential for this role to be filled by preexisting institutions, rather than newly created ones. The institution that scholars most often examine is the judiciary.109
Derek Muller illustrates this approach in recent commentary exploring writs of mandamus.110 Mandamus allows a court “to compel performance of a particular act by a lower court or a governmental officer or body,” most often “to correct a prior action or failure to act.”111 As Muller observes, this mechanism potentially can serve as a remedy for election subversion—in particular, subversion attempted by an election administrator or other actor improperly refusing to certify election results (or, even worse, certifying the wrong results).112 Describing this judicial mechanism as “simple” and “longstanding,” Muller identifies multiple occasions in recent history in which, in response to subversive recalcitrance, courts successfully relied on mandamus to direct election officials to fulfill their ministerial duties.113 In light of this precedent, and notwithstanding important caveats, Muller concludes that, as a corrective response to this brand of subversion, “mandamus works.”114
In my own work, I also have looked to the potential for courts to counteract attempts at subversion. A forthcoming article explores the phenomenon of “electoral sandbagging,” a practice that proceeds in multiple stages.115 First, an election participant perpetuates an error at an early stage of an election’s proceedings. The participant then waits to see how the election results unfold. If the results are favorable, the error slides into irrelevance. If not, the participant still has an ace in the hole: that same error can now be used as grounds for overturning the disfavored results. So defined, electoral sandbagging has the potential to be a powerful tool in the arsenal of those seeking to subvert elections.116 In a somewhat analogous context, courts have developed doctrines to identify, defuse, and deter these types of maneuvers,117 and, in light of this precedent, I propose that courts likewise be employed, where possible, to help counteract electoral sandbagging.118 Other scholars have similarly proposed that the courts serve as frontline medics in the battle against election subversion.119 Many of these works have carefully—and appropriately—distinguished between federal courts and state courts.120
Despite this focus, the corrective approach need not necessarily rely on the judiciary. To this end, scholars have explored the potential for other entities to provide remedies. Some commentators have looked to Congress, for example, with its power under the Fourteenth Amendment to disqualify insurrectionist candidates from taking office.121 In one particularly provocative essay, Nicholas O. Stephanopoulos examines a more radical idea: the potential of two “non-legislative powers” to “bring about a more majoritarian democracy.”122 Stephanopoulos first examines the right of each chamber of Congress, under Article I, Section 5 of the Constitution, to be “the Judge of the Elections . . . of its own Members.”123 Each house of Congress could, in theory, use this power to refuse to seat candidates whose victories depended on subverted or otherwise defective elections. Stephanopoulos separately looks to the President’s authority, under Article IV, to guarantee a republican form of government. “Thanks to this position,” Stephanopoulos explains, “the President could take whatever steps are necessary, in the chief executive’s judgment, to prevent states from lapsing into non-republicanism or to remedy anti-republican abuses.”124 While Stephanopoulos’s published work on this topic primarily focuses on voter suppression, gerrymandering, and other potentially antimajoritarian measures, his logic extends to attempts at election subversion—which, he appropriately acknowledges, might also be advanced, perversely, through unscrupulous use of these very same nonlegislative powers.125
Although Stephanopoulos proposes the creation of a new entity—a nonpartisan panel whose decisions, in his view, should be “rubberstamp[ed]”126—the bulk of his analysis is directed at preexisting institutions: the presidency and each house of Congress. Other scholars have long explored the possibility of creating new entities, including specialized election courts, that might be empowered to resolve disputes.127 Yet their more recent scholarship tends to sidestep proposals that would require the creation of new institutions. Instead, when exploring the corrective approach to election subversion, scholars tend to focus on institutions that already exist.
This pattern may reflect one of the major advantages of the corrective approach to election subversion, at least to the extent it relies on preexisting institutions: the approach is, relatively speaking, far more straightforward to implement than other approaches. Courts, in particular, exist to address complaints. Were legislatures more unified in their commitment to the rule of law and otherwise well-functioning, this advantage might not be as profound. But when political fragmentation and hyperpolarization dominate government, particularly at the national level,128 implementation challenges often prove fatal to otherwise worthy proposals. As a result, corrective actions by preexisting institutions might be among the only options realistically available to those committed to free and fair elections.
The corrective approach has other advantages as well. For legal experts, at least, the basic framework is familiar: law can help to remedy violations of law. The approach is therefore relatively easy to understand and implement. Perhaps even more importantly, this approach does not, in the same manner as an incentive-based approach, rely on empirical determinations without clear answers. In other words, the expectation is not that these corrective actions somehow will persuade actors to uphold election law voluntarily when they otherwise might have tried to subvert it. Instead, the expectation is that the corrective actions will, in effect, force participants in the electoral system to adhere to the rule of law.
So framed, this advantage also helps to signal the limitations of the corrective approach. Law-based remedies may purport to compel someone to act (or refrain from acting), but these remedies can be extremely difficult to enforce in the face of recalcitrance, particularly by governmental actors.129 In this sense, the corrective approach suffers from a fundamental limitation that is similar to that affecting the constraint-based approach: in the end, it relies on the continued functioning of the rule of law. If a breakdown in the rule of law runs deep enough—if election officials defiantly ignore writs of mandamus, if the courts are captured by subversive judges, if the executive branch is unable or unwilling to enforce the law, if violence prevails, and so on—there is no easy or obvious backstop.
A second disadvantage of the corrective approach is its timing. Rather than preventing subversion before it occurs—and, accordingly, before the specific nature of the subversive attempt, including the partisan valence of that attempt, has become clear—the corrective approach comes later in the process. Indeed, the correction often comes after Election Day, when the votes already have been cast, and it is all the more difficult for institutions to remain impartial (and, relatedly, maintain the appearance of impartiality). In the world of election law, therefore, commentators have long recognized the advantages of correcting problems ex ante, rather than ex post.130
A third disadvantage to the corrective approach involves the narrow opportunities that institutions have—at least under current law—to counteract attempts at election subversion. Again, the courts provide the clearest, and most important, illustration. The federal courts, in particular, have adopted a relatively strict understanding of their jurisdictional limits and the scope of their remedial powers.131 While the state courts often take a more relaxed approach to these limitations, they do not, as of yet, have a robust and well-established record of implementing creative remedies in response to attempted election subversion.132 Tellingly, the success of both the state and federal courts after the 2020 elections—a deft and uniform rejection of attempts at subverting the results through litigation—was primarily in a defensive posture.133 Stated otherwise, to maintain the rule of law against these subversive attempts, the courts did not need to issue novel remedies or adjudicate substantively meritorious claims brought under unusual postures. Instead, the courts simply had to acknowledge the lack of merit in meritless claims and, accordingly, refuse to award inappropriate relief.134 Were actors to attempt to subvert elections through other means—for example, through subverting the electoral count in the joint session of Congress—it is not clear under current law what, if anything, courts could do in response.135
A final disadvantage of the corrective approach recognizes that the relevant institutional leaders simply may not be willing to correct all forms of subversion.136 Perhaps this unwillingness would itself be grounded in rule-of-law concerns: consider, to that end, a judge dismissing a substantively meritorious claim on jurisdictional grounds. Or consider good-faith differences in opinion regarding what exactly constitutes election subversion, and therefore what, on the substance, might possibly warrant relief in the first place. More ominously, an unwillingness to stop subversion may not be grounded in rule-of-law concerns. It is possible—albeit deeply concerning to consider—that judges and other high-ranking institutional actors might themselves be subversive actors. At a minimum, the public’s diminished confidence in the U.S. Supreme Court may suggest this perception,137 compounding other disadvantages to a corrective approach.
It is in response to these sorts of concerns that election scholars may begin to hear an echo: a renewal of the criticisms of the courts that, years ago, inspired the field’s institutional turn. Preeminent scholars have for years persuasively argued that “courts are generally not the institutions best suited” for engaging with many of election law’s thorniest issues.138 Recent scholarship has gone still further in questioning the extent to which courts offer any value in election law—and in particular whether the U.S. Supreme Court, with its current composition, can even possibly serve as “a vanguard of democracy protection and constitutional renewal” rather than as an enabler of democracy’s decline.139
Much of this criticism is valid. Still, the problems on the eve of the 2022 elections are not the problems of a decade prior. A reconsideration of options—an open mind, an ongoing communal brainstorm—is appropriate. Having already pivoted on a dime, even as rapidly unfolding events altered the playing field, scholars well recognize this reality. And so, in response to profound strains on the country’s electoral systems, especially those presented by the threat of election subversion, the question returns. With no clear path forward, how should experts expend their energy?
III. election law at a sprint
Election subversion is a messy, complicated, and variable problem that resists a clean, straightforward, or static solution. No one knows exactly what is needed to resist the threat: which proposals are most likely to be implemented, how the constantly evolving political scene will affect the dynamic going forward, or the precise answers to any number of other difficult questions. It is appropriate, therefore, for legal experts to explore a range of prescriptive options.140
A review of recent work reveals several insights consistent with the rule-of-law pivot that may help to guide efforts, at least in the short term. One unifying theme is the inherent shortcomings of any law-based approach. These limitations reflect, among other complications, the messy relationship between election subversion and the rule of law. A second, and corresponding, theme is the value of expansion: expansion into other disciplines, to begin to answer questions that the law cannot; expansion beyond the American experience, to identify comparable precedents for developments that are unprecedented in the United States; and expansion of the window of discourse, to include work that may be undertheorized or otherwise imperfect. None of these proposed extensions is new to the field of election law; scholars have long strived to approach their work with a broad lens.141 Yet in response to the threat of election subversion, the need for expansion is all the more acute. This heightened need reflects both the legally perverse nature of the problem and the exigent nature of the risk.
Illustrating the need for expansion into other disciplines is the reality that many of the most promising prescriptions for election subversion are premised on altered incentives—or, at least, that is the idea. In practice, it is not clear, and likely cannot be clear prior to implementation, whether these incentives will materialize and work. Despite this indeterminacy, disciplines beyond law provide tentative answers to many of the empirical questions underlying the design of these proposals. These disciplines include not only political science, but also data science, information science, psychology, journalism studies, sociology, economics, and beyond. Finding ways to incorporate these insights into legal scholarship—to identify, translate, and apply the work from one field to another—is far from trivial, which helps to confirm the potential and immediate value of these efforts in the context of election subversion. One recent example is a concerted effort by Nathaniel Persily and Joshua A. Tucker to bring together works across multiple disciplines exploring the connection between social media and threats to democracy.142 Another is a working paper, published by the Berkman Klein Center, exploring the causes and nature of the 2020 disinformation campaign surrounding election fraud and mail-in ballots.143 Among the areas of need on this front are further works harnessing a sprawling, multidisciplinary collection of research—scholarship exploring the history and potential of alternate electoral system designs—in order to shed more light on the potential of social-choice theory to make elections more difficult to subvert.144
A similar logic helps to explain the heightened relevance of comparative work. In the United States, some of the conditions triggering acute concern over election subversion are unprecedented, at least in recent times, but they often have precedents in other countries. Scholars such as Kim Lane Scheppele have long studied constitutional systems under stress, including in Hungary and Poland.145 In recent years, Scheppele has applied these insights to democratic strain in the United States.146 Rachel Kleinfeld has similarly applied her comparative work on violence, political conflict, and democratic failure to the domestic context.147 Among other benefits, these sorts of analyses provide a language for scholars to use when encountering and examining conceptually complicated phenomena, such as autocratic legalism. It also offers theories to help understand and explain these trends. It may even help to provide a predictive glimpse into the future, given developments across nations that, at a high enough level of abstraction, appear to be following a similar pattern. The field would benefit from additional work applying these insights to the threat of election subversion in the United States.
Of course, these expansions would not be able to resolve all outstanding uncertainty or otherwise fully negate the deficiencies of any approach to the problem of election subversion. As discussed in Part II, each of the most prominent approaches has inherent limitations. The constraint-based approach responds to concerns about subversive actors by trusting that new and improved election laws somehow will resist similar subversive efforts. The incentive-based approach relies on assumptions that, once put to the test, very well may implicate the law of unintended consequences. The corrective approach is limited on multiple fronts: by the jurisdiction of the relevant institutions; by the willingness of corrective actors to defend the rule of law; by its assumption that subversive actors will tolerate a legal remedy; and more. In addition, and importantly, all these approaches pose challenges of implementation, some more serious than others. There is, in short, no silver bullet.
Yet these imperfections should not lead to hesitation. Here, it is critical that scholars continue to bear in mind the urgent pressures facing those committed to the rule of law in elections. For scholars to advance a prescription in a timely manner, important questions must remain unanswered. And without an optimal approach to the problem of election subversion, a wide range of approaches are worth considering. Scholars still should debate which prescriptions to prioritize—and so they are—but no amount of debate will produce a clear and distinct path forward. Instead, scholars must continue to muddle through.
In so doing, it is important to recognize that the judiciary has a critical role to play. Over a decade into the field’s institutional turn, skepticism of the courts runs deep among many in the election-law community. Yet the judiciary serves, among its many roles, as the cornerstone for the corrective approach to election subversion. And the corrective approach has important advantages over the other approaches, particularly when it relies on preexisting institutions. It can, in some contexts, be easier to understand, tailor, and implement than incentive-based responses. In addition, remedial responses often can be easier to implement, and perhaps in some scenarios are more forceful against subversion, than constraint-based efforts. The relative ease with which the corrective approach can be implemented, especially through preexisting institutions, is particularly advantageous in light of the time pressures imposed by the growing threat of election subversion.
Moreover, for all their institutional limitations, courts do display important strengths in response to election subversion. Any member of the bench quickly becomes familiar, for example, with attempts to exploit the litigation process in unfair ways. A well-developed body of rules and doctrines, including those associated with laches, estoppel, sanctions, burdens of proof, and more, help to channel the work of the courts even when participants are not necessarily operating in good faith. As discussed above, on this front, the months after the 2020 elections proved illustrative. Litigants filed dozens of lawsuits, often as aggressive as they were spurious, attempting to unsettle the results of the presidential election. Courts across a multitude of jurisdictions handled these high-stakes lawsuits with ease.148 It is true that the remedies in these cases came in the form of dismissals, rather than affirmative relief.149 In that sense, they proved to be consistent with one of the most significant limitations of the corrective approach: that, under preexisting law, only a limited number of remedies may be available to a party seeking to counteract election subversion.150 Nevertheless, the nuances of election subversion do implicate, in important ways, the strengths of the courts.
In short, even if scholars remain deeply skeptical of the role that the courts play in election law, they should be prepared to turn back again to the judiciary to explore, among other things, the ways this institution can help safeguard the rule of law. In the context of election subversion, this debate has very much not yet “run its course.”151 Among the priorities in this area are works further exploring the potential reach and limitations of mandamus, injunctive relief, and related mechanisms that may help to bring recalcitrant election participants into compliance with the rule of law.152 Scholars must also contend with the reality that the judiciary is not uniformly committed to any single vision of democracy, much less a representation-reinforcing conception of judicial review, and that even courts may, at times, be captured by subversive actors.153
All this work is difficult. And the time pressures associated with election cycles make it harder. However, identifying the rule-of-law pivot as a joint effort directed at a convoluted, multidimensional problem may help to productively channel energies, including in the ways suggested above. It likewise may help to reveal the very deep complexity of the central question motivating this work, which asks how to use law to counteract efforts to use law to subvert law. Recognizing the collective energy behind this pivot also may help to make the work feel, if nowhere near easy, at least a bit more manageable.
In recent years, election law has taken on a three-dimensional quality. Scholars still examine the substantive legal questions that motivated the field from its very start. And, consistent with the field’s institutional turn, scholars remain committed to exploring the importance and implications of institutional design. But now scholars must also concern themselves with the intricate and ever-changing ripple effects caused by a wavering rule of law. These complexities translate into projects that easily could fill a multitude of research agendas. As a result, the field of election law is energized. It also is expanding, as it must: for legal scholars to explore unprecedented threats, fueled by efforts that simultaneously rely on and reject law, they must be prepared to expand the scope of their analysis. This collective effort already is underway. Still, for those committed to free and fair elections, underlying developments in the United States remain ominous. For this community, having pivoted, it is now time to sprint: the clock continues to count down to the next set of elections.
Charles I. Stone Professor of Law, University of Washington School of Law. I am grateful for insightful comments on earlier drafts provided by Ned Foley, Michael Morley, Derek Muller, and Miriam Seifter, as well as for the research and editorial assistance provided by Cindy Fester, Walker McKusick, and the law librarians at the University of Washington. My gratitude further extends to the editors of the Yale Law Journal, and especially to Natalie Kirchhoff and Cynthia Y. Long, for outstanding editorial work.