‘This is not just a Republican problem’: Crisis of trust looms in US elections

Bradley A. Smith is a professor of law at Capital University Law School in Columbus, Ohio. An authority on election law and campaign finance, he is a co-author of the casebook “Voting Rights and Election Law” and author of “Unfree Speech: The Folly of Campaign Finance Reform.”

Between 2000 and 2005, he served as commissioner, vice chairman, and then chairman of the Federal Election Commission, in a seat designated for a Republican. (By law, no more than three of the FEC’s six commissioners can represent one political party.) 

Mr. Smith believes that declining trust in elections is a threat to the nation’s democracy. He says that Democrats are to some extent to blame for this decline, as well as Republicans, and that the problem is so broad and deep that it is unlikely to disappear if former President Donald Trump fades from the political scene.

On the subject of voting rights, Mr. Smith says that casting a ballot in the United States should not be hard, but that it is not necessarily a problem if it causes voters some inconvenience – as long as that inconvenience is not targeted at any particular group.

“It’s not the worst thing in the world to stand in line next to your fellow citizens and think for a minute and look at them before you go in the voting booth,” he says.

This interview is the third installment in a periodic series of conversations with a range of thinkers and workers in the field of democracy, looking at what’s wrong with it, what’s right, and what we can do in the U.S. to strengthen it. The transcript has been lightly edited and condensed for clarity.

You’ve talked about a loss of faith in elections being a dominant problem in American democracy. Can you expound on that a little bit?

If people don’t have faith in the election results, then you’re pretty much not going to have a democracy. The entire democracy relies on people accepting the results, and then also accepting defeat.

And the point that I have tried to stress – which you know, I get some flak on – is that this is not just a Republican problem. This is a bipartisan problem. It involves Democrats, too.

The reason I think it’s important to make that point is because people think, oh well, this will just go away, or it’s just because of what is called the “big lie” [Mr. Trump’s false claim the election was stolen]. I think it’s a deeper and broader problem. 

How are Democrats involved in this?

It comes in several forms. For example, we’ve seen it in the form of formal objections [in Congress] to the electoral vote count in the last three Republican presidential wins: 2000, 2004, and 2016. 

We see it in polling data of the rank and file of the party. There’s a great deal of polling data that shows the Democratic base is equally skeptical of elections.

For example, one [October 2020 survey] showed that the percentage of Republicans who thought that the election would be stolen by fraudulent mail balloting was very high, somewhere in the 60s. But it was basically identical to the percentage of Democrats who thought the election would be stolen by shenanigans in the Postal Service, that they would refuse to deliver ballots or to return completed ballots.

On the Republican side, it extends down to the rank and file in part because of comments made by leaders at the top. On the Democratic side, I’ve cited comments by Hillary Clinton to the effect that the election was stolen from her. Stacey Abrams continues to make those kinds of claims in Georgia [after losing the 2018 gubernatorial election]. And she’s like a rock star on the Democratic circuit.

Now we’re sitting here, we’re looking at Trump losing and making these comments. And a lot of Republicans believe in this information. But I could just as easily see a scenario where the shoe is simply on the other foot, including as early as a Republican victory in 2024.

But Mrs. Clinton accepted the results of the election. Mr. Trump has not, and has gone very far in that regard. Are these attitudes really equivalent?

No, I don’t think they are exactly equivalent. One of the things I stress is this isn’t an exercise in “whataboutism” or anything. Rather, it’s an attempt to diagnose the scope of a problem in the United States. 

Trump has gone further. Obviously, the events of Jan. 6 went further still.

But all these things are matters of degree. The concern here is deeper. 

I think you’ve also said a lot of the election legislation we’re seeing right now, both in Congress and in the states, is not really aimed at fixing our main problems. Why do you believe that?

I think the big problem here is that we have these dueling narratives. One is that there’s this tremendous amount of fraud in American elections, and the other is that there’s this tremendous vote suppression going on in America. And I think both of those narratives, to put it very bluntly, have almost no grounding in reality.

As a result, I don’t think [current bills] are likely to resolve the problem either way, and they become just part of the ongoing war. The parties, I think, both use what some people know are hysterical claims to gin up their own bases. 

One of the things that you need in election law in particular is a tremendous amount of stability. Because that’s what gives people confidence that we know how the election system works. The rules have been in place for a while. They weren’t made for this election to favor this party or that party. We’ve gotten away from that, and I think that’s a real problem.

That is, by the way, one of the things that I think gives former President Trump’s claims some credence to a lot of people. He says, there was fraud, fraud, fraud. There’s a lot of things I try to convince people were not fraud. They’re not fraud. They weren’t illegal. But they were sort of changing the rules late in the game.

When you have some secretaries of state, like the secretary of state of Michigan, doing things that seem to probably go beyond her authority – mailing out absentee [ballot applications] to everybody – that’s problematic. Even if the courts there uphold that.

Or when you have like in Pennsylvania, where the Pennsylvania Supreme Court made a decision based on the state constitution to allow [mail-in] votes to come in later than the prescribed statutory time.  

It doesn’t make the votes that are cast that way fraudulent. But it does make people suspicious of what’s going on. 

The funny thing is, I think it’s very doubtful that the changes that the Pennsylvania Supreme Court ordered made a difference in who won Pennsylvania. But it’s the kind of thing that gives people a sense that they were cheated out of the election. And once you think you’re kind of cheated in a broad colloquial sense, it’s a very easy step to think you were cheated in a formal, “they committed fraud” sense.

Obviously, a lot of the stuff you’re talking about was done in the context of the COVID-19 pandemic, in the name of safety. That doesn’t excuse it, in your view?

I don’t think a lot of the people who made these changes were trying to behave badly. They thought they were trying to make sure everybody could vote. But I remember Lou Rukeyser, the guy who starred in the old PBS “Wall Street Week” show. When the market would go bad, he would say, “Don’t just do something, stand there.”

I don’t think there was really all that much evidence that a lot of these changes needed to be made for the pandemic. There was sort of this immediate, oh we have to do this, without stopping to really say, well, do we have to do this? Do we have to do all of these things?

And if you change the rules at the last minute, it sows actual confusion. It also sows some distrust.

It’s never been easier to vote in the United States than it is today. That’s the fact, for all the talk of the president about Jim Crow and so on. And that’s irresponsible talk; it’s the kind of thing that builds this up.

Has it really “never been easier to vote”?

Not that long ago, we didn’t have early voting. Provisional ballots are generally a pretty new thing. Literally no state had no-excuse absentee voting until 1980, when California adopted it.

I think voting should be easy, but I don’t think the sole end of election law is to make voting as convenient and easy as possible. I catch a lot of flak for this, too.

I don’t think voting should be hard, but I don’t think it’s a problem if people are inconvenienced to vote, as long as there’s not strong evidence that the inconvenience is targeted, that we’re trying to make sure some people can’t vote.

The average voting time in the United States is about 20 minutes. And people stand in line much longer to go to Disney World and so on. I suspect it’s not the worst thing in the world to stand in line next to your fellow citizens and think for a minute and look at them before you go in the voting booth.

The stories I hear, “Oh, I stood in line five hours.” Well, when were the five-hour lines in Georgia? It was on the first day of early voting because all these people rushed out to vote. In early voting, you don’t have a lot of machines and so forth. It’s like we’re almost defeating ourselves. We’re running in circles.

I personally don’t favor no-fault absentee voting. I favor what we might call “easy excuse” absentee voting. The presumption should be you vote on Election Day. Everybody has the same amount of information, knows the same things about the candidates, and we realize that’s the day we come together to govern ourselves. I think there are some real civic benefits to thinking about voting in that way, rather than thinking merely how do we make it as convenient as possible for people to vote. This is not supposed to be like ordering some takeout. I think it’s a more serious thing than that.

To be clear, you’re not in favor of things that would have a disproportionate effect on any racial group, or other defined group of voters?

Right. And you know of course, that’s one of the problems, is almost everything you do can be found to have some impact on some group of people more than others. But I just think we need to think about it. I don’t think we should have five or six weeks of early voting. But similarly, on some of the things Republicans push, I’m agnostic on things like voter ID. I don’t think there’s much evidence it suppresses turnout. I don’t think there’s much evidence it prevents fraud. People like it, though; it gives them a sense of order in an election.

Won’t the many state election bills sponsored by Republicans cause opponents to lose faith in the integrity of upcoming elections? Kind of the flip side of what you’ve said happened due to changes made by secretaries of state and so forth prior to 2020?

I think when you look at the bills in Texas and Georgia, when you look at them really closely, what actually came out of the state legislative processes in both of these states are really pretty good bills. In many ways they make it easier to vote, take a balanced approach. [Note: The Texas bill passed the state Senate, but the House has been unable to reach quorum since Democratic lawmakers fled the state in an effort to stymie the bill’s passage during a special session this summer.]

Now you take a look at a lot of the bills that were introduced and didn’t go anywhere, in those states and elsewhere – well a lot of them were really extreme. I think really bad.

And if you listen to the rhetoric, you can begin to think these bills really suppress the vote. But I just don’t think they do. Like one thing several states have done is to require absentee ballots to be received a little bit earlier, like nine days before the election instead of five, or something like that.

You remember that one of the big problems some states had – we had this problem here in Ohio – was that the deadline for applying for an absentee ballot was so late that you couldn’t count on getting the absentee ballots out and getting them back in time, even if the voter filled it out the day they got it. So the change isn’t necessarily a bad idea.

To me, my ideal system would be you have absentee balloting, and you have just a couple of days of early voting for people who find out fairly late in the game that they won’t be able to vote on Election Day. But you get into some of these critiques of that kind of change as being voter suppression. I think people are hyping it up for various partisan reasons.

Note: This story has been updated to clarify that Michigan’s secretary of state mailed out absentee ballot applications to all voters.