Edward B. Foley is a professor of law at Ohio State University and directs its election law program.
We hold elections so that voters can make a choice between alternatives. Therefore, the most fundamental task in counting votes is to produce a result that voters are confident is the choice that they collectively made, even if individually they preferred a different result.
For the most part, American democracy has passed this basic test this year. We may have ongoing concerns about the gerrymandering of House districts. We may even doubt that it’s fair for each state to have two senators regardless of population. But those issues concern the structure of the elections, which should be determined in advance of the elections. When it comes to the integrity of the elections under those structures, the candidates who won on Tuesday generally received the most votes in their respective races.
But “generally” is not the same as “always.” There is one high-profile election in particular for which the verdict remains out: Georgia’s race for governor.
The Georgia race is close enough that the democratic legitimacy of the outcome depends on how ballots that have yet to be counted are handled. Stacey Abrams, the Democrat, trails Brian Kemp, the Republican. But if the gap sufficiently narrows as additional ballots are counted, state law would require a runoff.
One might hope that the remainder of the counting process could be straightforward. But Kemp has had every incentive to keep additional ballots from being counted by asserting that some impropriety disqualifies them. And Kemp, who finally resigned Thursday as Georgia’s secretary of state, has been supervising the process of casting and counting the ballots throughout the election.
This is no small matter. With all the concerns of possible cyberattacks on the nation’s voting infrastructure, there was serious anxiety that results this year might not be an accurate reflection of the choices voters made. Moreover, with all the fears that eligible voters might be prevented from casting ballots by various forms of voter suppression, there was a genuine worry that the results might not accurately reflect the will of the electorate for the simple reason that some eligible voters who attempted to participate were unable. (In other words, the output would be inaccurate because some of the inputs were wrongfully missing.)
This year’s elections, for the most part, have demonstrated that they escaped this kind of failure to perform their essential purpose. While there are reasons to remain concerned about an attack against America’s electoral infrastructure — as well as the increasing brazenness of efforts to suppress the turnout of partisan opponents — it appears that these kinds of subterfuge did not alter most outcomes.
But Kemp’s performance in Georgia leading up to Election Day is cause for concern. Not only did he attempt to block voters from participating based on trivial technicalities, but his website also wrongfully accused Democrats of attempting to hack the election right before the polls opened. Even if a partisan secretary of state must be permitted to run a state’s electoral machinery up through the casting of ballots, it is unconscionable that a candidate could control whether to count a last batch of potentially decisive ballots.
Kemp’s resignation, which removes him as supervisor of the vote count, is an important development, but he leaves behind an office to which he has ties of allegiance by being its boss only yesterday. Every move in Georgia’s vote-counting process needs to be watched with extra vigilance to make sure it is not tainted by the improprieties that have already occurred.
Other races remain unsettled. Florida’s U.S. Senate election, for example, is heading to an automatic recount, and the governor’s race there may, too. Arizona’s U.S. Senate race may turn on litigation over absentee ballots, as other close Senate elections have. (Think Minnesota in the 2008 elections, when Al Franken pulled ahead of Norm Coleman after wrongly discarded absentee ballots were added in the recount.) In all cases, the process should be scrupulously observed as part of assuring voters that the outcome indeed matches their inputs. Neither mistake nor mischief should subvert what the voters decided.
But the Georgia race stands apart in needing special scrutiny to assure that its completion meets the test of democratic legitimacy. Otherwise, it threatens to signify that in the United States, raw partisanship can cause elections to flout the basic standard that the winner is the candidate whom the voters chose.