This article was originally published by Medium.com on April 12.

The United States holds genuine elections, not sham ones.

That’s what distinguishes this country from Putin’s Russia and other authoritarian regimes. Or at least it has ever since the Voting Rights Act, when we finally paid — in King’s words — that “promissory note” from “the architects of our Republic” that all Americans would be equal in their citizenship.

Now, as we await results from Wisconsin’s April 7 election (to be released starting at 4pm on Monday), we must wonder whether this election is one that fails our national commitment to genuine democracy and, if so, what to do about it.

In my judgment, without yet seeing those results, it is too soon to say that any of the reported vote tallies will require judicial modification or even judicial nullification.

To be sure, just from watching what took place on Tuesday — with Milwaukee voters braving coronavirus infection, perhaps even death, in hours-long lines at a paucity of polling places because of the pandemic — we know that what happened was an abomination, a civic tragedy, that never should have occurred. But to my mind that does not mean a court should invalidate the election, requiring a do-over, without regard to the results. Indeed, that would be unfair to those voters who, as Sherrilyn Ifill has so movingly described it, were “risking it all to stand as full American citizens and cast a ballot.”

We hold elections to put candidates in office, so that they can govern on our behalf. Therefore, to know whether or not an election succeeded or failed, we need to assess whether a candidate’s apparent victory, as reflected in the reported vote tallies, genuinely corresponds to the electoral choice of the participating voters.

If the outcome is what the voters actually wanted, then the result should stand despite the travesty of the process that produced this authentic result. But if not — if the vote count does not accurately reflect the preference of participating voters — then some sort of judicial remedy becomes warranted. Otherwise, the election was a sham, not genuine, and the winner takes office without the consent of the governed, which as we declared at the outset is our national test of government’s legitimacy.

So, let’s wait for the evidence on whether Wisconsin’s election meets, or fails, this crucial test. As I told the students in my Election Law class last week, what we all want most from our judges is that they always keep an open mind, willing to consider new arguments that they have not examined previously, and to decide cases based on the merits of those arguments and the facts presented.

Thus, my own views on what, if any action, a court should take in a case challenging the outcome of any race on this Wisconsin ballot necessarily remains tentative. Modeling judiciousness, I would want to read the briefs on both sides of a case before deciding which I thought had the better position.

But with that tentativeness in mind, I can begin to imagine at least three sorts of issues that might arise that could put in doubt the validity of vote totals as an accurate reflection of the electorate’s choice.

First, apparently there are a significant number of absentee ballots that arrived without a postmark, but likely cast on or before Election Day, and thus as substantively worthy of inclusion in the election as ballots postmarked by Election Day, according to the principle articulated by the U.S. Supreme Court in its last-minute ruling before Tuesday’s voting began.

Second, there is also likely to be some number of ballots postmarked after Election Day, but which voters were not in a position to cast any earlier because, through no fault of their own, they had not received their ballots in adequate time from the government. Although the Supreme Court ruled that the federal judiciary could not insist in advance that Wisconsin count these ballots (since they could have been cast after Election Day), the Supreme Court did not decide what other type of remedy might be necessary or appropriate, under either state or federal law, if these votes would make the difference in any of the races in this election.

Third, there are the voters who properly requested an absentee ballot but never received one in time to cast it by April 7, the date of the election, and thus did not send it back even if they received it subsequently. They also did not go to the polls on Election Day because they reasonably feared for their health and, even more, wanted to obey the directive from Dr. Deborah Birx, among other public health officials, that they should not be leaving their homes even to go grocery shopping this past week if at all possible.

A cast ballot, left uncounted by election canvassers although it should have been in order to treat similarly situated voters fairly, can be counted later by a court, leading to the judicial declaration of a different winner if there enough of these wrongly uncounted votes. (Additional guidance on implementing this remedial principle can be found in section 213 of the American Law Institute’s Principles of Law — Election Administration, which — full disclosure — I helped to draft.) But it is impossible for a court to count a ballot that was never cast. But these voters cannot be held responsible for failing to cast a ballot. They did exactly what they were supposed to do — and was their right — in making a timely request for an absentee ballot, which they did not received because of the government’s failure.

These voters did their part to participate in this election. They are part of the electorate whose collective will must be accurately reflected in the resulting vote tallies in order for the election to be valid. If their missing votes would have made a difference in any race on the ballot, then the reported vote count is not a genuine expression of the electorate’s actual choice.

While it may be an evidentiary challenge for a court to determine if ballots never cast because of wrongful disenfranchisement would have yielded a different outcome, it is not necessarily impossible. The names and addresses of disenfranchised voters may be identifiable, based on records of their timely absentee ballot requests (and documentation of the too-late date on which the government sent them their ballots). Statistical analysis of the precincts in which these disenfranchised voters reside may yield a high probability that the missing votes, if added to the reported tallies, would have overtaken the apparent margin of victory. Although this kind of statistics might not be enough to award the election to a different candidate than the apparent “winner,” it should suffice for judicial invalidation of the reported result (a point that the ALI project emphasized in section 213(g) of its principles).

To declare a “winner” based on that incomplete result would be a sham — based as it is on ballots missing as a consequence of the government’s wrongful disenfranchisement of valid voters — and to let that “winner” hold office because of a purported mandate to govern derived from the election, would make a mockery of what “consent of the governed” truly means.

Consequently, we need to be prepared for the possibility that Wisconsin’s election failed in its essential purpose and that its results cannot stand. This is a sobering conclusion. No one likes to declare failure, especially not when it concerns self-government.

And maybe it won’t come to that. Maybe, despite all its horrific flaws, Wisconsin’s vote will have conformed to the will of its voters. But if not, then something must be done to remedy the situation. Otherwise, as an exercise of self-rule, Wisconsin’s election will have been a pretense, not the real thing.

Edward B. Foley

Reporter, Principles of the Law, Election Administration

Edward Foley (known as “Ned”) directs Election Law @ Moritz at Ohio State University, Moritz College of Law, where he also holds the Ebersold Chair in Constitutional Law. His book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work. His 2016 book, Ballot Battles: The History of Disputed Elections in the United States, was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice.” While Foley has special expertise on the topics of recounts and provisional ballots, he has also co-authored the casebook, Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law.

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