Election 2020 debrief: What happened and what’s next?

Harvard Law scholars analyze the current state of the 2020 election and look ahead for ways to move forward

As of noontime Thursday, the country didn’t have a newly elected president. But the election did have one clear takeaway, that the essential divisions of the American electorate remain unresolved. This proved an occasion for analysis, and some highly cautious optimism, by a panel of Harvard Law School professors in the day’s “Election 2020 Debrief.”

Moderated by professor and former HLS Dean Martha Minow, the panel examined the mixed blessing of an election that went relatively smoothly, but is already awash in legal challenges. As Minow said in her introduction, “Let’s face facts: Much of the electoral process in the United States is severely faulty. People standing in line for seven and more hours to vote. Mail-in votes that are lost and not counted. … Polling is broken, the news ecosystem is hijacked by a false and misrepresentative news media that reflects and refuels divisions over everything, including basic facts.” On her own behalf, Minow voiced concern that 66 million Americans voted for an incumbent who, she said, reinforces the worst of those divides. “This is a crisis, no matter who becomes the president going forward.”

Voting Rights Litigation and Advocacy Clinic Director Ruth Greenwood said upfront that she tends to be an optimist. “Things went pretty well, right? We didn’t have civil unrest. Though we had long lines, we had people able to vote. It doesn’t seem like we had widespread transmission of COVID and we had a huge turnout, enthusiasm was high. The election administrators did their job under trying circumstances. Overall these are good signs for our democracy.”

She even credited news media for encouraging patience. “I know that certain candidates are not saying that, but it seems as though the ‘Stop the count’ rhetoric is not being picked up across the board. In terms of managing the mood, we did a lot of work this year to get that to a good place.” The main downside, she said, is “the somewhat expected flurry of lawsuits”—many of which, she said, are likely to be withdrawn early due to flimsy premise.

According to Professor Lawrence Lessig, the coming 12 hours were likely to be a turning point. “This could be the calm before the storm, or we’ll see that the whole fight is going to fizzle. (But) for the first time in forever, we have a candidate explicitly talking about trying to trigger either a statutory or constitutional authority of state legislatures to appoint alternative slates of electors.” The fizzling-out scenario appears more likely due to the legal ill-preparedness of President Donald Trump’s team, he said. But he cited precedents for a more complex result—notably the 1960 election where an extremely close Kennedy/Nixon vote led to Hawaii sending two different “slates” of electors to Congress to be counted. If this were to happen in Arizona or Georgia, Lessig suggested, the Republican slate governments could override the popular vote, which could lead to Supreme Court intervention.

Professor Kenneth Mack ’91 cited the racial underpinnings of alleged voter fraud as a disturbing trend that will likely persist. “For a generation after the civil rights movement there seemed to be a national consensus on expanding voting rights, particularly for the most vulnerable. That consensus has been in tatters.” Areas accused of voter fraud now tend to be those with predominantly Black voters.  “In the current election, places like Philadelphia, Atlanta and Fulton County seem to be the locus of this. From my perspective, that’s not an accident.”

He saw the Trump litigation both as a threat to established norms, and as a rallying point for lawyers. “It is clear that institutions are changing in ways that are not going to go back to the status quo. The press is changing, political institutions are changing, there are new challenges to the processes of voting and the norms that underlie it. There’s a lot of work for us to figure what to do. Whatever happens in the next few days or months, there is no going back.”

Professor Nicholas Stephanopoulos agreed that the Trump lawsuits aren’t likely to have an immediate impact on the election. “On the whole, I’m puzzled and somewhat comforted by the litigation we’ve seen so far. It’s such small potatoes litigation that doesn’t seem to be any significant threat to the vote counting process, or to the results in these states.” But given the likelihood of a Democratic President and a Republican Senate, electoral reform and Supreme Court reform are likely to be stalemated.  “We’re not going to get any change in the election jurisprudence of the Court, or if there is, it will go in a conservative direction.  So, any hope one might have had of a differently composed Supreme Court fighting gerrymandering, upholding restrictions on money in politics, striking down barriers to voting– anything that tries to promote rather than hinder American democracy—I don’t think that’s going to happen.” Should Biden win, Stephanopoulos proposed a strengthened Department of Justice as one avenue for moving forward.

Minow returned in her closing remarks to the enduring national divides. “We are divided within cities, within rural communities. There is no blue wave, there was no clear resolution. We have different facts, we live in different media universes, we listen to different music. One survey said that 90 percent of Republicans think Biden will lead the country into socialism, and 80 percent of Democrats think Trump will lead us to tyranny. So how do we move forward, with the risk that millions of people will not see this election as legitimate?”

“The business model of media and the business model of politics reinforce this pathology in our democracy,” Lessig said. He cited the Republican-led, anti-Trump Lincoln Project as a high-profile effort that ultimately made little difference. “We thought the way to win was to rally our side, and get us all really riled up to get out and vote. The Lincoln Project spent a huge amount of money to convince Republicans, and I’m not clear that one was convinced. The whole idea that they could speak across and bring people over turned not to be based in much fact at all.”

It is, Lessig said, up to individual citizens to look outside their bubbles. “Shouldn’t our job as citizens be to engage with somebody that we don’t agree with, rather than sitting among ourselves, reinforcing our views about why the other side is a bunch of idiots?”