It is not too early for our nation to plan how to conduct the 2020 election in the event that the current pandemic still requires Americans to remain home. The primary this week in Wisconsin demonstrates that business as usual simply will not do. It will not be easy to come up with any such plan because, under the Constitution, the election of a president consists of the 50 state races for electors, who then select the president.
As many Americans remember from two decades ago, states play a large role in determining the course of elections, and so does Congress, which decides the date of elections. In the early years of our republic, elections were conducted over a period of time, and ballots were counted slowly by hand. That is why the inauguration of a president, as written in the original Constitution, was set in March. As it became easier to count more quickly, the inauguration date was moved to January, where it is today.
Congress must appoint a nonpartisan commission of credible, respected, and citizens to explore the various options in an independent manner. The commission could be chaired by a former Supreme Court justice, such as David Souter. The other members could include former federal and state judges, presidents of universities, and experts in voting. The key for this is credibility. The commission must be seen as, and must actually be, totally nonpartisan. Its only goal is to see that a fair election is conducted this fall with as many people voting and with as little fraud as possible.
Options could include voting by mail, by phone, by electronic means, or in person for locations where that could be feasible. The votes need not be cast on a single day, although that would be preferable. There should be safeguards against fraud, such as requiring a mailed ballot from those who vote electronically so that, if there is a claim that an electronic vote is fraudulent, then it could be checked against the mailed ballot.
If the coronavirus persists into this fall, we can be certain the election will not be perfect. Voter turnout may be affected. There might be more fraud or confusion than usual. But there is no real alternative to conducting an election during the designated time period in early November. Moreover, postponing an election would be seen as partisan. Canceling an election is unthinkable in a democracy. We must do the best we can.
The problem facing the country this year is exacerbated by the fact that this election may well be very close, as was the election in 2000. It may turn on a relatively small number of votes across a handful of key states, as was the case in 2016. If it turns out that the election is not close, there will be no issue of credibility. But if this election is anything like some of our past ones, it will be essential that the losing side not have a plausible claim of illegitimacy. That is why we have to start now and why we need the most nonpartisan and credible commission as possible.
It is unclear who would benefit from various proposals, though each side has its preferences. The recommendations must be based on what is best for the country and not what is best for a party or candidate. The political philosopher John Rawls explained that the best way to assure justice is to formulate rules without knowing who would benefit from them. Once the election is conducted, and if it is contested, the issues would be partisan based on what is best for the challenger, as they were in 2000. It may be possible to come up with rules that pass the “shoe on the other foot test.” Passing that test would be difficult right before the election.
The ideal situation is to get a recommendation from the commission that both sides accept and agree to be bound. In order to achieve that utopian goal, the commission might have to give things to each side in a balanced way. Congress can enact the recommendation on a bipartisan basis. Such an agreement is possible only early in the process so that means soon. No one would certainly trust the House or the Senate to establish nonpartisan alternative voting procedures. Each chamber would try to figure out what is best for the party that controls it, meaning Democrats in the House and Republicans in the Senate. Nor would it be appropriate for the incumbent president, who is seeking reelection, to determine the rules.
Let Congress get to work on establishing and appointing a commission trusted by all Americans. In our divisive age, this will be a daunting task requiring statesmanship instead of partisanship. The stakes are high. Our democracy requires elections that are fair in fact and in appearance. The coronavirus has challenged our nation. Conducting a fair election in the midst of this pandemic is another feat. I hope we are up to it.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is the author of more than 40 books, including his latest, “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo.”