Fair elections and a strong economy: Both are at risk

President Biden, speaking in Philadelphia last month, warned of nefarious efforts afoot to undermine voting rights, calling them the “most significant test of our democracy since the Civil War.” But while much attention has gone to voter suppression laws in states like Texas, too few are focusing on norm-shattering changes to the way elections are administered in this country — and the profound consequences they could have for our democracy and our economy.

In the last six months alone, more than 400 bills have been introduced in 49 states that would, under the guise of combating fraud, give state legislatures unprecedented and ominous powers over how elections are administered, votes counted and results certified. A spurious, partisan declaration of fraud might someday soon be enough to overpower democratic outcomes.

These efforts not only threaten our democracy, they threaten to shake the foundations of our market-based economic system. One of the great strengths of the American economy is the rule of law. When domestic and foreign businesses invest in the United States — helping to create jobs — or when investors buy U.S. Treasuries — helping to fund the government programs on which Americans depend — they are relying on this bedrock. Everything from business confidence to the dollar’s status as the world’s reserve currency depends on the rule of law. Its degradation could therefore fundamentally affect the way our economy functions, and the economic outlook for the years and decades ahead.

Whereas democratic best practices would leave election mechanics to independent civil servants, voting oversight in the U.S. has largely been political, albeit bipartisan. In practice, this has worked just fine: So long as each of the two major parties could stand vigilant over the other, a commitment to electoral competition, repeat play and basic values of popular sovereignty has kept temptations to cheat at bay. 

Now, that long-standing balance is in jeopardy. Across the country, bills are advancing to allow state legislatures to control election certification, oversee election processes that were previously under local control, or strip state executives of power over election administration. Other bills impose financial or even criminal penalties on election officials for inadvertent errors.  

On their face, the bills purport to deal with the comparatively humdrum matter of local election administration. But, fundamentally, they are about taking power: State legislators are replaying the aftermath of the 2020 election and intentionally weakening the democratic guardrails that prevented the former president from overturning the results. Some of the bills echo Reconstruction-era concerns over  “failed elections,” a pretense that allows state legislatures to substitute their will for the will of the voters. 

Many of these bills are already law, including in swing states like Arizona, Florida and Georgia. In Arkansas, a new law allows a partisan state board to “take corrective action” in a county if a committee of the legislature has doubts about “the appearance of an equal, free and impartial election.” In Georgia, where Secretary of State Brad Raffensperger refused the former president’s pleas to “find” votes, a new law removes the secretary of State from the state elections board, places that board under firm command of the state legislature and allows the state board to replace local election officials at-will. Georgia has already started a process that could lead to purging bipartisan election boards, replacing election officials with partisan loyalists and leaving formerly bipartisan boards with only Republican appointees.

If this were happening abroad — as it has, in Orban’s Hungary, Kaczynski’s Poland, Modi’s India, and elsewhere — we would view it as a worrisome sign that democracy’s fabric is fraying. Companies and investors would pause before doing business in such places. The same could well happen here. Business decisions are enormously affected by confidence, and the rule of law is integral to confidence. Businesses must be confident that contracts will be enforced and property rights will be honored. If that confidence is shaken by such a fundamental matter as setting aside the voters’ choices in favor of legislatures’ dictation of an election’s outcomes, the consequences could be devastating. 

Stability has long been this country’s economic calling card. But there is an increasingly jaundiced view, both domestically and internationally, about the future of our democratic order. To avoid further democratic decline — and economic morass — we must shore up faith in the rule of law by fighting back against the politicization of election administration. We must defeat the bills advancing in state legislatures and challenge in the courts the laws already corrupting our system. The ministerial task of tabulating election results cannot become yet another opportunity for partisan mischief. 

Robert Rubin is former secretary of the Treasury under President Clinton.

Samuel Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at New York University School of Law. Twitter: @Sissacharoff