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The reforms included giving voters in every state a chance to fix an error like a missing signature on a mail-in ballot and ensuring that counting ballots isnt subject to delays. If election officials can begin processing ballots early, this year has taught us, they have time to get in touch with voters to address mistakes on ballots and also complete the count on or close to Election Day.

These are small steps, technocratic rather than visionary, but ones that can help increase participation and trust. Congress could set national standards and fund states to implement them. Its time for uniform rules, said Stephen Vladeck, a law professor at the University of Texas, Austin. Weve learned a lot about how ballots should be distributed and validated.

Yet in recent litigation about voting by mail, Republican lawsuits have resurrected a theory that could prevent state courts and election officials from enacting changes that protect voters from disenfranchisement. The idea is that the rules for an election must come exclusively from the legislature. It derives from the Supreme Court case that effectively decided the presidential election in 2000 Bush v. Gore. But it has lain dormant since then, because it was never adopted by a majority on the Supreme Court.

Now that could change. During the summer and fall, in light of the pandemic, the state election board in North Carolina and the State Supreme Court in Pennsylvania extended the deadlines for returning absentee ballots; if they were postmarked by Nov. 3, they could be received through the mail days later and still be counted.

The Constitution gives legislatures the main role of setting rules for elections. (Each state, Article II says, shall appoint its representative to the Electoral College in such Manner as the Legislature thereof may direct.) But as in every other area of law, state officials outside the legislature have traditionally figured out how to apply rules for administering elections, and state courts are sometimes asked to decide a challenge to a particular practice in consideration of their state constitutions, almost all of which explicitly protect voting. (Many broadly provide for free or free and equal or free and open elections.)

And yet, in Bush v. Gore, the Supreme Court interfered with the usual lines of authority over state elections. The justices stepped in to end a recount of the Florida vote ordered by the Florida Supreme Court. Two of the justices signed onto a concurrence, written by Chief Justice William H. Rehnquist, arguing that the Florida recount had to end, despite the Florida Supreme Courts order, because Article II meant that only the legislature could provide a means to contest the results of the election. But in 2015, a majority of the Supreme Court went in the opposite direction, holding that the meaning of Legislature in Article II encompasses a states general lawmaking power. That ruling allowed Arizona to create a nonpartisan redistricting commission through a ballot initiative, rather than a law passed by the legislature.

And yet in the weeks before this election, Rehnquists narrow interpretation of Article II gained support from four conservative justices Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas when Republicans challenged the deadline extensions for mail-in ballots in Pennsylvania and North Carolina, and also in Wisconsin. Justice Amy Coney Barrett did not take part in these cases.

So far, these legal developments are a skirmish. At press time, the deadline extensions appeared to have little effect, because the number of mail-in ballots that arrived after Nov. 3 seemed small. But the cases laid the groundwork for future battles over election rules, large and small. This is now at the top of my list, Hasen said. The federal courts are threatening to become the greatest impediment to election reform.

Outside the courts, the usual challenge to improving how elections are run is sustaining our attention. Now we also have to bridge the partisan divide that turned the basic task of counting ballots into a lengthy, unnecessary drama. One lesson of Election Day was that record turnout doesnt just lift Democrats; the enormous wave of voters wound up buoying Republican candidates too, including Trump. But his relentless assaults on the integrity of the election now risk cementing the idea that for Republicans, attacking democracy itself, along with disenfranchising voters who dont support them, is the path forward. Instead of listening to Trump, look at and learn from the workers whose determined efforts made the election, despite everything, a success.

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Democracy Worked This Year. But It Is Under Threat. - The New York Times