The 2020 presidential elections will be incomplete. There will be some voter fraud. There will be some voter oppression. There will be mistakes, late ballots, illegible mailings and other imperfections. This is the nature of modern elections – even without foreign interference.
We must do everything in our power to minimize over- or under-counting of votes. We must also recognize that in an imperfect world with imperfect voting mechanisms, the end result will not be a perfect representation of the intentions of the American electorate.
Nor will this be our first imperfect election. In 2000, George W. Bush was elected president with the smallest margin – less than 600 votes in the state of Florida. Since I was part of the legal team challenging that result, I have absolutely no doubt that more – many – more Floridians had the intention to vote for Al Gore than for George W. Bush. In Palm Beach County alone, hundreds of votes were inadvertently cast for Pat Buchanan because of the illegal and confusing butterfly ballot. Had these and other votes clearly intended for Gore been counted for him, Bush might have lost Florida by a decisive number and the case would never have ended up in the United States Supreme Court, which unjustly stopped the recount in a 5-4 vote by party line.
Looking even further back in time, many experts still wonder about the validity of John F. Kennedy’s victories in several primaries as well as in the general election. Both Nixon and Gore eventually conceded defeat and allowed a peaceful change of power.
There were several controversial elections in the 19th century, some of which were decided by corrupt business practices. Things have indeed improved over the years, especially with the release of many more voters and improvements in voter security. But of course, the more voters we have, the greater the chance of imperfection. This is the price we pay for the goal of universal suffrage.
In the bad old days, when only white men who owned property voted, it was easier to keep track of the relatively small voter pool.
There will always be some correct votes that are not counted and some inappropriate votes that are counted. We should try to minimize both. But from a political and legal point of view, we should always take the side of inclusion rather than exclusion. It is better that a few unsuitable votes are counted than that many correct votes are left out. Historically, there has been far more voter oppression than voter fraud, and the oppression has disproportionately affected minority voters. Therefore, emphasis should be placed on eliminating voter oppression while minimizing voter fraud.
While there is certainly a risk that counting even a few invalid votes could determine the outcome of an election, the risk is even greater that not counting many correct votes can determine the outcome of an election. This is exactly what happened in 2000, when voter suppression, both intentional and unintentional, distorted the votes of the Democratic candidate in Florida.
If polling stations are closed in this election, there will be complaints from both sides. The Democrats will invoke voter suppression. The Republicans will sue for election fraud. Each side will have to collect points. They will be able to prove their claims anecdotally and perhaps statistically. One or both will certainly seek redress in the courts, especially if the election in Swing states is very close. But in considering these claims, the courts should understand that perfection is impossible and that both law and politics should err on the side of inclusion rather than exclusion.
Voters themselves can reduce imperfections on both sides. Be persistent. Overcome efforts to discourage them. Be careful. Do not give the other side an excuse to invalidate your vote. Vote early. And most important: Vote. The main cause of imperfect voting is self-suppression: voters who simply don’t cast a ballot. Don’t be a cause for imperfection in the 2020 election. Vote.
Alan M. Dershowitz is the Felix Frankfurt Professor of