Why State Courts May Be Democracy’s Last Line of Defense

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politics-and How to Cure It (Yale University Press, 2022).

Dan Tokaji

Cheap Speech is Rick Hasen’s best book yet, and that’s saying something.  His previous works have adeptly explored the Supreme Court’s election law jurisprudence, the corrosive impact of concentrated wealth on American politics, the oeuvre of Justice Scalia, the Voting Wars, and the prospect of Electoral Meltdown.  While all are worth reading, Cheap Speech is Hasen’s most important book to date because it confronts an existential threat to our democracy:  the proliferation of false information about elections and politics.  Hasen addresses these threats in a clear-eyed way and offers realistic responses to the quandary in which we find ourselves. 

This post follows one thread in the tapestry that Cheap Speech scrutinizes:  the crucial role of courts as a bulwark of truth and defense against the dark art of election subversion.  To grasp the magnitude of the threat, we need only look back to the 2020 election, as Hasen does in Chapter 1.  He begins by showing just how easy it was for former President Trump to spread the “Big Lie” that he’d actually won the 2020 election.  Bringing Joseph Goebbels’ reputed advice into the digital age, Trump incessantly tweeted false claims about electoral fraud and corruption to an audience all too willing to believe them.  As Hasen irrefutably puts it, Trump was “[t]he greatest spreader[] of election disinformation in the 2020 presidential election” (p. 1).  

Of course, Trump’s disinformation campaign was not completely successful, for reasons that are equally important – and offer at least a glimmer of hope.  The former president failed to overturn the result of the 2020 election, despite his unrelenting false attacks on the integrity of our election system that culminated in the January 6, 2021 attack on the U.S. Capitol.  At least this time, our democratic institutions withstood the assault.

The irony is that the 2020 election was exceptionally well run in many respects, as Hasen and other election experts have observed.  Election officials did a heroic job of managing unprecedented voter turnout amidst a global pandemic in which many voters shifted from in-person to remote voting.   The percentage of people voting by mail more than doubled, while the percentage voting in person on election day declined to less than half its previous level.  The public servants who labor in the trenches of election administration deserved a pat on the back, not the barrage of verbal and digital abuse they have endured.  A laudable example is Georgia’s Republican Secretary of State Brad Raffensperger, who stood up to Trump’s call to “find” some 11,000 votes that would allow him to reverse the result in that state.  For good reason, then, Hasen sees competent and impartial election administration – boring as it may seem – as essential to combatting misinformation and protecting the legitimacy of future elections (pp. 83-85).

Another silver lining from the 2020 election is the performance of courts.  This turned out to be the most litigated election in modern history, with over 500 cases brought, many of them pandemic-related.   As Hasen recounts, Trump and his allies filed 62 lawsuits seeking to challenge the 2020 election results, only one of which succeeded on a minor issue (p. 157).  Rudy Giuliani, Sidney Powell, and other Trump lawyers made outrageous claims of electoral malfeasance unsupported by competent evidence.  Republican- and Democratic-aligned judges alike rejected those claims.  As Judge Stephanos Bibas, a Trump appointee, memorably put it in a Third Circuit opinion that Hasen quotes: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” All in all, 86 state and federal judges rejected the Trump camp’s electoral claims (p. 157).

The 2020 election litigation thus highlights the centrality of courts in standing up to election-related falsehoods.  Although many have come to believe the Big Lie, those evidence-free claims gained no traction in court.  Easy as it is to spread disinformation via social media, lawyers can’t go into court making factually unsupported claims and hope to get away with it.  Professional and court rules – including the prospect of attorney discipline and Rule 11 sanctions – constrain the conduct of lawyers.  As Hasen puts it, “courts’ public function as truth-telling bodies can go a long way toward combatting disinformation about stolen elections” (p. 158).   Hasen doesn’t pretend that courts can solve all of democracy’s ills, but he’s right to argue that they’re a crucial defense against false claims of electoral fraud. 

Courts are likely to play an even more vital role in protecting democracy against the pernicious effects of cheap speech in 2024 and beyond.  And given that election administration in the U.S. remains primarily a matter of state law and local practice, state courts will be especially vital.  2020 surely won’t be the last time a losing candidate makes false claims of fraud in an effort to overturn an election result.  If the continuing fealty to the former president is any indication, state legislators and election officials may not have the backbone to stand up to those false claims next time around.  State courts could well be the last firewall against election subversion.

To see why, consider the flurry of election-related legislation we’ve seen since 2020.  Even more worrisome than laws making it harder to vote are attempts to remove authority from the local or state election officials and place it in the hands of partisan actors – perhaps even the legislature itself.  There are arguments under the U.S. Constitution or Voting Rights Act that might be made against such state laws.  The U.S. Supreme Court, however, has made it more difficult to prevail by hardening the Purcell doctrine, which generally prohibits federal courts from issuing injunctions shortly before an election.  And even without Purcell, the most diabolical efforts at election subversion are likely to defy federal-law remedies. 

Let’s imagine some of the nightmare scenarios that might be used to overturn a presidential election based on false claims of electoral corruption, as Matthew Seligman does in this terrific draft article.  One possibility is that a state legislature dissatisfied with the election result could enact post-election legislation appointing electors – effectively declaring the losing candidate the winner.  We can imagine due process and equal protection arguments against such a law, but it’s far from certain they would prevail.  That’s especially true if the state legislature were to find that the election was so flawed that the state “failed to make a choice” on election day, thus triggering the Electoral Count Act provision allowing the state legislature to appoint electors on a “subsequent day.” Rick Pildes has aptly described this provision as a loaded weapon, lying around for an unscrupulous state legislature to invoke. 

An even more devious possibility that a state legislature might act before the election, adopting legislation that makes the state legislature itself – rather than state courts – the final arbiter of presidential election results.  If the election doesn’t turn out the way the legislature wants, it could later invoke this authority to declare its preferred candidate the winner.  Here too, we can imagine federal constitutional or statutory claims that might be asserted.  But the best we can probably hope for from the current U.S. Supreme Court is noninterference.  There’s a genuine risk that the Court will breathe life into the so-called “independent state legislature” theory, which should really be called the unfettered state legislature doctrine.  In its most robust form, this argument posits that state legislatures have plenary power over presidential elections that can’t be constrained by state courts, state constitutions, or even Congress. 

Provided this pernicious theory remains just a theory, state legislatures will remain constrained by state constitutions and state courts.  That will enable them to check state legislative attempts to overturn an election result based on false claims of electoral fraud or corruption.  For example, if a state legislature arrogated to itself the authority to determine the winner of a presidential election, before or after election day, a state court might find that this legislature has exceeded its powers under the state constitution.  Alternatively, it might find that state constitutional voting rights have been violated.  Given the strong performance of state courts in the 2020 election, there’s good reason to believe that they will be more trustworthy arbiters than state legislators or executive branch officials.  As the Trump camp’s judicial misadventures in the 2020 election demonstrate, it’s hard to get away with unsupported factual claims in courts of law. 

Hasen’s latest book paints a devastating picture of the harms to American democracy arising from the proliferation of cheap speech.  As he persuasively argues, law alone can’t fix these problems.  But our legal institutions – and particularly state courts – have the capacity to stop some of the most perilous attempts to overturn election results based on misinformation and disinformation.  We can only hope that the U.S. Supreme Court will stay out of their way.  

Dan Tokaji is the Fred W. and Vi Miller Dean and Professor of Law at the University of Wisconsin Law School. He is a co-author of Election Law: Cases and Materials with Professor Hasen. You can reach him by e-mail at tokaji@wisc.edu.