Professor Richard Briffault on Elections and Public Trust

Richard Briffault, Joseph P. Chamberlain Professor of Legislation, studies and writes about election administration, voting law, and campaign finance. He also teaches and publishes on legislation and regulation, public integrity, and state and local government law. He appears frequently in the media to discuss issues related to election administration, and he participates in educational outreach to state and local election officials. Among the more than 90 law review and journal articles, books, and monographs bearing his name are “Election Law Localism and Democracy,” “Reforming Campaign Finance Reform: The Future of Public Financing,” and “The Supreme Court, Judicial Elections, and Dark Money.”

What do you find interesting about studying election law? 

It’s a great combination of high philosophy and theory about democracy and politics, and the rules that we ought to use to govern ourselves. It’s about the interaction of law and politics—how much law should drive politics, and how much politics should drive law—and also the nuts and bolts of how we actually run elections. And of course, it’s all about our form of governance, about democracy, the thing that drives everything else and makes everything work. All of our laws come out of our political process, which comes out of elections. So it’s pretty foundational. 

Election law has so many interesting and different moving parts: It’s constitutional law; it’s statutory law; it’s local government organization. It’s got money, because campaign finance is involved as well. There’s always something new happening. It’s a field of endless development. It never ceases to be interesting. Sometimes depressing, but always interesting. 

The field is wildly dynamic. Some aspects of the system are frozen, maybe unduly frozen like the Electoral College. But there are new laws, new doctrines, new techniques—and new challenges. Changes in the Voting Rights Act, challenges to campaign finance law, new decisions by the Supreme Court on the role of federal courts in overseeing the state courts in elections. New issues involving absentee ballots. The new Electoral Count Reform Act, which will be tested for the first time this year. There is constant litigation and lots of legislation, too, at the state and local level.  

Students are excited about the subject. Not just in my class, Law of the Political Process, but I have a lot of out-of-class discussions. There’s an enormous desire to understand both the principles of the system and how it actually works. 

How has the field of election law changed over the time you’ve been working in it? 

I’ve been teaching a course on election law since the mid-1980s. The course emerged at a time when scholars recognized that election law is an academic field. Now, election law sometimes goes by the somewhat fancier name of “law of democracy.”

The level of academic interest has only gotten bigger and stronger. One direction of research is people thinking about the connection between democratic rules and political polarization—how do our rules contribute to political polarization, and how can they be revised? That line of thinking is connected to increased thinking about economic inequality: What’s the connection between that and our campaign finance system? The other direction is a focus on how we run elections and the technical rules governing elections—more connected to the nitty-gritty of how elections work. 

How is the 2024 election being affected by the attempts to overturn the 2020 presidential election result?

What we’ve been seeing in the past four years is really an attack on the legitimacy of the elections, not just an effort to skew the elections.

The use of election laws to try and advantage one party or another goes back to the beginning of the republic. What seems so unusual—and has been so troubling since 2020—is the effort to attack the elections themselves and to say that they’re fundamentally corrupted, and we can’t trust them. 

Some of the effort is about adopting laws that one side or the other thinks will help them win. But so much of what we’re seeing is an effort to delegitimize the elections altogether. Most of the arguments are along the lines of illegal voting or somehow that the machinery has been hacked. There’s almost no evidence of either, or of claims that all sorts of unqualified people are voting, and that ballots are being tossed or new ballots are being put into the voting system in a massive way. We have so many oversight mechanisms now in the system, and more have been added since 2020 as a way of either maintaining or restoring popular confidence. Partly because of the past few election cycles, things have been more professionalized. 

Is the electoral process under threat? 

Elections are definitely under threat—sometimes in the most literal sense that election workers are being threatened. Local election offices are being threatened; people are being harassed; they’re sometimes being threatened with violence. They’re being challenged and being accused of misconduct and of being biased. And a lot of election officials have quit. They’re still really putting in the effort to try to make the system work. But I do think at that level, it’s under threat. 

You have members of a political party denying the results of the last election. That is a different kind of threat. This is a situation where people are unhappy because their side lost, and they’re being told not that they lost but that it was stolen. It’s very hard to get people out of that mindset once they have been persuaded into that mindset.

Is it possible that there could be systemic corruption of election results?  

We have a radically decentralized system. We have nearly 9,000 local election offices. Many of them are not even specialized offices, especially in smaller counties. Election Day is a massive operation, done by people who are hired for the day. While the election administrators are full-time employees, for many of the poll workers, it’s not a full-time job. So it is a complicated system. There’s so much machine testing and machine verification, but mistakes can happen, right? Mistakes in tabulation can happen. But the sense that there is some kind of deeply flawed, systemic corruption isn’t backed up by fact. Maybe the best evidence is that 70 or so lawsuits were brought to challenge the 2020 presidential election, but no fraud or misconduct was ever proven. 

Are you worried about anything with regard to the current election? 

One thing to worry about, I think, is that because of attacks on election workers, some commissioners or the registers of elections or of registered voters have resigned or retired. There are huge numbers of new election workers for whom this may be their first big election. There are reasons to be nervous that there may be a lot of relatively inexperienced people running this election cycle. 

Are there electoral reforms that you think should be implemented simply as a matter of best practices?

Best practices would be to abolish the Electoral College—which is not going to happen anytime soon. It has given us several elections where the popular vote loser has won the election. It concentrates the elections in a handful of states, leading to the ignoring of the rest of the country. The particular concerns of a handful of places dominate the entire country. That makes very little sense.

We might benefit from a more clear-cut and uniform set of rules about voter registration, which make it easier to register, and about absentee ballots. The system could benefit from a more standardized approval of voting machinery. It could benefit from a greater infusion of money to modernize the machinery and to professionalize election administration in those areas where more professionalism is needed—which tends to be smaller communities but not only smaller communities.   

 This interview has been edited and condensed.