On the latest episode of the WI Law in Action podcast from the UW Law Library, election law expert Dean Dan Tokaji joins us to discuss free speech, the 2020 election, and the effect of misinformation on democracy. Tokaji discusses two recent pieces: Truth, Democracy, and the Limits of Law, a 2020 Saint Louis University Law Journal article and #2DaysOut: Ten Things to Watch for on (and after) Election Day, a contribution to the Election Law Blog published right before Election Day, 2020. Below are a few excerpts from our discussion.
Tokaji on the essential norms of our democratic system:
What I often say is that democracy does not exist in a vacuum. It’s a product of a set of basic norms upon which we have to have an agreement that includes freedom of speech, as well as elections, in which the polity as a whole can participate without undue barriers to any particular group’s ability to vote and have their votes counted. And if we don’t have these things, if we’re not able to protect constitutional rights, and importantly, if we don’t have impartial institutions that are able to resolve our disagreements without political favoritism, well, then we’re in a lot of trouble.
And I do think we’re at a moment in our history, here in the United States and in fact, around the world, including in other established democracies, where the future of constitutional democracy is very much at risk. Our institutions have proven strong enough to make it through this most recent election cycle, at least so far. But I think we’ve all come to see the vulnerabilities in our democratic, small D, democratic process to a greater extent than was the case before.
Tokaji on the role of attorneys in combatting falsehoods:
I think lawyers have an essential role to play in this process, not only because our core values include a commitment to evidence and finding out what is true and what is not, but because we have great skills as lawyers, oral advocacy skills, skills in writing, we’re able to make arguments in a way that will persuade our fellow citizens. And it’s incumbent upon us as law students, lawyers, law professors to be leaders, and to lead us forward regardless of our ideological predilections. And I don’t think this is a liberal or a conservative issue at all, I think all of us who are lawyers share this commitment to truth, although we may not always exercise it or fulfill it. And we have to be outspoken in insisting upon the truth, as many lawyers, including members of Congress of both parties have been in the wake of the 2020 election.
Tokaji on the need for impartiality by election authorities:
The second thing that I would really, really emphasize is the need for us to look at our institutions, right? Especially election administrators, the ones who are responsible for running our elections. And to consider changes that would give us nonpartisan, bipartisan, electoral institutions, as most other countries have. Another piece I’m working on right now is on comparative election administration, looking at chief election authorities in the United States and around the world. We’re somewhat of an outlier in having chief election officials that are so closely tied to one or the other of the major parties.
And I worry about the functional impartiality of our election authority. I mean, I think they stood up to the pressure of this election, but if our democracy is going to survive, and to flourish in the years, in the decades to come, I think it’s going to be important that our electoral institutions get the attention they deserve, and that we, including us as lawyers, work to improve the entities that are responsible for conducting our elections, and ensuring