CONCLUSION

In the conclusion to Hacking Elections Is Easy, the authors observe that “we send Americans to Iraq and Afghanistan to risk life, limb and death in order to spread and defend democracy abroad, yet we can’t even preserve the most sacred expression of the democratic process against enemies within our own borders.”²²⁷

I am not qualified to assess whether the authors are right that the United States today is essentially defenseless against election hacking, but they are clearly correct that we insufficiently protect our most consequential election. Long before the age of hacking, the United States failed to take the necessary action to preserve the legitimacy of presidential elections. As a result, we have suffered crises of legitimacy, and have been fortunate to be spared worse. The risk of old forms of fraud, not to mention pure accident, has placed us at peril before. Now we know that avowed enemies of democracy are taking aim at our elections. History suggests that we stand a nontrivial chance of any given presidential election leading to a crisis, a risk surely enhanced by the persistent threat of hacking and other forms of sabatoge. We ignore the risk at our peril.

Judge Posner notes “the failure of the Constitution to prescribe a method for resolving disputes over electors,” and shrewdly explains the difficulty of resolving such disputes within the current election framework:

The short time between the election and the inauguration, the necessity under the conditions of modern U.S. government for a transition period before inauguration in order to enable the President-elect to organize the new administration and hit the ground running on Inauguration Day, the fact that the “old” Congress takes a Christmas recess and the new one is not sworn in until after the first of the year, and the structure of Congress with its two houses and hundreds of members and poor reputation for statesmanship—all these things together make a credible, expeditious resolution of a dispute over electors unlikely. . . . We need a constitutional amendment.²²⁸

Posner asserts that, to have any chance of adoption, the amendment should not involve the abolition of the Electoral College. However, he acknowledges that there have been serious pushes to abolish the Electoral College and concedes that abolition is not a “quixotic long-term goal. . . . The objection to abolition has less to do with considerations of feasibility than with the fact that . . . a convincing case for abolition has not yet been made.”²²⁹

I have aimed to make that case, or at least to introduce a new argument to buttress the case others have made. However, the Electoral College has survived countless abolitionist efforts. Whether or not the movement for abolition is quixotic, it certainly faces an uphill climb. Accordingly, I should emphasize, as I did at the close of the previous chapter, that the two parts of my proposed constitutional amendment—abolition of the Electoral College and creation of a Presidential Election Review Board—are by no means mutually dependent. We can adopt one without the other.

If we learn from the crises that marred past presidential elections, we can adopt measures that will safeguard against recurrence. The overarching problem is the power of inertia. Reasonable remedies exist, provided that we take the problem seriously and overcome that inertia.