With two elections within sixteen years won by the candidate who lost the popular vote, it is a natural turn that the Electoral College moves higher on the reform agenda. There remain other items for consideration: the state of the political parties, campaign finance, and voting rights. The question is: in what ways will the substance of reform, and its timing or tactics, be affected by the outcome of this election?

1. Attention to the Electoral College is now heightened at a time of mounting impatience with the other ways in which the electoral process deviates from the expectation that the most votes should decide. James Ceaser has correctly said that we've arrived at the point in our political culture that it is, if not unthinkable, difficult in the extreme to stand against the principle that the person with the most votes wins. So Republican leadership balked at any program to stop Trump at least in part because they struggled to explain how the nomination could somehow be denied to the candidate in a field of 17 who won by far the most contests and the most votes. The Democrats have run into similar problems with the role of super-delegates.

The case against the Electoral College is strengthened considerably by this strong trend in popular expectation. Whether we will see sustained momentum for reform is a different question.

2. Meanwhile, what about the parties? Ezra Klein has come to the view that parties may be weak but partisanship runs high, and that this complicated combination explains a good bit of what some see to have gone wrong with the nominating processes. Parties do not mediate voter choice: it is not accepted that they should step in against the candidates the voters favor and compel an alternative choice presented as superior in experience, governing credentials, or electability. So the voters decide, and once they have decided, the parties and their partisan fall into line. As Klein explains it, this is the worst of all worlds: weak parties, high partisanship.

The absence of strong parties on the traditional model has been keenly felt in this way, and perhaps in other less visible ones. For example, candidates now rely upon polling data to shape strategy and to adjust as necessary to changed political conditions. All of this is done at headquarters, shaped by sophisticated analytics. And the analytics are highly advanced. A modern campaign cannot operate without them. But genuinely strong parties are built on something more. They would have good intelligence "on the ground" delivered by seasoned party officials and operatives. The state and local party would speak authoritatively on local conditions. It pick up quickly on changes in those conditions not easily accessible through polling.

Donald Trump has urged his supporters to check closely for fraud and irregularities at the polling places. He wants them to make sure the voting is on the “up and up,” and he implies that there is a reason it might not be: he believes that there is a “big, big problem” which apparently “nobody has the guts to talk about.”

Rick Hasen, among others, has criticized Trump for claiming the widespread existence of a problem—impersonation voting fraud—which in fact occurs with extreme infrequency, and he worries that Trump supporters’ response to the demand that they somehow solve this “big, big problem” may intimidate voters, deterring some from exercising their right to vote. Hasen’s concern is fully justified.

This is not to suggest Trump or any other candidate should not expect, or should not do what he or she can, to help bring about an orderly election in which the rules, including the eligibility rules, are followed. There are any number of defensible “protect the vote” programs that his or any campaign, or political party, might put in place. But normally, the campaign or party defines the problem with precision, trains observers, and deploys lawyers to go about the task capably and responsibly. Instead Trump seems intent on issuing a alarm that any supporter can interpret as he or she wishes. The choice for Trump is not between measures to protect the vote and none at all, but between a genuine,competently structured program of voter protection and a wild political swing. That he chose the latter is deeply unfair to the voters.

Also not to be overlooked: It is also unfair to the election officials across the country charged with the hard work of running the polling places and deeply committed to professional,nonpartisan administration of the voting process. Some are Republicans, some Democrats, and some affiliate with neither party: it doesn’t matter. They do their jobs, often without adequate funding; they are the first to take the blame for anything that goes wrong. They persevere, a good many of them for years of relatively thankless service.

When the Presidential Commission on Election Administration held hearings around the country, the future of the Election Commission Administration came up regularly in discussions and testimony.  The EAC had no Commissioners, and the concern was chiefly that it could not attend to its responsibility for voting machine standards and certification. There was also a sense that the absence of the EAC—amid indications of neglect, partisan stand-off, or both—highlighted the weakness of a national commitment to progress in professional election administration.  The EAC was an invaluable resource for administrators, and, if it could steer clear of partisan conflict, it could perform a valuable service to the election administration community—and to the voters.

The EAC then got enough Commissioners for a quorum and full operations.  This was a period of considerable promise, and those working in the field moved quickly to engage with the EAC.  For example, early on Ben Ginsberg and I sent a letter urging that the newly functional Commission initiate steps to improve the standard-setting and certification process for voting machines.  The Commission subsequently acted, and it did so unanimously.  EAC-sponsored discussions in which former PCEA Commissioners and election administrators participated heightened the expectation that the Commission could help mark out the ground for professional administration even in a period of intense political and other conflict over voting rights.  There were warm and encouraging words all around.

Brian Newby, appointed Executive Director in November of 2015, has quickly managed to put all of this at risk.  Claiming authority to disregard past EAC policy and precedent--and understanding full well that he was ignoring disagreement among the Commissioners and provoking fresh partisan conflict--he purported to consent to state requests to modify the Federal Form for registration applicants to include a requirement of documentary proof of citizenship.  On this highly visible and divisive issue, in the face of its long and actively litigated history, Newby concluded that this is what he should do.

A recent posting here suggested that the constitutional analysis of ID statutes is foundering on the issue of partisan motivation—the politics of ID. The centrality of this motivation is inescapable. it is impressing itself on a prominent jurist like Richard Posner, once dismissive of claims against ID statutes, and it is supported by the evidence considered by political scientists (see here and here). Yet the jurisprudence developed around ID has fared poorly in showing how political motivation can be incorporated into a constitutional test.

Judges Easterbrook and Posner square off in their opinions on the Wisconsin voter ID statute and their exchange comes down to two questions: the differences in the design and effects of ID statutes, and the significance of partisan motivation. Frank V. Walker, Nos. 14-2058 & 14-2059 (7th Cir., Oct. 6, 2014). Easterbrook is casual, if not careless, in discussing the differences, and in his treatment more generally of facts. Posner insists on their importance. Easterbrook sweeps aside the question of political motivation, and Posner does not.