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Opinion

Don’t Let Our Democracy Collapse

Justin RenteriaCredit...Justin Renteria

The strength and integrity of the American electoral process are under tremendous strain, but the worst may be yet to come.

In just the past few weeks, we learned that in the midst of the 2016 campaign the president’s eldest son, Donald J. Trump Jr., was willing to meet with a woman described to him as a “Russian government attorney” to get dirt on his father’s opponent. Voters across the country asked election officials to remove their names from voting rolls so that their personal information would not be turned over to the Orwellian Election Integrity commission that the president established to try to substantiate his outrageous and false charge that there were three million or more illegal voters in 2016. The president has stacked this commission with a rogues’ gallery of people with reputations for false and exaggerated claims of voter fraud. Democratic and Republican state officials have resisted the commission’s call to turn over voting lists.

And yet as bad as things are, the health of our electoral process is likely to deteriorate further, with some of the threats striking at the very basis of democratic society: our confidence that votes have been fairly and accurately counted. What’s worse, we cannot count on the courts, the president, Congress or state legislatures to save us. It will take bipartisan cooperation among state and local election officials, facilitated by nongovernmental organizations committed to sound principles of election administration, to get us past this dangerous point.

Let’s start with new concerns about the courts, which have in recent years served as a backstop against the most egregious efforts to make it harder to register and to vote. Since 2005, I have tracked the rate of election litigation, which tells us how often plaintiffs go to court to fight over election rules. My latest research demonstrates that election litigation in the 2016 election season is up 23 percent over 2012. This follows a rapid increase of such litigation in the period after the disputed presidential election of 2000, when it more than doubled.

Much of this litigation aims to stop laws passed in Republican-dominated states that make it harder to register and vote. In 2013, for example, soon after the Supreme Court struck down a key provision of the Voting Rights Act, Republicans in North Carolina passed a package of harsh voting rules, including a strict voter identification provision and new limits on early voting. Since the 2016 election, both New Hampshire and Iowa have passed new restrictive voting rules, with other states likely to follow.

When judges handle these cases, they increasingly divide along party lines. Consider the litigation over North Carolina’s law. A Republican-appointed federal judge upheld it, and then three Democratic-appointed judges struck down key parts. Before Mr. Trump appointed a conservative judge, Neil Gorsuch, to replace Antonin Scalia on the Supreme Court, the short-handed court divided 4-4 along party lines on whether to stay the appeals court ruling. The court then denied review, but in an unusual statement Chief Justice John G. Roberts Jr. explained that the denial was on technical grounds, not on the merits. Taking this cue, North Carolina is already at work on a new voter ID law. There is every reason to believe that courts will continue dividing along party lines in these cases and that Republican-dominated courts are unlikely to save voters from new efforts to make it harder to register and to vote.

On top of these domestic problems, there is the external threat. According to a report by the F.B.I., the C.I.A. and the N.S.A., Russia engaged in a concerted effort to undermine the election process in 2016 by leaking stolen documents, hacking voting systems and disseminating “fake news.” Attempted Russian cyberattacks on voter databases were widespread, with hacking hitting systems in up to 39 states. According to a report in Time magazine, hackers successfully changed voter data in a county database in one state, although the database was corrected before the election.

By 2020, cyberattacks could try to alter or erase voter registration databases, bring down our power grids or transportation infrastructure, or do something else to interfere with actual voting on Election Day. The next hacks could include malicious, false information interspersed with accurate stolen files; public confidence in the fairness of our electoral process could decrease further, even if the hacks are unsuccessful, as incendiary and unsupported claims about voter fraud, cheating and altered vote totals spread via social media.

The courts cannot save us from any of this. Nor can we expect leadership from the executive branch, Congress or polarized state legislatures. The president has caused confidence in our election system to deteriorate with his outrageous claims about voter fraud and his Election Integrity commission. Mr. Trump’s Justice Department has already made inquiries into whether states can do more to purge inactive voters from voter lists.

Meanwhile, House Republicans are moving to abolish the United States Election Assistance Commission, a bipartisan federal agency that serves as a clearinghouse for information about best voting practices and certifies the security of voting machines. Does that sound like a good idea right now?

Faced with this vacuum, nongovernmental organizations need to take the lead on fostering cooperation across various levels of government and among political parties. The efforts of the Presidential Commission on Election Administration (a bipartisan group President Barack Obama appointed to study problems with the 2012 elections), the Pew Charitable Trusts, the Bipartisan Policy Center and others show that this kind of work can be effective. Led by Pew, red as well as blue states have adopted online voter registration and voluntarily cooperated to clean voter rolls in a way that is careful enough to avoid inadvertent disenfranchisement.

The next urgent area of cooperation must be election cybersecurity. Faced with a serious, imminent threat, Democrats and Republicans should have every reason to work together. Unfortunately, Pew has announced plans to cease its work in election administration at this crucial time, and it is not clear who can step up to take its place.

The future is scary. Public confidence in the fairness of the election process is already largely driven by who wins and who loses. State and local election officials need to overcome partisanship and resistance in areas where they can cooperate, and we need to support organizations that foster that. It may not sound sexy, but our democracy is counting on them.

Richard L. Hasen is a professor of law and political science at the University of California, Irvine, and the author of “The Voting Wars: From Florida 2000 to the Next Election Meltdown.”

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A version of this article appears in print on  , Section SR, Page 4 of the New York edition with the headline: Don’t Let Our Democracy Collapse. Order Reprints | Today’s Paper | Subscribe

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