Lawyers can play a key role in restoring public confidence in elections

Since its founding, Pennsylvania has been a leader in upholding the best traditions of our nation — long living up to the commonwealth’s motto of “Virtue, Liberty, and Independence.” As we find ourselves heading into an election that will test the strength of our institutions, and, in particular, our system of elections, it’s fitting to see that Pennsylvania once again stands on the front lines of a battle to preserve this cornerstone of our democracy. We will soon learn whether we will meet the challenge set by Benjamin Franklin in 1787 when he declared that our nation was “a republic, if you can keep it.”

The two of us proudly agreed to serve as cochairs of the American Bar Association’s Task Force for American Democracy, in large part from a shared sense of alarm. Particularly troubling is the decline of confidence in our elections, most acutely seen in our nation’s young people. A poll conducted earlier this year by the Harvard Kennedy School’s Institute of Politics indicates the lowest levels of confidence in institutions of our democracy among 18 to 29-year-olds nationwide since the survey began 24 years ago.

This is dire and stems in large part from the many unanswered attacks on the integrity of our democratic institutions and our elections. Straight out of the authoritarian playbook is spreading distrust of public institutions to justify actions outside the rule of law — actions that are always couched as “saving” the country rather than what they actually are: vandalizing the institutions of democracy.

To the authoritarian, there is no line between the neutral norms of democracy and seeking unchecked political power, which is why all opposition is characterized as illegitimate. Of course, this is totally contrary to our system of government where all political authority derives from “we the people,” and advancing the public good is the only true measure of success.

To combat this disturbing trend, our task force conducted listening tours around the country, and we’ve been gratified to hear how states such as Pennsylvania are rising up to meet this challenge. Joining the many lawyers who already work for and volunteer with nonpartisan organizations throughout the commonwealth who protect and defend our elections, we are proud that a Democracy Task Force has been formed in Pennsylvania to mobilize additional lawyers and other professionals in this effort.

This important work includes a volunteer network of lawyers across the state working to protect the lawful election process and helping to ensure citizens can exercise their right to vote — and have their votes counted. Lawyers are also volunteering as poll workers and monitoring the polls and the canvass. And many Pennsylvania lawyers and citizens have signed the Society for the Rule of Law’s “Statement of Principles to Preserve, Protect, and Defend the Constitution, the Rule of Law, and American Democracy.”

Pennsylvanians rightly deserve to be proud of and confident in the administration of their elections, conducted on a bipartisan basis from the Republican head of the Department of State down to the local election official in all 67 counties. And these local efforts throughout Pennsylvania can serve as a welcome refresher in civics education for all Americans.

But there’s more work to be done.

Other states can follow the exemplary model of Pennsylvania. Moreover, attorneys can follow the example of prominent election lawyers Bob Bauer and Ben Ginsberg, who have created the Election Official Legal Defense Network to provide pro bono legal assistance to state and local election officials who face possible persecution, harassment, or threatened violence for performing their statutory and civic duties.

And institutions of secondary and higher learning can follow the example set by the deans of over 100 of the top law schools in the nation, who signed a letter affirming their commitment to preparing the next generation of lawyers to uphold democracy and the rule of law. The deans of the law schools at Penn State, Drexel, Temple, Villanova, and the University of Pennsylvania each signed the letter. Additionally, more state, local, and “affinity” bar associations are needed to join in common cause with our efforts to support and defend democracy and the rule of law.

We lawyers who have devoted our professional lives to promoting justice and upholding the rule of law have a special duty here as a first line of defense. But ultimately, of course, it will be up to every Pennsylvanian, and every American, to meet Franklin’s immortal question of whether we can keep our republic.

Will we inform ourselves of and confirm how our system of elections is secure, accurate, and resilient to inevitable stresses through checks and balances?

Or will we fall for the next sore loser who throws up unsubstantiated doubts or claims of fraud when their opponent wins?

Will we hold candidates for public office to the standards of civil discourse and long-held norms such as conceding elections they legitimately lose?

Or will we encourage by our support the worst name-calling and fearmongering by charlatans masquerading as leaders?

Straight out of the authoritarian playbook is spreading distrust of public institutions like our elections.

And ultimately, will we passionately debate the issues of our day, always with respect for those of our fellow Americans who disagree, with the firm conviction that we will abide by the result, win or lose?

Keeping that vision of America is the driving force behind the work of the task force we cochair.

And we hope it is your vision of America, as well.

J. Michael Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Jeh Charles Johnson served as secretary of Homeland Security from 2013 to 2017, and as general counsel of the U.S. Department of Defense from 2009 to 2012. DemocracyTaskForce@americanbar.org