A Conversation with Justin Levitt

In the general election of 2020 and again in the mid-term elections of 2022, some political leaders and commentators made unfounded charges about voter fraud and rigged elections. Evidence for those charges was never presented. When lodged in courts, those cases were thrown out. The integrity of those elections was confirmed. But among the results of the mid-term elections is that the Republican Party won control of the U.S. House of Representatives. Election deniers with the GOP now will chair important Congressional committees with oversight of the federal government. We asked Justin Levitt, professor of law at the LMU Loyola Law School and an expert on election law, to discuss the prospects for election integrity in the future. He was interviewed via email by Editor Joseph Wakelee-Lynch.

Justin Levitt, professor of law at the LMU Loyola Law School, has served as deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice and as first senior policy advisor for Democracy and Voting Rights in the Biden White House.

A Supreme Court case from North Carolina, Moore v. Harper, could dramatically shift the oversight of elections, preventing state courts from reviewing congressional redistricting maps drawn by state legislatures. As an election law expert, do you think the Court should find arguments in favor of such changes persuasive?

I don’t think the arguments are persuasive, no (and I’ve written quite a bit about why). 

The federal Constitution — a provision called the “Elections Clause” — gives both state legislatures and Congress a role in setting the rules for congressional elections. But just as Congress is created by the federal Constitution, with rules and constraints set by the federal Constitution and interpreted by federal courts, state legislatures are created by state constitutions, with rules and constraints set by state constitutions and interpreted by state courts. When the federal Constitution gives the state legislature a role in creating rules for federal elections, that comes along with all of the regular limits on what the state legislature can do.

The North Carolina legislature’s claim is that the federal Constitution cuts the state legislature entirely loose from its normal context: The claim is that unlike every other time the state legislature acts to create the general rules we call legislation, it should be permitted here to act on federal elections without any background rules, including state court oversight. But that turns the “state legislature” into something unrecognizable. If someone offers you tickets to see the Dodgers play, the context is baked in: You’re going to watch them play baseball, in a stadium, using the Major League Baseball rulebook. North Carolina’s argument here is like realizing the tickets are to see the Dodgers lineup in tuxes in Disney Hall struggling their way through Beethoven’s Ninth. That might be interesting. But it’s not what everybody understands it means to see the Dodgers play.

Wouldn’t such a result further complicate a patchwork of election laws across the states, and isn’t that a scenario that anyone concerned about election integrity — like judges — would prefer to avoid? 

Absolutely. Cutting a state legislature loose from its normal context is not only logically weird, but pragmatically dangerous. For example, if the North Carolina legislature wins, this case could affect most of the congressional district lines in the country, as legislators redraw their lines for personal and partisan advantage, and partisan operatives challenge whether states (like California) with independent commissions get to have those commissions draw congressional lines at all.

But it’s not just about district lines. The same logic applies to the rules for casting ballots in federal elections, and could cause chaos. In most states, the rules for an election apply to every race on the ballot. But this case could end up creating some rules for elections for state office (subject to normal state constitutional constraints interpreted by state courts), and totally different rules for elections for federal office (as state constitutions and state courts are cut out of the process). It would also create even more complicated legal disputes about what state statutes mean: Normally, state courts interpret state statutes that aren’t perfectly clear; but if state legislatures are going to be specially exempt from state courts, somebody’s going to have to figure out what those statutes mean. That means more federal courts involved in a lot more thorny issues at the 11th hour, precisely when things are most contentious. That’s not a recipe for confidence.

Before the 2020 national elections, there was great concern about election integrity, but you were confident that state election officials would do their job impartially. And they did. Do you feel the same way now?

I do. Election officials are professionals, doing their best to make sure that the process runs as smoothly as possible. And volunteer poll workers are your neighbors, with the same selfless goal. They have to administer a complicated set of local, state and federal rules, and as long as humans run a human process, there will be occasional mistakes. But they work incredibly hard to get the process right, so that the voters can decide the outcome. And that’s true even when I might disagree with the choices they make.

In some places, the election officials are themselves elected; in others, they’re appointed by elected officials. Which means that it’s really up to us to choose who runs the process. As Ben Franklin said more than 230 years ago, we have a republic, if [we] can keep it. In 2022, several candidates ran in swing states for state offices that oversee elections while denying the legitimacy of past legitimate elections and leaving serious questions about their commitment to future legitimate elections. Voters keep track of these things, and it turns out that when democracy is on the ballot, we, the people, like democracy. Every one of these candidates lost. And the people who won — some Republicans, some Democrats, some appointed administrators who are neither — are people who will run a process where the results are up to the eligible electorate.

Does the authority at the federal level over election laws, whether that authority is extensive or limited, reside solely within the executive branch? And if the House of Representatives exercises only oversight, is the ability of election deniers in the House Republican Party limited when it comes to affecting election integrity in the future?

Not only is federal authority over election laws not solely within the executive branch, it’s not even primarily in the executive branch. Congress sets the terms for any sort of federal engagement in elections: The executive branch does what Congress gives it authority to do. That includes federal funding for election infrastructure, which depends on Congress and which is really a dire emergency at this point. The substantive federal laws that exist — like the Voting Rights Act, the National Voter Registration Act and the Help America Vote Act, and laws like the Americans with Disability Act that affect voting but apply far beyond elections — are powerful, but also limited in scope. And to the extent those laws depend on litigation as a means of enforcement, that implicates still another branch of federal government: the judiciary, which has the final say about what federal law requires in any individual instance.

Now, when I say that Congress sets the terms for federal engagement in elections, I mean that it sets the terms by passing laws, through both chambers and via a presidential signature or a veto override. The House acting on its own is a lot more limited, and, yes, you’ll hear about a lot more oversight hearings in the coming years, whether the things being investigated warrant oversight or not. But I don’t want to suggest that frivolous oversight hearings are the only danger of the current climate. When officials who are supposed to be national leaders deny the results of legitimate elections, that has serious consequences. As just one example, it reduces confidence in parts of the elections process that haven’t given cause for our skepticism. When citizens wrongly believe that the elections are rigged, they may sit them out, or try to change through violence what they feel can’t be changed through a ballot.

Conversely, what means are at the disposal of the executive branch, which is held by Democrats, to preserve election integrity in the future?

Well, again, the federal executive branch does what the legislature allows it to do. The most visible version of that is probably through enforcement of federal laws like the Voting Rights Act by the Department of Justice, though DOJ now has to operate in a climate where the Supreme Court has sharply cut back on their available tools, and may soon cut back even further. Congress has debated updating and expanding the tools by which the Justice Department can preserve election integrity, and I really wish they’d follow through.

But beyond the most visible newsworthy lawsuits, federal agencies are operating to help state officials ensure the integrity of the process in lots of ways: For example, the United States Postal Service helps track and secure election-related mail (including but certainly not limited to mail ballots), the Department of Homeland Security helps states maintain cybersecurity for large systems like voter registration databases, and the federal Election Assistance Commission helps update standards for the security of voting machines. The General Services Administration helps give out basic information about the voting process, in a bunch of different languages. Even agencies like the Department of Commerce have a role in ensuring that the supply chain keeps working as it should to get state officials the equipment they need.

In addition to all of this, President Joe Biden issued an executive order in March 2021, on the anniversary of the Bloody Sunday march in Selma, Alabama, directing every executive agency to examine its own authorities and to do whatever it could lawfully do to promote information about the elections process and further opportunities for eligible citizens to participate. That’s still being implemented. But there are already some pleasant surprises: For the first time ever, state officials have designated federal agency programs as one-stop voter-registration agencies, so that eligible Americans can get registered while they’re doing other paperwork, just like you can register when you update information with the DMV. The first two federal programs ever were Tribal universities run by the Department of the Interior, with Republican officials in Kansas and Democratic officials in New Mexico agreeing that students should be able to register at they same time they signed up for class. The Department of Veterans Affairs has also announced some new partnerships; more agencies are similarly on the way. Getting more underserved Americans on the rolls accurately, at the right place, is a big step forward for election integrity.

You’ve held a position in the Department of Justice that was involved in matters of election integrity. Do you think your former colleagues should expect to spend a lot more time making appearances before House committees in the next two years?

I do, yes, but not because of anything specific they’ve done. The mood in the House these days seems to be political vengeance, and I’m afraid that means hearings that are designed more to produce sound bites than they are to investigate wrongdoing. And that means calling federal officials to show up and be yelled at, mostly for the benefit of the congressional member’s next election ad. I’d love to be very, very wrong about that — but the early signs aren’t encouraging.

That said, I don’t think the prospect of additional time on the Hill is likely to change anything that the officials at the Department of Justice — either political appointees or career civil servants — are either doing or not doing. The leadership of the DOJ in the Biden administration has been extremely careful from the start to keep focused on the right thing: following the facts and the law wherever they may lead, heads down, and trying to ignore the surrounding noise. That’s always been the way the career civil servants do their work. And they’ve all been extremely careful to ensure that any case is buttoned up, with t’s crossed and i’s dotted, before proceeding. They’ve acted up to now based on the law, not based on what individual congressional committee chairs may think, and I don’t think that changes one iota with the change in partisan control of the House.

Justin Levitt is a professor of law and Gerald T. McLaughlin Fellow at the LMU Loyola Law School. An expert in constitutional law and the law of democracy, he served from 2021–22 as the White House’s first senior policy advisor for Democracy and Voting Rights. Levitt had previously served in the federal government as a deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice. Prior to the 2020 general election, Levitt appeared on the LMU Magazine podcast “Off Press” to discuss the prospect of election chaos.