Don't Expect Perfection in the Election | Opinion

The 2020 presidential election will be imperfect. There will be some voter fraud. There will be some voter suppression. There will be mistakes, late ballots, unreadable mail-ins and other imperfections. That is the nature of modern elections—even without foreign efforts to interfere.

We must do all we can to minimize over or under counting votes. We must also recognize that in an imperfect world with imperfect voting mechanisms, the end result will not be a perfect representation of the intent of American voters.

Nor will this be our first imperfect election. In 2000, George W. Bush was elected president by the tiniest margin—fewer than 600 votes in the state of Florida. Having been part of the legal team challenging that result, I have absolutely no doubt that more—many more—Floridians intended to vote for Al Gore than for George W. Bush. In Palm Beach County alone, hundreds of votes were accidentally cast for Pat Buchanan because of the illegal and confusing butterfly ballot. Had those votes and others, clearly intended for Gore, been counted for him, Bush may well have lost Florida by a decisive number and the case would never have ended up in the United States Supreme Court, which improperly stopped the recount in a 5-4 vote along party lines.

Going back further in time, many experts still wonder about the validity of John F. Kennedy's victories in several primaries as well as in the general election. Both Nixon and Gore eventually conceded defeat and allowed for a peaceful transition of power.

In the 19th century, there were several contested elections, including some that were decided by corrupt bargains. Things have actually gotten better over the years, especially with the enfranchisement of many more voters and with improvements in voter security. But of course, the more voters we have, the greater the chances of imperfection. That is the price we pay for the goal of universal suffrage.

In the bad old days when only property-owning white males voted, it was easier to keep track of the relatively small voter pool.

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An election worker processes absentee ballots at State Farm Arena on November 2, 2020 in Atlanta, Georgia. Megan Varner/Getty

There will always be some proper votes that are not counted and some improper votes that are. We should try to minimize both. But as a matter of policy and of law, we should always err on the side of inclusion rather than exclusion. Better a few improper votes be counted than many proper votes be discounted. Historically, there has been far more voter suppression than voter fraud, and the suppression has disproportionately affected minority voters. So the emphasis should be on eliminating voter suppression, while minimizing voter fraud.

To be sure, there is the risk that counting even a few improper votes could determine the outcome of an election, but the risk is even greater that leaving many proper votes uncounted can determine the outcome. That is plainly what happened in 2000, when voter suppression—both deliberate and inadvertent—skewed the votes away from the Democratic candidate in Florida.

When the polls close in this election, there will be complaints from both sides. Democrats will claim voter suppression. Republicans will claim voter fraud. Each side will have points to score. They will be able to demonstrate their claims anecdotally and perhaps statistically. One or both will surely seek relief from the courts, particularly if the election is very close in swing states. But in considering these claims, the courts should understand that perfection is impossible and that both law and policy should err on the side of inclusion rather than exclusion.

Voters themselves can reduce imperfections on both sides. Be persistent. Overcome efforts to discourage you. Be careful. Don't give the other side an excuse to invalidate your vote. Vote early. And most important: VOTE. The major cause of imperfect voting is self suppression: eligible voters who simply don't cast a ballot. Don't be a cause of imperfection in the 2020 election. Vote.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. His podcast "The Dershow" can be found on Spotify, Apple and Youtube.

The views expressed in this article are the writer's own.