Daniel P. Tokaji, Elections aren't Failing, Democracy Is, 48 UALR L. Rev. 329 (2026).
Abstract
American democracy is in trouble, but not because of how our elections are conducted To the contrary, election administration is one of the strongest links in the chain of democracy. For all quadrennial hyperventilation about the subject at both ends of the ideological spectrum, the U.S. system for running elections has made significant strides over the past quarter-century. While there are lingering problems in election administration and attendant litigation-most conspicuously, the calcification of the Purcell doctrine, which limits pre-election injunctions in federal court -they are not what is causing the deterioration of American democracy. It follows that further election reforms can only do so much. Improvements to .election administration and the litigation process might prevent some of the worst nightmare scenarios from becoming reality. But such changes will do little to arrest the slow deterioration of democratic norms and public faith in democracy.
This Essay (a published version of the 2025 Arnold Lecture at University of Arkansas Little Rock's Bowen School of Law) begins with a retrospective look at election administration and attendant litigation over the past twenty-five years, from the contested presidential election that culminated in Bush v. Gore through the 2024 election cycle. It draws seven lessons: 1) threats directed toward election officials must not be tolerated; 2) addressing partisan election administration is the unfinished business of election reform; 3) election litigation should be welcomed, not feared or loathed; 4) pre-election litigation is (still) preferable to post-election litigation; 5) state courts play an essential role in protecting voter rights and election integrity; 6) Trump cannot be elected President again, and the courts will stop him if he tries; and 7) the decentralization of U.S. election administration is a strength
as well as a weakness. The Essay then moves to beyond election law to the deeper problems facing American democracy, which include rising economic inequality, educational polarization, and growing distrust of public institutions. It concludes with reflections on the responsibility of public universities with respect to democracy, particularly in expanding access to higher education
