Wilson Distinguished Lecture: Barry Berke on Elections, Trust, and the Fight to Preserve the Republic

Barry Berke began Sanford’s Fall 2024 Wilson Distinguished Lecture by referencing another beginning: the signing of the U.S. Constitution. Repeating Benjamin Franklin’s famous quote, Berke reminded the audience that the U.S. is “a Republic… if you can keep it.”

Berke, an esteemed trial lawyer, former chief impeachment counsel to the U.S. House of Representatives, and proud Duke alumnus, delivered his lecture in Sanford’s Fleishman Commons. Co-sponsored by Polis: Center for Politics and Duke Law, the event marked the conclusion of Sanford's lectures in Duke’s centennial year.

Berke offered an insightful analysis of the evolving challenges and resilience of the American electoral system, drawing on his vast legal experience, including his leadership in high-profile impeachment proceedings. Blending historical perspective with practical insights, he underscored the enduring importance of trust, education, and bipartisan cooperation in preserving democracy. Through his reflections and expertise, here are some highlights of Sanford’s final distinguished lecture of 2024.

The Complex Legacy of U.S. Elections

Image

Berke began by reflecting on his introduction to electoral politics during his undergraduate years at Duke. Volunteering for Jim Hunt’s 1984 Senate campaign against Jesse Helms, Berke recounted the campaign's unexpected loss as a profound learning moment. He remarked, “Elections are complex things… and to expect the unexpected.”

This personal anecdote served as a prelude to a broader discussion on the historical evolution of the U.S. electoral system. Highlighting critical moments such as the contentious 1800 election and the razor-thin Bush-Gore contest in 2000, Berke described how these disputes exposed the system’s vulnerabilities. While rare, he emphasized that close elections “reveal the limits of our laws and force us to confront the fragility of our democracy.”

The 2020 Election: A High and Low Point

The 2020 election, held amid the COVID-19 pandemic, emerged as a central theme in Berke’s lecture. On one hand, it demonstrated the resilience of American democracy, with record voter turnout enabled by expanded mail-in voting and bipartisan state-level initiatives. Berke hailed it as “a high point of democracy, where states across the country rose to the occasion under extraordinary circumstances.”

On the other hand, the election was plagued by false claims of fraud and attacks on its integrity. Reflecting on the aftermath, Berke stated, “What should have been a celebration of democratic participation became a nadir of trust in our electoral process, culminating in the unprecedented violence of January 6.”

Berke noted the critical role courts played in safeguarding the process. Of the 62 lawsuits filed contesting the results, 61 were dismissed. He praised the judiciary as “an effective institutional guardrail, rejecting baseless allegations and upholding the integrity of the vote.” Equally important, he commended state officials, regardless of party, who upheld their oaths under immense pressure. “There are heroes at every level of government—unsung champions of democracy who did the right thing when it mattered most,” he said.

Reforms and Challenges

Berke highlighted the reforms that followed the 2020 election, particularly the bipartisan Electoral Count Reform Act. This landmark legislation clarified the Vice President’s ceremonial role in certifying election results and set stricter requirements for contesting electoral votes. “For the first time in 135 years, we addressed key flaws in the system. It was a rare moment of bipartisan agreement to strengthen our democracy,” Berke remarked.

However, he warned that unresolved ambiguities remain. For example, what constitutes a “failed election” under the Constitution remains unclear, and state legislatures' authority in certifying electors remains a point of contention. “Sophisticated actors on both sides are now acutely aware of these vulnerabilities,” Berke cautioned, “and they could be exploited in ways we haven’t yet imagined.”

Q&A with Duke Law Moderator

In the Q&A session moderated by Duke Law Professor Donald Beskind, Berke expanded on the themes of election integrity, education, and public trust, answering questions from both Beskind and audience members.

Image

The Role of Education

Asked how to improve the electoral process, Berke emphasized the importance of public education to counter misinformation and foster trust. He explained, “When people understand how elections work, they defend the process, regardless of their political beliefs. Education is key to demystifying elections and preparing people to think critically about claims of fraud or unfairness.”

Berke shared his admiration for state and local election officials, calling them the backbone of the electoral system. “I’ve seen again and again how officials, whose candidates lost, upheld the process because of their commitment to democracy. They are true heroes, even though their work often goes unnoticed.”

Mandatory Voting and Broader Reforms

When asked about mandatory voting, as practiced in Australia, Berke noted that such a system would require significant cultural and legal changes in the U.S. He acknowledged that the Constitution leaves many electoral principles undefined, which can lead to disputes. “The Constitution anticipated that Congress would fill in the gaps, but many principles remain ambiguous even now,” he explained.

This ambiguity, Berke argued, is not necessarily a flaw but a reflection of the founders’ expectation that future generations would adapt the system as needed. He cited the post-2020 reforms as examples of how crises can lead to meaningful change.

Litigation as a Catalyst for Reform

Image

Responding to a question about proactively addressing vulnerabilities, Berke noted the difficulty of achieving reforms in today’s polarized environment, where debates over election laws often hinge on partisan advantage. However, he highlighted the rare bipartisan cooperation that followed the 2020 election, describing it as “proof that even in divisive times, we can come together to strengthen democracy.”

Trust and Integrity in Elections

Throughout the discussion, Berke stressed the importance of trust and integrity in elections. He warned that the normalization of baseless fraud claims could have long-term consequences. “In 2020, we saw how easy it is to make a claim, but proving it requires evidence. The danger is that repeated falsehoods can erode trust, even when courts reject them,” he said.

Berke also reflected on his experience during the second impeachment trial of Donald Trump, which centered on the events of January 6. Describing it as a uniquely challenging trial, he noted, “Our jurors were victims. The trial took place at a crime scene, and it was crucial to show that January 6 wasn’t just about one day—it was the culmination of sustained efforts to undermine trust in the election.”

Looking Ahead: The Future of U.S. Elections

Berke closed the session by looking to the future, warning that unresolved issues from past elections could resurface in subsequent contests. He emphasized the need for vigilance, education, and bipartisan commitment to preserving electoral integrity. “It’s not just about the right to vote; it’s about the right to have every vote counted and every result respected. If we lose faith in that process, we risk losing the Republic itself,” he said.

Final Thoughts: Preserving the Republic

Berke finished his remarks with an appeal for collective responsibility in safeguarding democracy. Quoting Benjamin Franklin’s challenge again—“a Republic, if you can keep it”—he reminded the audience that the future of democracy depends on public trust and engagement.

“Elections are the foundation of our democracy. They demand trust, integrity, and the will to rise above personal and political disappointment. We must respect the process, even when our candidate loses, and ensure that the system works for everyone.”