For most of this country's history, we have relied on human eyes and ears to oversee our system of elections. Modern surveillance tools, from cell phones to video streaming platforms, are now cheap and ubiquitous. Technology holds great promise to increase election transparency. But the 2020 election confirmed what has become quite clear: the use of technology to record election processes does not always serve the goal of reassuring the public of the integrity of elections; in fact, it can do the opposite. As legislatures around the country reexamine rules governing elections following the 2020 election, an underexplored question is whether election surveillance should be promoted or curbed. The line between democracy-enhancing election transparency and civil liberty-trampling election surveillance is fuzzy. This Article examines the history and present of election surveillance and reviews legislation and litigation surrounding it. The goal is to better understand how election surveillance can promote confidence in election outcomes while dodging the dark sides of both transparency and surveillance. As historic levels of public mistrust of election outcomes threaten American democracy, Election Surveillance examines these urgent questions.

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57 Wake Forest Law Review 289-351 (2022)

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Election Law Commons