Blog No. 295. The Elephant in the Room: Voter Subversion

The elephant in the room is, alas, the Republican elephant and the grave threat that it poses to American democracy. Oddly, however, much of that elephant appears to be invisible to the Democrats, who should be the ones sounding an alarm. To be sure, Democrats have been vocal in lamenting state laws, passed or pending in Republican state legislatures across the country, that would make voting more difficult. They have responded with H.R. 1 and S.1, the For the People Act, and a more modest alternative offered by Senator Joe Manchin. Both bills put up some useful guardrails, but neither is likely to pass in the Senate, and both fail to focus on the most serious problem: that problem is not voter suppression but voter subversion.

The July 2 cover story of the Economist was titled “The real risk to America’s democracy.”

The Economist explained:

For Democrats the threat to elections is about who can cast votes. They decry changes to laws on identification, postal ballots and so on, which they call “the new Jim Crow”. Although there is no excuse for restricting such things as Sunday voting, which is popular with African-American churches, their fears are overblown. Under the old Jim Crow, only 2% of African-Americans were registered to vote in some southern states. By contrast, political scientists are unsure whether today’s schemes will affect turnout at all.

Instead the real threat comes after votes have been cast. In Arizona, for example, the legislature wants to limit the independence of the chief elections officer; a state representative introduced a law letting the legislature overturn the results of a presidential election, and then started campaigning to oversee elections herself. In Georgia the state legislature can now replace the leadership of county election boards. Texas is considering a bill that makes it easier to prosecute election officials. Across the country, the officials who administer elections in states where Republicans hold sway have been attacked for upholding the election results. Many are at risk of being replaced.

These might seem like distant, bureaucratic changes. In fact they raise the chances of a contested election that the courts cannot sort out. They weaken America’s voting system in ways that will outlast the hysteria over the 2020 result.

Despite the lack of attention from Democrats, the Economist was far from alone in recognizing the danger ahead. The Economist cited a letter from 120 scholars of democracy expressing their concern over the actions of Republican legislation in the states. While the letter covered several aspects of such legislation, it pointedly observed that:

In future elections, these laws politicizing the administration and certification of elections could enable some state legislatures or partisan election officials to do what they failed to do in 2020: reverse the outcome of a free and fair election. 

A recent NBC article was titled “What’s keeping democracy experts up most at night? An overturned election.” The article summed up the views of several election experts:

Nightmare scenarios include local or state officials refusing to certify votes, governors and state legislatures submitting electoral votes that disagree with each other or overrule the apparent vote counts, fights over the legitimacy of judges overseeing the process and the House and Senate disagreeing on the winner. A chaotic transition could create an opening for further violence, either from extremists attempting to disrupt the process again or mass unrest if the winner is viewed as illegitimate.

In a July 7 blog, Professor Michael Dorf succinctly observed:

[A]s Prof Buchanan, other observers, and I have been warning for months now, the mortal threat to American constitutional democracy is less from laws that restrict voting than it is from the state laws that assign to state legislative officials themselves or reliable Republican flunkies the power to tally, recount, and otherwise “find” votes. 

Richard L. Hasen, a prominent election law expert, wrote in the New York Times that:

A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms.

The danger of conflict and chaos at the state level is compounded by the murkiness of the Electoral Count Act. Although the provisions of the Act are conspicuously unclear, it appears to give Congress considerable latitude in determining whether to accept or reject the electoral results from individual states. On January 6, when order had finally been restored, six Senators and 121 Representatives voted unsuccessfully to support objections to the Arizona’s electoral votes; seven Senators and 138 Representatives voted unsuccessfully to sustain objections to Pennsylvania’s electoral votes. Significantly, however, The Republican legislatures in Arizona and Pennsylvania had not attempted to submit the vote by a competing slate of objectors; if they had, the vote might have been closer. And if Republicans should gain control of one or both Houses in the 2022 elections, the prospects for 2024 will be dicey indeed.

Hasen and other election officials have proposed a variety of reforms at the federal and state level, but none appear to be particularly promising. Republicans can hardly be counted on to support such reforms, and Democrats have wafer thin majorities in both Houses that could disappear entirely in 2022. Moreover, a federal bill regulating how states administer elections would not only be difficult to draft, but would face constitutional challenges. Such challenges would likely receive a sympathetic hearing in the current Supreme Court. More broadly, the courts, including the Supreme Court, performed well in 2020 in rebuffing the spurious challenges to Biden’s election. But there is no assurance that courts in 2024, newly salted with Trump appointees, will rescue democracy from aggressive maneuvers by Republican State legislatures.

Michael Dorf’s blog concluded with a grim view of the peril that lies ahead:

If Trump or some other figure were to overthrow the U.S. government through exclusively violent means, we could envision bloodshed ensuing but then a restoration. However, the more likely path to power will involve localized threats of violence but the use of the official machinery of state government, which will then be allowed to stand by the courts. The patina of legitimacy will combine with the longstanding stability of U.S. institutions to make the Trumpist usurpers’ claim to authority sufficiently continuous with what came before that even as many people cry foul, it will be difficult for organizers of widescale protests to win over the military or other insiders whose support would be necessary to oust the Trumpist regime.

Put differently, part of why I am so pessimistic about the future of American democracy is that the most likely path to displacing it will cloak the usurpers in unearned legitimacy. 

Dorf On Law

If legislative safeguards are currently not feasible, and protection from the courts is questionable, what then is democracy’s best defense? As Dan Balz observed, glumly but accurately, in the Washington Post, “Democrats currently have no easy path nor a clear strategy to counter changes in the states and the larger threat they pose.”

When legislative and judicial remedies are not available, the remaining defense to democracy must be political. More specifically, Democrats need to make the defense of democracy the central and defining issue of the 2022 elections. Democratic candidates may not readily adopt that approach, no matter how clearly they understand the dire nature of the situation. Voters, they may feel, are more interested in pocketbook issues that directly affect their daily lives and “democracy” may seem too abstract an issue. But, while that may be true in ordinary times, these times are far from ordinary, and the video footage from January 6 makes the abstract as concrete as anyone could wish. That footage can be usefully paired with footage of Trump continuing to perpetuate the Big Lie, and his followers, on Capitol Hill and in state legislatures, supporting him by demands for “audits” of the 2020 election and by ignoring or downplaying the January 6 insurrection.

Republican candidates, for their part, appear to be galloping headlong into the quicksand. A July 6 article in the Washington Post was titled ‘In ramp-up to 2022 midterms, Republican candidates center pitches on Trump’s false election claims.” As the article reported:

Across the country, as campaigns gear up for a handful of key races this year and the pivotal 2022 midterms, Republican candidates for state and federal offices are increasingly focused on the last election — running on the falsehood spread by Trump and his allies that the 2020 race was stolen from him.

While most of these campaigns are in their early stages, the embrace of Trump’s claims is already widespread on the trail and in candidates’ messages to voters. The trend provides fresh evidence of Trump’s continued grip on the GOP, reflecting how a movement inspired by his claims and centered on overturning a democratic election has gained currency in the party since the Jan. 6 Capitol attack.

Quite significantly, the embrace of Trump’s Big Lie by no means limited to candidates for federal office:

Dozens of candidates promoting the baseless notion that the election was rigged are seeking powerful statewide offices — such as governor, attorney general and secretary of state, which would give them authority over the administration of elections — in several of the decisive states where Trump and his allies sought to overturn the outcome and engineer his return to the White House.

The Republican posture is not a threat, but an opportunity that Democrats cannot afford to miss, for their sake and the country’s. Two months ago, Blog 289 suggested that:

Every GOP candidate in 2022 should be forced to answer two questions: ”Do you recognize Donald Trump as the leader of your Party?” and “Do you agree with Donald Trump that he was re-elected and that he, and not Joe Biden, is the legitimate President?” Answers in either the affirmative or the negative will be helpful. Affirmative answers will alienate Independents and many Republicans; negative answers will bring down the wrath of Trump on the candidate and cost that candidate support from the Trump base. Win-win.

That suggestion seems even more compelling today as Republican promotion of the Big Lie, from Trump on down, has become even more blatant. There are, however, two additional questions that might be added:

• Do you agree that the January 6 attack on the Capitol was an insurrection intended to prevent Congress from carrying out its lawful duty?

• Do you agree that, in a presidential election, the state legislature has no authority to set aside the popular vote and choose its own electors?

What is required is a vigorous national campaign carried out at the state and local level but with direction, funding and coordination from national leaders, notably and most importantly, President Biden. That is not a role that Biden will relish–he is clearly more comfortable as conciliator, negotiator and dispenser of empathy–but it is a role that he can and must take on. He must be made to understand that, if democracy fails in 2022 and 2024, his transformational agenda for the country will be, at most, a faint historical footnote. And that will be the least of it: we will undergo a transformation of a very different kind.