If you listen to some leading liberal voices, the Senate defeat of the Freedom To Vote and John Lewis Voting Rights Advancement Acts could sound the death knell of American democracy.
In a Wednesday speech held before the Senate votes, President Joe Biden warned of future stolen elections: “the prospect of [an election] being illegitimate is in direct proportion to us not being able to get these reforms passed.” Mother Jones’s Ari Berman, a leading journalist on the democracy beat, argued that the Senate is “killing the Democrats’ last, best chance to protect American democracy.”
Biden and Berman are right that American democracy is heading toward some sort of crisis, and there’s good reason to think these bills would have improved the long-term outlook. But the reality is that the bills Democrats sought to pass were hardly the “last, best chance” to act in democracy’s defense.
For all the good they would have done, the bills would only have had a limited effect on the biggest short-term threat to American democracy: election subversion, in which partisan political actors distort or outright disregard legitimate election results. The battle against these tactics was always going to take place in multiple arenas, most of which are outside of Washington.
Across the country, at the state and local level, Trump supporters are volunteering or running for local positions that would put them in charge of the mechanics of elections. According to an NPR analysis, at least 15 Republicans who doubt or deny the legitimacy of Biden’s election victory are campaigning for state secretaries of state. For anyone concerned with American democracy, defeating these candidates should be a priority.
At the federal level, Republicans have signaled openness to reforming the Electoral Count Act (ECA) — the obscure federal law that opened the door to then-Vice President Mike Pence potentially overturning the 2020 election at Trump’s behest. The reform isn’t perfect but it’s worth pursuing, especially since a bipartisan coalition in the Senate might be willing to consider it.
These fights — contesting thousands of local elections and passing less ambitious but bipartisan reform legislation — may not be as emotionally satisfying as landmark elections overhaul. They won’t address voter suppression and gerrymandering, which still pose challenges for American democracy. But they do move the needle in ways that the doomsaying this week can obscure.
The Democrats’ two bills would have addressed some large and significant problems, most notably state laws to suppress the vote and extreme partisan gerrymandering. These state efforts tilt the playing field in the GOP’s direction and create significant burdens on groups attempting to get voters from minority communities to the polls; there is a reason why leading experts on democracy widely supported the Democrats’ voting rights proposals.
And yet the impact of these bills’ failures might not be as significant as some fear, at least when it comes to the next election cycle.
Studies suggest that voter ID laws, for example, don’t significantly depress minority turnout. It doesn’t make such laws okay, of course — they sap valuable activist resources and there’s little doubt about their racist intent — but it’s worth noting that the evidence suggests their effects on election outcomes is fairly limited. Partisan gerrymandering remains a problem, particularly at the state legislative level, but the current round of House redistricting is turning out far less tilted in the GOP’s direction than Democrats had feared.
Republicans are certainly still working to erode Democrats’ access to the ballot box, in ways that really do threaten American democracy. But their work has not been quite as effective as some dire analyses assumed (including my own), giving reformers more time to come up with solutions before the system is past the point of no democratic return.
The story is different when it comes to election subversion. Anti-democratic forces are moving to seize control over the system more swiftly than even some of the most pessimistic analyses had feared.
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Election subversion can happen in different ways at different points in the byzantine American electoral process. During the actual vote count, partisan local election officials could deem Democratic ballots illegitimate on specious grounds or invent Republican ones. If this fails, Republican state election officials could refuse to certify a Democratic victory. Even if a presidential election is certified, a GOP-controlled state legislature could send an alternative slate of electors to the Electoral College. And if Democrats are still winning, a GOP vice president or Congress could assert power to overturn the election on their own.
None of this is hypothetical: The Trump campaign and its allies tried every one of these tactics in 2020, and failed over and over again because public servants at key points in the system did their jobs. But the former president’s camp is working assiduously to improve their chances in 2024.
Across the country, Republican partisans motivated by Trump’s lies are flooding precincts and contesting election administration positions. Georgia’s new election law, SB202, gives the Republican legislature power to seize partisan control over local election administration. The Republicans that held the line against Trump’s attempt to decertify elections in 2020 — like Michigan Board of State Canvassers member Aaron Van Langevelde — are being sacked by their own party. Many Republican candidates for state secretary of state in 2022 have publicly advanced Trump’s Big Lie; several have reportedly formed an informal coalition aimed at rewriting US election rules in their party’s favor.
And all of this is backed by a Republican base that overwhelmingly believes Trump’s lies about a stolen 2020 election and a propaganda network, ranging from Fox News to Steve Bannon’s “War Room” podcast, aimed at ensuring their minds are never changed.
The voting rights legislation would have helped address some of the concerns about voter suppression. The Freedom to Vote Act, in particular, included chain of custody provisions that make it harder to outright manipulate vote counts and safeguards against state governments from removing election officials from their positions absent “good cause.”
But even if these provisions worked as intended — a big if given GOP control over federal courts — they don’t go far enough. They do not prevent Republicans from refusing to certify election results, sending an alternate slate of electors to Washington, or otherwise seeking to overturn the results in January.
“If you look at 2020, we came much closer to a successful subversion of the election results than a lot of people understand,” Rick Hasen, an election law expert at University of California Irvine, told my colleague Fabiola Cineas. The bills that failed in the Senate “would not have done much on the issue of election subversion.”
If the 2024 election is close, American democracy is heading toward a potential crisis.
But let’s not mistake that dismal assessment as the epitaph for democracy.
In their book Dictators and Democrats, political scientists Stephan Haggard and Robert Kaufman analyze what causes countries to transition from democracy to autocracy — and vice versa. One of their core findings is that, when a democracy is tottering, laws provide less of a bulwark on their own than most people think. Rules need people to help enforce them; when it comes to democracy, one of the law’s best guarantors are the citizens themselves.
The key to nearly every effective subversion strategy is control over institutions: when Trumpists are in positions of power, they get to set the rules of the game. If Democrats, non-partisan actors, or principled Republicans hold key jobs, as they did in 2020, the Trumpists can’t break the system.
So in 2022, many of the biggest fights for democracy are hyper-local: races for county executive, judgeships, election administration positions, and statehouses. If pro-democracy candidates can win these races in large numbers, they will collectively pose a significant barrier to an election subversion campaign in 2024.
There is a nascent infrastructure for competing in such races. Run For Something, a liberal group that encourages young candidates to run for state and local office, has launched a multi-million dollar effort to contest positions that “relate to local election work” — a direct effort to fight back against election subversion. Amanda Litman, the group’s founder and executive director, told me that she is hoping to field candidates in roughly 2,000 such races in 2022 alone.
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But they need more people to run in these races. And Run For Something candidates, in turn, need volunteers and donors who can power their races against anti-democracy, pro-Trump candidates.
This is the kind of effort liberals need to look toward today. Paradoxically, the failure of voting rights bills in Congress could give this cause a boost by directing activist energy away from Washington.
“Democrats and liberals in general look to and make demands of the White House and DC when they have officials in power there,” says Theda Skocpol, a Harvard political scientist who studies political movements. “That is actually a weakness, because the focus needs to remain bottom up.”
But Washington can’t be ignored entirely. Some election subversion problems — most notably, a repeat of Trump and congressional allies’ effort to overturn the election on January 6, 2021 — can only be solved at the federal level.
Some of the most important vulnerabilities can be addressed by reforming the Electoral Count Act, a confusingly worded law from 1887 that currently governs the final stages of presidential elections. The law sets the procedures by which Congress certifies the results of the Electoral College tally, allowing simple majorities in both houses to reject the electors if they so choose. It also does not clarify the vice president’s constitutionally mandated role in supervising the certification process, opening the door to Trump’s effort to pressure Mike Pence to reject the election results.
The congressional count creates an obvious point of vulnerability in a presidential election: a malign party that controls both houses could, in theory, overturn the results of a legitimate election. But at the same time, it is also a bulwark against some state-level election subversion — a statehouse deciding to appoint its own competing slate of electors to the Electoral College. The Electoral Count Act would allow Congress to reject the statehouse-appointed electors and replace them with ones who actually reflect the will of the voters.
Reforming the Electoral Count Act thus means striking a balance between blocking undemocratic action at the federal level while preserving a bulwark against it at the state level. But legislators can craft a reform that addresses these nuances. The Washington Post’s Greg Sargent reports that Sen. Angus King (I-ME) has a draft of an Electoral Count Act reform bill that would address these concerns by clearly prohibiting vice presidents from going rogue, requiring a supermajority to reject electors in Congress, and creating a judicial review mechanism that could block state legislatures from sending their own electors to Washington.
Something like King’s bill has a chance. Senate Minority Leader Mitch McConnell have signaled openness to fixing the Electoral Count Act; a bipartisan group of about 12 senators is currently meeting to discuss a potential bill. It’s at least worth seeing if this yields something real.
Neither of these courses of action, contesting local and state elections and reforming the Electoral Count Act, are as satisfying as passing a landmark bill. Nor do they address the threats to democracy posed by voter suppression and gerrymandering. For Democrats, it’s less hitting a home run than a series of singles.
Ballgames can still be won with bloops and base hits. And Americans who care about their democracy still have agency; there are things they can do that really matter.
The future looks grim for American democracy. But liberals shouldn’t allow realistic pessimism to shade into resignation or despair. Democrats in Washington may have squandered an opportunity to safeguard future elections, but many of the key battles to protect our democracy have yet to be fought.
source https://www.vox.com/policy-and-politics/22876361/freedom-to-vote-act-senate-filibuster-what-next
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