Code Red for American Democracy
For all the uproar among Democrats over restrictive voting laws passed by Republican legislatures in 17 states, Democrats have only recently awakened to the more dangerous threat to American democracy – Republican moves to take partisan control of counting votes and even overturn the popular vote in future elections.
For months, Democrats in Congress and nonpartisan election reformers have railed against the obstacles to voter turnout from new Republican restrictions on absentee ballots, mail voting, voter registration, and early voting, which fall especially hard on minority and younger voters.
But the greater danger to American democracy and election integriity lies in the brazen GOP schemes to gain partisan control of the traditionally non-partisan process of counting and certifying the vote, by empowering Republican legislatures to disqualify the popular vote, by removing impartial election officials, including Republicans, by undercutting bipartisan election boards and by promoting pro-Trump loyalists to take charge of running elections in pivotal states like Georgia, Arizona and Wisconsin.
Act Two of “The Big Lie”
Call it Act Two of “The Big Lie,” the Republican action plan to manipulate the rules, change the process and prepare to alter the vote count in 2022, 2024 and beyond. But for months, the big Democratic election reform bills in Congress, the For the People Act and the John Lewis Voting Rights Act, ignored the GOP plot to subvert the popular vote. Only now are counter-moves surfacing in Congress.
What makes the GOP action plan so menacing is that it builds on the Trump plot to change the outcome of the 2020 election. In his final month as President, Donald Trump went to war against our constitutional democracy on multiple fronts. The mob attack on Congress was just the most visible ploy.
Behind the scenes, Trump was simultaneously putting intense pressure on his Acting Attorney General, Jeffrey Rosen, to declare vote fraud, and when Rosen refused, Trump prepared to fire Rosen and replace him with a loyalist primed to do Trump’s bidding. Only the threat of group resignations of Justice Department and White House lawyers stopped Trump.
In a second desperate gambit, Trump placed a secret phone call to Georgia Secretary of State Brad Raffensperger on January 2 and demanded that Raffensperger “find 11,780 votes” so that Trump could win Georgia.
The day after that, Trump summoned Vice President Mike Pence to the Oval Office and had conservative lawyer John Eastman lay out a step-by-step game-plan for Pence, on January 6, simply to reject Electoral votes from swing states like Georgia, Arizona, and Pennsylvania that had been won by Joe Biden, and then declare Trump had won re-election.
Election Guardrails Are Now Being Targeted
Fortunately, constitutional Republicans like Pence, Rosen, Raffensperger, Republican supervisors in Arizona’s Maricopa County, (Phoenix area), and election board officials in Michigan refused to kowtow to Trump’s dictates. So the 2020 election withstood the Trump storm.
But this year, Trump loyalists are out to erode and override the election guardrails. They have targeted the procedures, institutions, and individuals who stood in Trump’s way after the last election. In multiple states, Republican legislatures have moved to take control of the machinery of elections and post-election vote counts.
“Election subversion ” is what election law attorneys politely call this. But in hardball politics, it amounts to “the real steal,” an aggressive stealth cabal that is underway in key states like Arizona, Georgia, Pennsylvania, Wisconsin, and Texas.
Massive 2020 Turnout Triggered GOP Tactics
Ironically, what triggered the GOP plot for usurping the popular vote was the stunning success of the 2020 election. Contrary to Trump’s ”Big Lie,” the 2020 election was a blowout. Despite fears of Covid, the pandemic actually caused many states to open up voting and that generated the best voter turnout since 1908 – 68% of eligible voters cast ballots.
In all, 158 million Americans voted -101 million voted either by mail (65 million) or voted early in person (36 million), far more than the 57 million voting on Election Day. That big 2020 vote benefited from a decade of political reforms that expanded mail voting, early voting, and easier registration.
So today, the U.S. has a more accessible voting system than two or three decades ago. Forty-five states and the District of Columbia now permit early voting. Thirty-four states and DC permit absentee mail voting, no excuse required. Seven states vote entirely by mail. All this has helped boost voter turnout, especially among Blacks, Latinos, and younger voters.
Supreme Court Judges Embolden the GOP
In a fearful backlash, Republican strategists have responded with a two-pronged strategy to turn back the clock: (1) by making it harder for some Democratic-leaning voters to cast their ballots; and (2) by engineering ways for Republican-controlled legislatures or election officials to disqualify and/or change the popular vote.
Republicans claim legal legitimacy from a little-noticed concurring opinion in the Supreme Court’s decision that rejected Democrat Al Gore’s legal challenge to George W. Bush in the 2000 election. Three judges, led by Chief Justice William Rehnquist, declared the Independent Legislature Doctrine, asserting that the Constitution gives state legislatures final authority to determine their state’s Presidential Electors and thus potentially the power to set aside the popular vote.
With that legal backstop, the Georgia legislature has moved boldly. It passed a law firing Brad Raffensperger, the elected Republican secretary of state who resisted Trump, as chair of the state election board and named its own appointees to the board. And it empowered the state board to step into any Georgia county and replace local county election officials.
Then in August, the state board opened an investigation of the Fulton County election board, covering heavily Democratic Atlanta. Critics fear this is Step 1 in a state takeover of the Atlanta election vote count in 2022.
Trump Camp Goes After Key Election Posts
In Arizona, the Republican-led legislature curbed the power of the Democratic Secretary of State in future elections and ordered a post-mortem “audit” of the 2020 popular vote in Phoenix and Maricopa County, where Joe Biden won his margin of victory. Although the review, done by Cyber Ninjas, a private firm headed by an openly pro-Trump CEO, confirmed the 2020 results, Republican lawmakers now claim precedent for them to “audit” and certify future election results.
Similar partisan audits of voting in 2020 have been launched by Republican legislative leaders in Pennsylvania, Wisconsin, and Texas, and Trump has been pushing for Michigan, Arkansas, and Kansas to do the same. In Wisconsin, the Republican-run legislature is preparing a bill to set aside the bipartisan six-member state election commission, take control of running elections itself and bring criminal charges against five of the state election commissioners who certified the 2020 presidential vote.
On another front, the Trump camp has set out to capture control of administering elections in key states by running Trump loyalists for secretary of state, the office that manages elections in most states. In Georgia, Jody Hice, a congressman who voted on Jan 6 to invalidate Biden’s victory, is running to oust Trump nemesis Brad Raffensperger. More broadly, the Reuters news agency found that 10 of 15 declared GOP candidates for secretary of state in multiple states either echo Trump’s claim of a stolen election in 2020 or say the 2020 vote should be investigated.
“This is code red for democracy,” Jena Griswold, Colorado’s Democratic secretary of state commented to Reuters.
New Protections against Partisan Bias
Pushed by election law experts, Congressional Democrats have finally written some protections for the impartial administration of elections into a new reform bill, called the Freedom to Vote Act, negotiated with moderate West Virginia Democratic Senator Joe Manchin.
To combat partisan election gaming, this proposed legislation limits the power of state officials to remove local election officials except for gross negligence; gives local election officials the right to file suit challenging unlawful removal; and makes it a federal crime to intimidate, threaten or coerce an election official or election worker with the intent of interfering with their official duties.
The other Democratic bill, the John Lewis Voting Rights Act, moves to ensure the integrity of the vote count by requiring all states to use paper ballots to create an indelible record of the popular vote. In 2020, 12 percent voted on electronic machines which are susceptible to hacking or tampering.
But those two Democratic bills face a solid Republican stone wall and stand little chance of passing.
Is There a Chance for Bipartisan Reform?
Where there appears to be some chance of bipartisan action in Congress to avoid a repeat of the violence, uproar, and partisan conflict on Capitol Hill last January 6 is in a growing desire to modernize and clarify the Electoral Count Act of 1887. That law allowed the objections from only one senator and one representative to trigger Congressional debate over the 2020 electoral vote, with no stated guidelines on what constitutes a valid basis for raising such objections.
“We need to make that harder to do,” asserts Professor Richard Hasen of UC Irvine Law school, publicly voicing a sentiment that is privately shared by some Republican as well as Democratic senators. Under discussion are changes to the 1887 law to require a substantial number from both chambers to trigger congressional debate and to state clearly that Congress is tasked only with recording the Electoral College tally – not investigating, rejecting, or interfering in election results certified by the states and already tried in the courts
What’s more, as the 2020 election showed, we also need a law defining what constitutes illegal interference in elections by political candidates, especially those in high office running for re-election. Election laws provide for recounts, legal challenges to vote accuracy, and lawsuits by candidates or parties. But currently, no law says whether it is legal or a crime for a president or any other candidate, to secretly phone election officials and demand they “find 11,780 votes” to change the outcome.
For ordinary voters all across the political spectrum, these are now “Code Red” issues. Fear of partisan tampering with vote counts is spiking. In a recent CNN poll, 93 percent said that American democracy is either under attack or being severely tested, and slightly more than half feared that the popular vote would be overturned.
That’s an alarm bell telling Congress that the American electorate wants urgent, bipartisan action to secure an impartial vote count in future U.S. elections.