ARE WE LESS THAN TWO ELECTIONS FROM LOSING OUR DEMOCRACY?

 

                   …U.S. elections are too important for them to not be trusted

 

  Are we one or two elections away from having a national constitutional crisis?

 

There is one thing going on that is so important to this nation that seems to be ignored by most American voters.

With all the noise about working to pass the Build Back Better bill and the Voting Rights Act, which I agree are important, but what about the following:

What about the situation that we are one, maybe two, elections away from having a national constitutional crisis.

It appears that many of us have forgotten that more than a year ago, just before the 2020 Election Day, Donald Trump made it clear that he would not accept the results of a free and fair election, if he did not win. We know that too few people have paid any attention.  Many Americans were discounting former Trump’s statements as the ravings of a soon-to-be failed candidate.  In the days following the November 2020 election, Trump and his allies executed a plan to subvert those and future election results.

While that effort did fail, Republicans learned from that experience and today, they are prepared to try again in 2022 & 2024. The future of our democracy rests on whether those committed to free and fair elections will be prepared for future elections as well.

Immediately following the insurrection on January 6, Republican state legislatures began laying the groundwork for both the 2022 and 2024 elections. They have enacted new voter suppression laws optimized to disenfranchise Black, brown and young voters. They have created false narratives of 2020 election irregularities and they have rallied their supporters around Trump’s Big Lie. 

Most recently, they began using their power in the redistricting process across the nation, to ensure Republicans take over and control the U.S. House over the next decade.

Meanwhile, Democratic efforts in the states have been extremely limited in comparison. In fact, many of the nation’s election and political experts have said they they expect the GOP to take over both the House and the Senate in the 2022 election.  And today, already 54% of all 50 U.S. states are run by GOP legislations.  So, they are already ahead of the Democrats and most of those states are either passing voter restrictions or they are redistricting their districts to give them a demographic advantage.

Where the GOP controls state power, Democrats have not expanded voting rights at the same pace as Republicans that have restricted them. Even the mostly blue, New York state, still has many restrictive voting laws, including a ban on providing food and water to voters waiting in line at the polls. 

Today, Virginia requires an official ID to vote in person and all their “votes-by-mail” require a witness signature in order for the vote to count. Colorado, which prides itself on its vote-by-mail law, but they rejected 29,000 mail-in ballots in 2020.  Two-thirds of those votes were from voters under the age of 35.  In other words, 29,000 votes, of which, most were probably for Joe Biden, not Donald Trump.

At the federal level, Democrats have proposed two pieces of significant voting rights legislation, the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Together they would rival the magnitude of the 1965 Civil Rights Act.  However, those acts have a snowball’s chance in hell as neither act has any prospects for success as long as the Senate’s filibuster rule applies.

Facing this grim reality, some voters have begun to urge Congress to ignore voter suppression and focus exclusively on the potential for election subversion in 2024. “Election subversion” is where people stop trusting any of their election results.

To show why some people are concerned with this issue, here are some of the latest poll results:

Polls suggest a majority of Americans share at least some these concerns because 56% of the respondents in a recent CNN-SSRS survey said US democracy is under attack.  The poll said that 34% percent said democracy is being "tested,” while only 6% said it is in no danger.

 

Trump's unceasing and unfounded claims that the November 2020 presidential vote was "stolen" by the Democrat, Joe Biden, have seeped into the political bloodstream.

The poll said that 78% of the Republicans surveyed by CNN-SSRS said they do not believe Biden legitimately won the presidency.  And that is a figure in line with the findings of other opinion polls.

"It's a new phenomenon in American elections," said Edward Foley, a constitutional law professor at The Ohio State University.

Specifically, the GOP obsess over the outdated and imprecise American Electoral Count Act, which is the process by which states select and Congress certifies presidential electors. 

While no one questions that this Act needs reform, the idea that we can fix democracy simply by revising this one law is simplistic and totally wrong. It ignores the fact that election subversion begins with the rules used for voting and continues through the state certification processes. It also ignores the reality that presidential elections are not the only ones being targeted for subversion.

This misguided effort ignores the fact that voting rules that maximize participation result in fewer disputed outcomes, while complex and restrictive rules create a larger pool of disputed ballots that can be used to justify post-election challenges. 

Republicans learned from 2020 that the absence of virtually any fraud was a stumbling block to their efforts to overturn elections. Since they cannot force voters to commit fraud, they are redefining the term “fraud”. Several states, including Georgia, Iowa, Kansas and Texas, have criminalized election practices that were previously legal. Some of these laws target specific voters, whereas other provisions are aimed directly at the election workers.

The result is the same. The goal of these new provisions is to manufacture today’s “fraud”, where none exists.

By manufacturing fraud, Republicans have created controversy that can be exploited after every Election Day by Republican candidates who do not prevail. The fake outrage created by the right-wing echo chamber goes directly against the election workers and it provides excuses for disregarding the election results.

Republicans are also deeply invested in making key changes to the vote-counting process.

In Georgia and Arkansas, the legislature has given Republican-controlled partisan election boards even more power.

In Arizona, the Republican Legislature passed a new law transferring much of the power to enforce these rules away from the Democratic Secretary of State, to the Republican attorney general.  Republicans are also organizing and recruiting “Big Lie” advocates in the states to run county elections and staff local election boards.

Republicans know that the single point of greatest vulnerability for election subversion is the state certification of election results.  And each of these changes, from making voting more difficult to ensuring that those who count votes are more partisan, provides an excuse for Republican election officials to refuse to certify election results.

This why election subversion is so dangerous to a democracy.

A certificate of election signed by the Secretary of State and the governor is the golden ticket to a seat in the House or the Senate.  Without a fully executed certificate of election, Senate rules and House precedent provide no simple way for a member of either chamber to be seated.  A "certificate of ascertainment" signed by the governor determines which presidential candidate’s electors meet as a part of the Electoral College. 

As an example. if the Georgia Governor Brian Kemp and the Arizona Governor Doug Ducey had refused to sign their states’ certificates of ascertainment, President Joe Biden would have faced a difficult path to have his electors in those states recognized.  Had those two governors also refused to sign certificates of election for the three senators and eleven Democratic members of Congress elected in 2020, Democrats would have likely been in the minority in both the House and Senate.  That’s how important the issue is today

It would be troubling enough if election certifications could be sabotaged by governors or secretaries of state. Republicans are already fielding candidates for those offices who would likely block the certification of free and fair election results they do not support.  But, as Republicans demonstrated in 2020, they know how to target vulnerabilities in the system below that level.

We must begin by honestly acknowledging the scope and complexity of the problem. Pundits and law professors cannot solve this in a sound bite or a law review article. There are no simple fixes or silver bullets. The fight against election subversion is ongoing and multifaceted. We must remain vigilant and proactive in detecting and combating these threats using every tool available, including legislation, public pressure, organizing and litigation.

Critically, we must also resist the advice to disconnect the fight for voting rights from the fight against election subversion. Subverting an election is made easier by confusing and restrictive voting rules. When the process of voting has been criminalized, manufactured claims of fraud will give an easy excuse to those who seek to overturn the results. Anyone who suggests that congressional Democrats pare back the protection of voting rights to focus on election subversion neither understands the problem nor Republican motivation and strategy.

Additionally, we need to recognize that protecting election officials’ autonomy can be dangerous.

We must reject efforts to conflate the interests of election administrators and the interests of voters. When enacting new laws and policies, we must focus on voters while being skeptical of election officials’ claims of inconvenience or secrecy. Some election workers will do the work of democracy. But others will try to subvert it. We cannot build a system that lionizes all election officials and fails to provide the tools to remove those who are undermining the will of the electorate.

For its part, in addition to expanding and protecting voting rights, Congress must reform the state election certification process.

Congress must also clearly spell out that the role of canvassing boards and state officials in performing their duty to certify elections is absolute.. It must limit the ability of those officials to rely on any information or allegations other than the actual election returns from the precincts and counties. And, it must provide a clear private right of action for candidates to sue election officials who fail to perform their duty.

Finally, we must invest in electing Democrats to offices responsible for that election certification. This means spending more money to elect Democratic governors, Secretaries of State and county officials. It also means recruiting good and honest people to serve as poll workers and on local and county canvassing boards.

There is no doubt that we are only one, maybe two, elections from that constitutional crisis.  The fear is that those who support democracy are not as prepared or as focused, as those who seek to subvert it.

I hope I am wrong, but now is the time to act.

Copyright G. Ater 2021