What will the institutions of liberal democracy do when Republican officials simply refuse to concede Democratic victories? The question isn’t as far-fetched as it may seem, and the reckoning may be coming far sooner than most expect.
The entire left-leaning political world has spent the months after the 2020 election obsessed over the fairness of elections, and conservative attempts to rig the vote through gerrymandering and voter suppression. This is for good reason, of course: Republicans know they lack the support to win majority support in a fair contest, but believe they have the right to rule nonetheless for reasons that ultimately boil down to white supremacy, religious dominionism and antiquated patriarchal beliefs. So Republicans have been busy passing bills to restrict voting among young people and non-whites, while doing their best to ensure that exurban conservative whites continue to be dramatically and unfairly overrepresented in the House, Senate and Electoral College.
But there’s another even more sinister trend among conservative politicians that deserves greater attention: an unwillingness to concede any electoral victory by a Democrat as legitimate, and an eagerness to punish any Republican elected official who concedes the will of the voters. The Big Lie that Trump really won the election is now canon among a majority of Republican voters. Any Republicans who refuses to toe the line is branded a heretic, and elections officials who dared to certify Biden’s win are being censured or stripped of their power. Arizona Republicans have sponsored a bogus “audit” of the election full of crackpot conspiracy theories, and Republican legislatures have been busy taking control of both running and certifying elections out of the hands of county officials in Democratic-run cities and counties. The context of the January 6th insurrection at the Capitol was the attempt by Congressional Republicans to refuse to certify the Electoral College tally, in the hopes of sending the election back to gerrymandered Republican state legislatures, thus handing Trump a win as part of a anti-democratic coup. It was a physical coup attempt designed to intimidate Congress into enforcing a legislative coup. Republicans who refused to back the latter are facing steep primary challenges.
It’s hard to overstate how dangerous this is, and what its consequences might entail in the very near future. As Greg Sargent notes, the “GOP appears to be plunging headlong into a level of full-blown hostility to democracy that has deeply unsettling future ramifications.”
Biden’s electoral college win was only certified because enough Republican secretaries of state and county election board officials did their duty to democracy and resisted pressure to thwart the will of the voters. Every lever of Republican power has since been wielded to punish them. Minor county board officials have been receiving organized harassment and death threats. Georiga Secretary of State Raffensperger is not only facing a major primary challenge, he was also stripped of his power to certify the election in the future. Every Republican not already committed to preserving their power by any means necessary has been put on notice that if they do not cooperate they will be physically threatened and politically replaced.
So what happens in 2024 if President Biden or Vice President Harris win the Electoral College, but local Republicans on county boards with majority Democratic votes refuse to certify the election; when state legislatures who have seized control of certification refuse to certify their state tallies; when a potential Republican majority in the House of Representatives refuses to certify the Electoral College tally? What happens when they refuse to certify Democratic wins in purple state Senate races, throwing control of the Upper Chamber into limbo and chaos? What happens if Biden/Harris wins the popular vote by 8 million votes and 30 electoral college votes, only to see Republicans in states like Georgia and Wisconsin decide that their GOP legislatures will send electors for Trump or Tucker Carlson or Josh Hawley instead? What happens if Democrats legitimately add to their lead in the Senate, only to see Republicans refuse to certify those tallies as well, keeping GOP Senators in place for the next session?
The short answer is that the matter would go to the courts. The clear rule of law says that state legislatures cannot overrule the will of the voters. But if the vote isn’t officially certified, there is no official will of the voters. There are laws stating that elections must be certified by certain dates, but there a dearth of precedent around what happens if they don’t. And given the Trump administration’s stacking of the lower courts and the wildly conservative imbalance on the Supreme Court, it’s not clear that the outcome would favor the preservation of democracy. Nor is it clear that the matter would be resolved in time to prevent civil conflict–or, in fact, that Republicans in the state or federal legislative branches would honor the Court’s authority should it side against them.
A Republican Party hostile to democracy can use America’s creaky Constitutional system to create a series of unprecedented roadblocks to majority rule. Not just by suppressing the vote or drawing unfair districts, but by refusing to accept the vote itself. The result could throw the nation into political violence unseen since the days of Ku Klux Klan terrorism if not the Civil War itself.
There are ways of addressing these problems. The role of certifying elections can be taken out of the hands of either local or state partisan officials and given to independent judicial boards, electoral courts and elections commissions as in many other developed democracies. The electoral college can be bypassed by the National Popular Vote. We can strengthen laws around the requirement to certify elections per the tabulated results, and increase the transparency and security of those results by requiring paper trails and open source software on voting machines. We can end the gerrymandering that allows anti-democracy conservatives to control legislatures and House delegations in states where the majority of the population votes against them. We can stop the end-run tactics used to take elections administration out of the hands of local officials and secretaries of state and put them under the thumb of partisan legislatures, and make it harder for legislatures to send separate slates of electors.
But to do almost any of those things would require at a minimum ending the filibuster. If Republican attempts at voter suppression and gerrymandering are not enough to spur Senators Sinema and Manchin to take appropriate action, then perhaps the threat of ending democracy itself might. The Senate won’t be a very collegial place if the country is melting down in violence from an anti-majoritarian coup.
And no, that’s not an exaggeration. Everything we’re seeing from the Republican Party is pointing directly to it in 2024.