June began with a chilling statement from more than 100 “scholars of democracy” warning “our entire democracy is now at risk” because “Republican-led state legislatures” are “transforming several states into political systems that no longer meet the minimum conditions for free and fair elections.” On top of concerns about voter suppression, the scholars warned about outright election subversion: “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.”
We know how Democrats want to combat voter suppression: with the expanded voter rights and access provisions in the For the People Act. But that legislation was drafted before Georgia’s Republican-controlled government revamped its election laws. As Nate Cohn of The New York Times explained, Georgia’s new law allows “the state elections board, now newly controlled by appointees of the Republican State Legislature, to appoint a single person to take control of typically bipartisan county election boards, which have important power over vote counting and voter eligibility.”
We don’t know how Democrats want to prevent election subversion. In fact, Cohn responded to a Twitter query of mine along these lines by remarking, there is “no legislation, there’s not even a white paper, a journal article, a think tank policy brief, or anything else.” Perhaps Democrats aren’t putting much energy into broadening the For the People Act when they can’t get anywhere in the Senate with the bill as written.
So we have two challenges when it comes to the threat of election subversion: figuring out what can be done legislatively, then figuring out how it can be done politically.
Preventing the subversion of democracy is ironically complicated by the foundation of our democracy: The Constitution. That parchment reads, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” and “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to elect the president. In other words, the ultimate arbiter of who gets to be a member of the House, the Senate and the Oval Office, are politicians, not nonpartisan administrators. If the Republican Party is fully commandeered by anti-democratic forces, and holds enough power in enough state and federal legislatures, it can hack the Constitution and decide elections as it wishes.
Of course, it’s not that simple to subvert democracy. American civil religion runs pretty deep. For any Republican to brazenly flout the election results in their own state or district risks tidal waves of backlash. Moreover, “to deprive or defraud the residents of a State of a fair and impartially conducted election process” in a race for federal office, with the “procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held” can get you five years in prison under federal law.
For example, when Donald Trump told Georgia Secretary of State Brad Raffensperger to “find” 11,000 votes, if Raffensperger actually did it, he would risk prosecution. However, if Raffensperger actually conspired with Trump, the phone call between the two of them may never have leaked. As University of California, Irvine School of Law election law professor Rick Hasen told me in that scenario, Raffensperger would have been vulnerable to prosecution “if it [could] be proven. The problem is if there are steps taken that make it hard to detect such subversion.” University of Iowa election law professor Derek Muller believes intent would have been proved as well, “If you legitimately believed those votes had been suppressed or missing or there’d been fraudulent votes cast otherwise, it’s pretty difficult to prosecute you … But if the Secretary of State doesn’t believe there is fraud, but feels that he needs to sort of appease a political candidate, then it potentially rises to the level of criminal activity.”
We should note that “under the laws of the State” is an important phrase in the federal code. Theoretically, anti-democratic forces could enact state laws that legalize and ease fraudulent behavior. But those laws, and any implementation of those laws, do have to adhere to the 14thAmendment’s requirement for all persons to receive “equal protection of the laws” or risk invalidation by the Supreme Court. (Yes, Bush v. Gore and Shelby County v. Holder are cold reminders that the Supreme Court cannot be reflexively trusted, but we should also remember the current conservative-dominated Supreme Court—as well as lower courts— repeatedly rejected Donald Trump’s attempts to overturn the 2020 election.)
Anyone trying to subvert an election will also seek, however strained, a perception of legitimacy. Georgia’s state legislators can’t just take the power to decide elections from their constituents and give it to themselves without inviting furious rage. Instead, they sought control of the election boards which presumably can provide a veneer of legitimacy. But election boards still can’t commit state crimes, federal crimes or unconstitutional acts.
As Professor Hasen told me via email, “the [state] legislature could just pick a [presidential] candidate directly if the law were changed to allow that. Even for congressional elections, state legislatures can pass laws affecting the time place and manner of running such elections subject to congressional override.” But, “[h]aving a set of rules for fair elections and then subverting them by having a flunky override the rules secretly would not be within the power that legislators, or anyone else, has.” Tougher federal measures can make life harder for any unscrupulous officials to claim any such legitimacy and skirt the law.
Harvard Law professor Nick Stephanopoulos mused on Twitter that, “It wouldn’t take much to combat election subversion. Just some directives or minimum standards for ballot tabulation, election result certification, and bipartisan/nonpartisan administration.” Hasen, in his email, proposed various requirements in a similar vein, including “transparency through bipartisan and non-partisan access to observe ballot tabulation processes,” “fair fora for review of ballot disputes” at the state or federal level, “certification of voting machinery” and adherence to “cybersecurity protocols.” And “more ambitiously” he suggested requiring “nonpartisan election administration, either on the federal level or on the congressional level.”
Muller is a political conservative who urged congressional Republicans to certify the 2020 election, finding “no evidence to support those claims’ ‘ of fraud. While not giving a blanket endorsement to the For the People Act (also known as HR1), Muller said the bill does have provisions which can guard against attempts at subversion, namely, “moving toward paper ballots in all jurisdictions, and “incentivizing states to develop risk-limiting auditing procedures.” (As the Brennan Center explains, in a “Risk-Limiting Audit,” “election officials manually recount a sufficient number of paper ballots to ensure with a high level of statistical probability that the electronic tally is accurate.”) Hasen also endorsed HR1’s move to universal paper ballots in a recent New York Times op ed.
So now we have a “what.” The tougher question is “how.”
Senator Joe Manchin has insisted on bipartisanship for any election reform bill on the logic that “partisan voting rights legislation will destroy the already weakening binds of our democracy.” This logic makes a lot of progressive heads explode, but—to borrow the language of the Supreme Court—it is effectively the “controlling opinion.” If we want to reduce the risk of election subversion before the next election, we have to play by Manchin’s rules.
But how can Democrats compromise with Republicans on election reform if Republicans are the ones hell-bent on subverting elections? Not being a Republican, I can’t give a definitive answer. But we should keep our minds open to the possibility that not every Republican is hell-bent on subverting elections. While we know that very few Republicans are eager to openly confront their party’s Trump loyalists, perhaps enough Republicans exist who want to protect their party—and their country—from being overrun by anti-democratic elements. Such sentiment may not describe most House Republicans, a majority of whom rejected Biden’s certification. But where it counts most, the United States Senate, 43 of the 51 Republicans then serving voted to certify every state’s presidential election result.
Still, polarization in Congress is palpable, and bipartisan negotiation on election reform has been minimal. Manchin has insisted on bipartisanship, but hasn’t shown much progress in getting it.
Where might a breakthrough come from? We have an example from recent history. After all, it was only 20 years ago when a disputed election was effectively, and controversially, decided by the Supreme Court, leaving behind a high degree of mistrust with our election processes.
Following Bush v. Gore came presidents Jimmy Carter and Gerald Ford with an old-fashioned, blue ribbon bipartisan commission on election reform, which produced 13 policy recommendations. By 2002, some of those recommendations were turned into legislation, the Help America Vote Act, which was signed into law by President George W. Bush. As a result, a federal Election Assistance Commission was formed, voting machines were upgraded and accessibility requirements spurred expansion of mail and early voting.
Was this the greatest election reform law of all time? No. Did it infuse every American with complete trust in our election system? No. But it did help calm the political waters and stabilize our democracy.
Gerald Ford is no longer with us and, at 96 years of age, Jimmy Carter need not spend any more of his twilight years on another commission. But we have two other former presidents who could ably lead a commission: Barack Obama and George Bush.
They are polar opposites ideologically but disturbed by the insurrection equally. Because Republicans are resistant to federal control of elections, Obama most likely would not be able to get Bush to back everything in HR1 or agree to national mandates remaking every state and local election administrative office in a fully nonpartisan mold. But if there is to be some bipartisan agreement to safeguard our democracy from subversion, and show that our elections can unify us once again, these two are probably our best bet.
