“We are already in a constitutional crisis. The destruction of democracy might not come until November 2024, but critical steps in that direction are happening now.”
“The obviously political object is to legitimize the 2020 coup attempt in order to soften the ground for the next one—and there will be a next one.”
The threat is clear. How to act accordingly is not.
Democrats began 2021 promoting a sweeping voting rights and election reform bill, the For the People Act. The bill would vastly expand voter access by mandating no-excuse mail voting and same-day voter registration, as well as end partisan gerrymandering, but would offer little to address election subversion. After joining all Republicans in opposing the For the People Act, Senator Joe Manchin drafted an alternate bill with fellow Senator Amy Klobuchar. The result, the Freedom to Vote Act, scales back some parts of the For the People Act—for example, gone is a requirement for states to automatically send mail ballots to all voters—while adding new provisions addressing election subversion. But like the For the People Act, the Freedom to Vote Act has attracted no Republican support. Progressives who had hoped that continued Republican recalcitrance would compel Manchin to abolish the filibuster are frustrated anew.
Beyond the challenge of overcoming Senate rules is the challenge of writing laws that cannot be overcome. The election law expert Richard Hasen, in a phone interview, warned that “if people are trying to steal an election and they’re not going to respect the rule of law, then law is not going to be constraining.” As any locksmith will tell you, locks are for honest people.
Nevertheless, Hasen is adamant that new legislation is critical, not only because it can help “on the margins,” but also because it would send “a signal to civil society about when rules are being broken.” In other words, if we can’t make our democracy tamper-proof, we can at least make it as hard as possible to pick the locks.
Does the Klobuchar-Manchin Freedom to Vote Act meet that standard?
Hasen, the Chancellor’s Professor of Law and Political Science at the University of California, Irvine, compliments the bill as “better than what we have in the Democratic bills from the past,” such as the For the People Act, “where the only [part] of the bill that addressed subversion was a paper ballot requirement” to help establish electoral legitimacy. The Manchin-Klobuchar legislation goes beyond that with provisions to thwart any illegitimate firing or intimidation of local election officials. Still, Hasen notes that a big and essential proposal remains missing: reform of the Electoral Count Act.
The Electoral Count Act is a 134-year-old law written in the aftermath of the controversial 1876 election. As its name suggests, it details the process of counting the Electoral College vote and handling challenges. The musty text is, in the words of the National Task Force on Election Crises, “ambiguous in key respects” and not “entirely clear about the role of the Vice President in counting electoral votes or how Congress should resolve disputes over competing slates of electoral votes.” The now-infamous “Eastman memo” was used by Trump to persuade Vice President Mike Pence that the Electoral Count Act was unconstitutional and that the long-regarded-as-ceremonial role for the vice president established in the Twelfth Amendment to count electors gave him singular power to decide the presidential election.
No one thinks that come 2025 Vice President Kamala Harris will unconstitutionally twist the Electoral Count Act. But before that point, the presidential tally, in theory, could be manipulated by Trumpist state legislatures. They could illegally ignore their state’s presidential popular vote results and instead send their preferred electors to the Electoral College. And if the Republicans take Congress in 2022, they could ratify such a corrupt count.
A refreshed Electoral Count Act could codify the strictly ceremonial role of the vice president, severely restrict malevolent state legislatures, and tighten the standards for Congress to raise an objection to the Electoral College results. (Hasen outlined his reform proposals in a recent Washington Post opinion piece. Back in January, the National Task Force on Election Crises sketched out similar recommendations.)
The lack of Electoral Count Act reform in the otherwise broad Manchin-Klobuchar Freedom to Vote Act is not necessarily a bad thing. As Hasen wrote in the Post, “considering voting rights issues separately from anti-subversion issues increases the chance for bipartisan compromise on the latter.” Ten Senate Republicans will not swallow a wide-ranging Democratic voting rights bill. Still, a sufficient number of Senate Republicans beyond Trump’s cultish grip might accept an Electoral Count Act upgrade to stabilize democracy.
But the Electoral Count Act only helps with presidential elections. It doesn’t tackle the potential problem of anti-democratic Trumpists at the state and local levels who are out to purge honest election officials and manipulate election results up and down the ballot. Concern over such purges has heightened since Republican state legislators in Georgia passed a law curtailing the power of their secretary of state, who certified Joe Biden as the winner, and giving themselves more power to remove local election officials—power that has been quickly used to launch a review of election officials in heavily Democratic Fulton County, which could lead to removals. Democrats fear that more Republican-controlled state legislatures will soon replicate the Georgia law.
The Manchin-Klobuchar bill does try to address this problem, most pointedly with a provision giving ousted local election officials the power to seek reinstatement in federal court. “I think the provisions are solid, albeit not foolproof,” American Enterprise Institute senior fellow emeritus Norman Ornstein said to me via direct message, “but they go as far as a federal law can, I think, to subdue or undercut the efforts to overturn a legitimate election.”
However, the conservative law professor Derek Muller of the University of Iowa is skeptical that Manchin and Klobuchar’s Freedom to Vote Act would have any impact. “It does almost nothing to address election subversion,” he said via email. “The one provision expressly about election subversion forbids the removal of election local officials except for ‘gross negligence, neglect of duty, or malfeasance in office.’ Well, the somewhat discussed and somewhat controversial review of Fulton County, Georgia, for instance, likely already meets this standard.”
That may surprise you, as it did me. But, in fact, the new Georgia election law doesn’t give Republicans complete freedom to oust election officials without cause. A review must find that “for at least two elections within a two-year period, demonstrated nonfeasance, malfeasance, or gross negligence” (or “at least three violations” of the law or state election board rules in the last two election cycles, without remedial action taken).
Moreover, the new law creates a protracted process before any firing can occur. Stephen Fowler of Georgia Public Broadcasting explained in a July article that first an independent panel appointed by the state election board must conduct a performance review. If that review finds that Fulton County’s five-member election board should be suspended, the state election board would have to conduct its own investigation and then schedule a hearing to decide if the suspension is warranted. If so, the state board would install a temporary replacement of the county election board by an individual superintendent. Thirty to 60 days after such a decision, suspended commissioners could appeal for reinstatement, first to the state board, then to the state judiciary. If that didn’t work, the replacement would remain for nine months, after which the temporary official could be replaced by the Democratic-majority county government, not the Republican-led state government.
For Republicans to control Fulton County elections when the votes are being counted, they would have to time everything with the precision of a bank heist. Such a scheme would be tricky to execute. Fowler concluded, “The state hearing process alone could take up to seven months after an independent investigation is complete, pushing the timeline for a takeover—if it even happens—well into next year. Plus, Fulton would likely file legal challenges to the takeover process at some point, potentially tying things up in the courts even longer.”
The first step of the process, the independent review panel, was taken in August, with a three-person panel appointed, including one Democrat and the Georgia secretary of state’s general counsel—who happened to be one of the people the Trump tried to pressure into finding nonexistent ballots and overturning the the state’s election. Since Trump and his loyalists remain livid at the Georgia secretary of state’s office, they are not all that thrilled about the appointments. The Cobb County GOP posted on Facebook, “The 3 person panel may be stacked in favor of Fulton!”
Nevertheless, even though the process is cumbersome, Republicans in Georgia have a lot of control over it—including majorities of the state election board, the independent review panel, and the state supreme court (which could hear legal challenges at some point). Potentially counteracting that partisan tilt, the Freedom to Vote Act reasonably creates an additional opportunity for federal judges to intervene.
“You can’t stop a state’s pernicious actors from firing honest election officials,” Ornstein said, “but enabling them to sue in federal court for reinstatement is huge.” The Harvard Law School professor Nicholas Stephanopoulos concurred: “The big difference is who decides that there’s been a violation—Georgia Republicans intent on holding on to power or a (hopefully more impartial) federal judge,” he wrote in an email. “The substantive standard in the bills might be similar, but it makes a world of difference whether it’s self-interested politicians (including their agents) or a judge who applies that standard.”
Stephanopoulos had a notable caveat: “hopefully” the federal judges in these cases would be “more impartial.” But the judiciary is a crapshoot. Even though the president is steadily nominating federal judges to rebalance the judiciary, the third branch retains plenty of activist conservative judges who may defer to Georgia Republicans to manipulate the election. Can we bank on any case reaching the U.S. Supreme Court to be decided strictly on the merits? Certainly not.
Additionally, and separate from concerns about judicial bias, if there is some evidence of malfeasance or neglect, however minor, even a disinterested federal judge might be reluctant to wade into this political thicket. Under the standards in both the Georgia law and the proposed federal law, it’s easy enough for a judge to justify steering clear of second-guessing Georgia officials.
This shouldn’t sour you on the Freedom to Vote Act. On the contrary, the overlap of language in the Klobuchar-Manchin proposal and the Georgia law is an opportunity to earn bipartisan support for a bill focused on such anti-subversion measures.
Instead of framing their anti-subversion proposal as a missile targeting the Georgia law, Democrats can sell it to reasonable Republican members of Congress as a complement to the Georgia law or any other similar state law, ensuring that removal of election officials is based on evidence of wrongdoing or incompetence.
Manchin and Klobuchar should argue to their colleagues that federal judicial review can also be used by unfairly ousted Republican election officials. And with so many Trumpists trying to worm their way into the election apparatus, there might well be dismissed Republican election officials who want to seek judicial relief. (Right now, in Mesa County, Colorado, the county clerk and recorder is accused of helping right-wing conspiracy theorists break into the county’s online voting system. The Democratic secretary of state is trying to strip the clerk’s power.)
Manchin is reportedly still reaching out to Republicans to see if a bipartisan voting rights bill is possible. And both Hasen and Ornstein told me they expect an Electoral Count Act reform bill to be introduced. But the window of opportunity for bipartisanship is narrowing as the 2022 midterms get closer.
We need a not-so-arbitrary deadline to force action—such as March 1, when the first primary election of the 2022 congressional elections will be held. And we need Manchin, Klobuchar, and others to prioritize measures to combat subversion over measures that have a far smaller chance of passage in this narrowly divided Congress. Winter, after all, is coming.