We Can’t Let Our Elections Be This Vulnerable AgainRoundup
tags: democracy, Electoral College, 2020 Election, election law
RICHARD L. HASEN is the chancellor’s professor of law and political science at the University of California, Irvine, and the author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.
The 2020 election and its aftermath have laid bare an unhappy truth: Many of the familiar procedures for translating the people’s will into the choice of a president depend on norms of behavior, not laws. Just this past weekend—two months after Election Day—remarkable efforts to mess with election results became apparent, including the revelation of a recording of, on Saturday, President Donald Trump potentially criminally pressuring Georgia Secretary of State Brad Raffensperger to “find” more than 11,000 votes to flip Georgia’s election results from Joe Biden to the president. And well over 100 Republican representatives and about a dozen Republican senators appear poised to object to the counting of Electoral College votes on Wednesday for states that Biden won, despite a complete lack of evidence that the results were marred by fraud or irregularities. These efforts are very serious—and very dangerous.
If not for Biden’s significant margin of victory over Trump and for the courageous, politically risky actions of many Republican and Democratic election administrators and elected officials, this Republican attack on American democracy might well have been successful, securing an illegitimate second term for Trump.
To remove the potential for this sort of gamesmanship in certifying and counting each state’s votes for president, the country needs to adopt a number of measures in the next few years to eliminate the power of individuals to interfere with election results. This can be done without opening up larger constitutional issues, such as whether to keep or do away with the Electoral College. Americans shouldn’t have to know the inner workings of the canvassing board of Wayne County, Michigan—or depend on representatives and senators to accurately count votes as states have reported them to Congress—to figure out who will be president.
The backdrop for these urgent reforms is Trump’s extraordinary effort to delegitimize the election results. Amid the pandemic, the president attacked voting by mail, the safest means of voting to avoid spreading infection. Despite his claims that this shift would open floodgates of fraud, 2020 was a strikingly clean election.
After Biden decisively beat Trump, by a margin of 306 to 232 in the Electoral College and by more than 7 million votes nationwide, the president endorsed wild claims about hacked voting machines in Georgia and put pressure on state officials, legislative leaders, and even local canvassing boards in swing states such as Georgia, Michigan, and Pennsylvania. Trump and his allies filed more than 50 lawsuits, none of which changed results in a single state, and his attacks on the election persisted even after then–Attorney General Bill Barr said that he hadn’t “seen fraud on a scale that could have effected a different outcome,” and Senate Majority Leader Mitch McConnell and other Republican leaders congratulated the new president-elect.
Trump nonetheless continued to pressure Republican state legislators to meet and declare a new slate of electors in his favor. When the legislatures refused, Trump’s team organized rogue Electoral College meetings in disputed states to “vote” for Trump. Those fake Electoral College votes may have been sent into Congress for opening by Vice President Mike Pence in his role presiding over the counting of the votes on Wednesday.
There are not enough rogue Republican members of the House and Senate who can derail a vote count for Biden on Wednesday, but they will make a lot of noise objecting, and they could drag out the final vote count for hours. It will be messy and ugly, especially with Trump repeatedly calling for “wild” protests in the capital on Wednesday, but in the end it won’t derail the outcome.
Unfortunately, the country might not have enough principled people to stand up for the rule of law and the accurate counting of votes next time. So it must get rid of extra discretion wherever it exists in determining election results.