The Only Way to Save American Democracy NowRoundup
tags: democracy, voting rights, 2020 Election
Richard L. Hasen is a professor of law and political science at the University of California–Irvine School of Law and is the author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy
What’s next to save American democracy?
The events of the past week have left many in this country reeling and worried seriously for the fate of democratic governance in the United States. In one of the most destructive acts in American political history, President Donald J. Trump on Wednesday exhorted his supporters, some armed, to march to the Capitol as Congress began the formal task of counting Electoral College votes to confirm the election of his opponent, Joe Biden. Trump supporters stormed the Capitol building, leading to a bloody rampage and the death of a Capitol Hill police officer and four others. Members of Congress, staff, and journalists rightly feared for their lives from this domestic terrorism, as gangs of masked Trump supporters swarmed the House and Senate chambers carrying zip-tie handcuffs intended for our nation’s leadership. The Senate chamber was desecrated, as was the office of the speaker of the House. Trump supporters smeared feces in the halls of Congress. National Guard troops were delayed as reinforcements, reportedly because the president refused to authorize them, increasing the terror and damage. And after order was restored following this unprecedented assault on the seat of American governance, eight Republican senators and 139 Republican members of Congress still voted to sustain bogus objections to the Electoral College votes from Pennsylvania and Arizona. The Trump-based objections were based upon false claims of voter fraud and election irregularities.
All of this occurred in the aftermath of the Georgia Senate elections, in which voters elected a Black preacher and a Jewish son of immigrants in runoff elections on Tuesday, flipping control of the Senate to Democrats—and after which Georgia Republicans plotted ways to make voting more difficult in future elections.
It goes without saying that Trump needs to be removed from office immediately for plotting insurrection and for acting at every turn to thwart the will of the voters, including through a likely criminal attempt to get Georgia’s secretary of state to commit voter fraud to flip the Georgia presidential election from Biden to Trump. But removing Trump is far from enough to excise the cancer on our body politic. Instead, we need bold changes to deal with the threat to democracy from an authoritarian wing of the Republican Party that appeared ready to abet Trump’s stealing of the election, as well as the separate problem that the Republican Party can continue to consistently win elections with minority support thanks to backward American election rules we have in place.
With Biden assuming office on Jan. 20 and with Democrats narrowly controlling the House and the Senate once the Georgia runoff results are official, there will be a small window in which to get things done. Democrats will need to play what professor David Pozen has called “constitutional anti-hardball,” using all the tools available in the Constitution to reverse unfair Republican political advantage and deter the party’s potential turn toward authoritarianism. Democrats will have to act fast, maybe within the first sixth months of the Biden administration, because we do not know how long Democrats will maintain majorities in these chambers.
To begin with, Democrats should do what I argued for in Slate in 2018: get rid of the filibuster for considering voting reform legislation. Right now, it takes 60 votes to get most things done in the Senate, a structure that helps perpetuate minority rule. In the Senate, small Republican states like Wyoming, with fewer than 600,000 people, can join together to thwart the voting rights of states like California, with nearly 40 million people. (In the last Congress, for instance, senators representing 13 million fewer voters commanded a 53–47 Republican Senate majority.) A filibuster exception for voting rights legislation helps to negate that anti-majoritarian advantage in the Senate.
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