Can Congress Insure Fair Elections?
At a bleak moment for voting rights in the U.S.Republican-controlled state governments across the country, spurred in part by former President Trumps false claims of a rigged election, are imposing new restrictions on voters and election workersthe possibility of reform rests largely with Senator Joe Manchin. Two weeks ago, Manchin, a conservative Democrat from West Virginia, made clear that he did not support H.R. 1, also known as the For the People Act, an expansive voting-rights and campaign-finance bill introduced by the Democrats. Last week, Manchin released his own compromise bill, which includes Republican priorities, such as mandatory voter identification. Manchins bill quickly garnered support from some Democrats, including Stacey Abrams, who view it as the Partys only chance to fix the voting system, but Senate Republicans still intend to block it. And Manchin has repeatedly said that he will not vote to end the legislative filibuster, meaning that neither his bill nor a narrower proposalsuch as the John Lewis Voting Rights Advancement Act, which focusses on restoring parts of the Voting Rights Act of 1965is likely to become law. I recently discussed the future of voting reform with Richard L. Hasen, a professor at the University of California, Irvine, School of Law and an expert in elections law. During our conversation, which has been edited for length and clarity, we talked about whether Democrats erred in putting forth a broad bill, whether the threat to free elections comes from Congress or the states, and the biggest obstacles to a free election in 2024. I think the best place to start is to differentiate between election subversion and voter suppression. Weve been hearing for many years about voter suppression: things that make it harder for people to register and to vote, like the provision of the Georgia law that says you cant give water to people waiting on line to vote. Thats a different concern than this idea of election subversion, which is trying to manipulate the rules for who counts the votes in a way that could allow for a partisan official to declare the loser as the winner. This was, for example, a concern when President Trump called the secretary of state of Georgia, Brad Raffensperger, in the period after the election, to try to get him to find the 11,780 votes. Much of what proposed federal legislation would do in both H.R. 1 and the John Lewis Voting Rights Advancement Act is aimed at stopping voter suppression. Stopping election subversion requires a different set of tools, and, ideally, you might want to have federal legislation that attacks both. But, if youre focussing solely on election subversion, then I think there are a few important things to do. No. 1, require every state to hold elections using some form of a paper ballot. That provision is actually in H.R. 1its a small part of a very large bill. But that standing alone is not only something that could get bipartisan supportits absolutely essential. Just imagine if in Georgia, in the period after the election, when Secretary of State Raffensperger ordered a hand recount of all the ballots, with the ability for the public to observeif Georgia was using voting machines that didnt use a piece of paper, then the conspiracy theories of the flipped votes would have had much more resonance. No. 2, fixing the 1887 Electoral Count Act. Thats this arcane federal law that explains how Congress is supposed to count the Electoral College votes from each state. One of the provisions in there says you only need an objection from one senator and one representative in order to go into separate trial sessions to negotiate over whether or not Electoral College votes should be accepted or rejected. There should be a much higher threshold, and there should be a substantive standard for rejecting those votes, so we would not see something like a hundred and forty-seven members of Congress that voted to object to state Electoral College votes on January 6th. There are other things that could be done as well, such as requiring that there be some kind of court review or independent review of the standards that are used for declaring winners in elections, as well as various transparency requirements in dealing with election administration, so that people can go to court if there is a problem with the fairness of how the election is conducted. I think there are some fixes that would make election subversion much more difficult, but, to truly deal with the problem, it requires not just strengthening law but strengthening norms. When you are talking about paper ballots or making it easier to object in Congress, you have to wonder whether it will matter to a political party in the grips of Donald Trump. Yeah, that would be the concern. I think fortunately that although some of the Republican Party is in the grips of Trump, the entire Party is not. If you look back at the post-November, 2020, history of Donald Trumps attempts to subvert the outcome of the election, there were a number of principled Republicans who stood in the way, from the Republican member of the Michigan canvassing board who refused to object to the Michigan votes for Biden, to Georgias secretary of state, Brad Raffensperger, and governor, Brian Kemp, whos been no friend to voting rights but stood up for the rule of law, to a number of conservative federal judges who rejected those kinds of claims out of hand. When it mattered, the Republicans who were in charge or who had a formal role did the right thing. The problem is that many of them are being censured or excluded from the Party, and so we cant count on that happening next time. We really have to strengthen whatever other tools we have, both as a matter of law and a matter of norms, to prevent rogue Trumpist election officials and elected officials from trying to subvert fair election outcomes. Sure. Then, of course, thats the end of the American democratic experiment, and were in deep trouble. There was, first of all, an expected tightening of the rules that allow people to easily cast a ballot, especially by mail. Requiring that Georgia voters provide certain identification information when they vote by mail is new. There was a report in the Atlanta Journal-Constitution that said over two hundred and seventy thousand voters would not be able to vote by mail with that requirement. In some instances, such as in Iowa, theres been a criminalization of attempts by local election administrators to try to allow for the expansion of voting opportunities, such as in sending absentee-ballot applications to voters. Thats not something that should be criminalized. Were seeing, in a number of bills, attempts to make the job of local election administrators even harder and dissuade people even more from becoming election administrators. In terms of election subversion, the biggest concern I have right now is what happened in Georgia, where as punishment for Raffensperger standing up to Trump, the secretary of state has been taken out of any authority as to how the state election board does its job, to be replaced by someone handpicked by the Republican legislature. This board now has the power to do temporary takeovers of up to four counties. You could easily imagine the state boards taking over how the election is run in heavily Democratic Fulton County, and then imposing rules or messing with election counts in ways that could affect the outcome in the now very purple state of Georgia. I have seen the argument made, most recently by Ross Douthat in the New York Times, that some of these bills limiting voting access will make it easier for Republican officials to essentially do the right thing if the moment comes in 2024, because they can say, Aha, fraud didnt occur. Thats why Im voting to certify the election. Well, I think that that New York Times column is totally off base because there is no logical connection between the amount of fraud that exists in the election system and Trumpist Republicans belief that there is fraud in that election system. It doesnt seem to me that passing these purported anti-fraud laws would make a difference, not to mention the fact that most of these laws dont prevent any appreciable amount of fraud. They just are intended to suppress the vote, whether or not they actually have that effect. I dont think much of that argument at all.