Congress is powerless to fully stop state-level threats to democracy – Business Insider
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American democracy is facing a crucial stress test when primaries for the 2022 midterms start in just a few months, but Congress is severely limited in the kind of legislation it can pass to sufficiently shore up election laws against critical new threats ahead of time.
Senate Democrats will this fall take up the Freedom To Vote Act, a wide-ranging voting rights and election reform package. Despite efforts to get Republicans on board, the sweeping legislation will likely be filibustered by Senate Republicans, who have denounced the measure as a federal election takeover.
The legislation is being billed as a voting rights measure with massive expansions of voter registration and voting options, and its near-certain defeat will be framed as a blow to voting rights. Progressives have cast the Freedom To Vote Act and its predecessor, the even larger-in-scope For the People Act, as essential to saving American democracy from voter suppression and anti-democratic threats.
But even if they somehow survived the filibuster, neither piece of legislation would steer American democracy away from a crash course with what scholars have deemed election subversion, which includes the normalization of attacks on officials and blatant attempts by Republicans to discredit results.
“What we call election subversion has received the least amount of attention, but is actually more the most fundamental aspect that we should be focusing on protecting,” Sarah Walker, executive director of election policy nonprofit organization Secure Democracy, told Insider.
In the lead-up to the 2020 election and in its aftermath, election officials around the country experienced a dramatic rise in harassment, violent threats, and attacks on the integrity of the elections they run from conservative politicians and media figures with powerful megaphones.
A recent analysis from the Voting Rights Lab has identified over well over 100 proposals introduced in GOP state legislatures in 2021, 36 of which have been enacted, that change not just how people vote but affect who conducts their elections and counts their votes.
They include 17 states where partisan legislators have introduced bills giving them more control of election administration and certification, seven where lawmakers have pushed for post-election ballot reviews, and 16 where lawmakers have introduced bills that subject election officials to new criminal and civil penalties.
Such bills have already been signed into law in key battlegrounds like Iowa, Georgia, Florida, and Texas.
Unlike the For the People Act, drafted before the 2020 election, the Freedom to Vote Act includes provisions seeking to beat back some of those new trends at the state level.
The newly-added provisions would prohibit local election officials from being fired or removed without cause, make harassing and threatening election workers a federal crime, and add new penalties for intimidating or deceiving voters.
The bill also includes some modest provisions taking aim at post-election examinations like the the Trump-endorsed one Republican lawmakers conducted in Maricopa County, Arizona, which has spurred GOP leaders in states like Pennsylvania, Wisconsin, and Texas to relitigate the 2020 election 11 months later.
But Walker told Insider the reforms in the bill wouldn’t stop much of the state-level election subversion and likely wouldn’t go into effect in time to affect the midterms.
“While the federal legislation is extremely important, there’s two things we know. Number one, in the event the Freedom to Vote Act passes, the chances that it will be implemented in time for the primary elections or the 2020s could be very limited,” Walker said.
“The other thing I think we’re seeing is that there are a lot of creative ways of subversion that are not able to be addressed in this federal bill, and still need state-level consideration,” Walker said.
She noted that the bill can’t block all the various forms of “sham audits,” like the one in Arizona, or the underlying impulse to sow doubt in the integrity of election outcomes.
The patchwork-like nature of elections in the US, which are mainly administered and certified by officials at the local level, makes combatting subversion difficult, Walker said.
“The county whack-a-mole is a real reality, but it’s also why states need to adopt their own policies and practices that do things like protect election administrators and put guardrails on unending audits,” she said.
The Voting Rights Lab report also warned that “many of the state laws passed this session would not be addressed by the Freedom to Vote Act…or any federal legislation to come — making continued vigilance and activism on the state level all the more important.”
There are multiple ways that attempts to undermine democratic election results have metastasized outside of Congress’ control.
There has been a broad shift in the US political culture over the past decade, one which firmly took root in 2020 and was recently on display in the California gubernatorial recall, that has led to conservative political candidates pushing baseless claims of voter fraud and pre-ordaining their election losses as illegitimate.
Congress does not have the power to stop the growing number of Trump-endorsed Republican candidates who have pushed 2020 election lies from running for important statewide offices responsible for overseeing elections and certifying election results.
It can’t also stop 2020 election deniers from shaping local politics and local election administration by occupying little-noticed but influential precinct officer positions, a trend ProPublica has recently documented.
The next round of elections could also reveal a dramatic shift in the role of the courts.
Rick Hasen, a leading election law scholar at the University of California Irvine, warned in a recent essay of the risk of a “bloodless coup dependent upon technical legal arguments overcoming valid election results” in 2024.
Hasen noted that at least four justices on the Supreme Court have warmed to the legal philosophy, known as the independent state legislature doctrine, underpinning the Trump campaign’s and its allies’ unsuccessful attempts to block certification of and reverse election results in several swing states.
“Lawyers in fine suits making legalistic arguments are much more appealing than desperate lawyers making unsubstantiated claims of ballot box stuffing and other chicanery,” Hasen wrote.
In a January 3 memo written for Trump’s legal team, conservative lawyer John Eastman conjured a scenario where seven states that voted for Biden sent “alternate” slates of electors for Trump based on non-existent widespread fraud.
Then, according to Eastman’s theory, Pence would simply discard the Electoral Count Act of 1887 as unconstitutional and appoint himself the ultimate arbiter of which electoral votes to count to overturn Biden’s 306-232 Electoral College victory.
While Eastman’s effort may seem outlandish, it likely won’t be the last of its kind. Hasen argued in his essay that the undermining of democracy doesn’t just come from legislatures failing to impose safeguards to the electoral process, but from political actors disregarding them for their own ends.
Eastman did just that at the end of his memo, writing, “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage.”
If 2020 was a “dress rehearsal” for 2024, as Hasen has put it, the 2022 midterms will offer a preview of the future of election integrity in America.
“2022 is going to be a test of our democracy,” Walker told Insider. “And I think that whether or not more proactive policies that protect our democratic infrastructure happen at the federal or state level, the reality is as many of them won’t be implemented in time.”