Can We Prevent Election Subversion?
It depends what we mean by "subversion"
A Stop the Steal believer protesting in St. Paul, Minnesota, on November 14, 2020
Amid all the wailing and hair-pulling about the demise of HR1, there’s been a steady counter drum-beat arguing that the bill isn’t actually a great piece of legislation. It’s focused on concerns about vote suppression and campaign finance that have been big themes of Democratic fundraising, but isn’t especially responsive to the most important threats to democracy today.
The most entrenched and persistent threat is the political self-dealing known as gerrymandering, whereby state legislatures draw their own district boundaries to assure their own reelection, and also draw congressional district boundaries to tilt the electoral playing field toward their party. HR1 does have provisions to tackle this problem, but it doesn’t fully grasp the nettle, in large part because of the desire to protect Democratic incumbents.
But the most alarming short-term threat is the possibility of election subversion, that is to say, fear that Republican state legislatures will invalidate a legitimate election result based on spurious claims of fraud. This is purportedly the scenario that the Biden administration is most worried about, because recent laws passed in a number of states have given Republican legislatures more direct involvement in the process of managing elections and certifying their result. Legislatures haven’t gone so far as to give themselves the power to invalidate an election they don’t like, as I modestly proposed they do last November so as to truly lay their cards on the table. But they’ve certainly raised expectations that, if claims of fraud are made, they are the authority who will address them.
Some non-Trump-aligned conservatives have argued that these laws are aimed not at stealing an election but at mollifying the “fraud-pilled” base. This exchange between Ross Douthat and Lawrence Glickman is a good example of this line:
But this is only convincing if you forget the vilification of solidly Republican figures like Georgia Secretary of State Brad Raffensperger for calling the 2020 election clean and fair. Back in 2020, Republican state legislators could play to the crowd and blame others—but now they have the power to intervene to stop “fraud” on their own recognizances, and they claimed that power precisely because they said those in that control position in 2020 failed to do their duty. Even if we assume their prior actions were cowardly rather than nefarious, what does that mean they’ll do next time? Why won’t they succumb to pressure to go a step further and actually intervene? You’d have to have enormous trust in those legislators to be confident the answer is yes. What have they done to earn that trust?
So the question is: what can be done about the possibility of election subversion? Given the obviousness of that question, I found this exchange absolutely gob-smacking:
Well, Bill Scher has now done the work, or at least the first foray thereinto, and it’s something of a nerve-wracking read. The reason is simple. If you assume that a significant percentage, even a majority, of Republican legislators are sincere about wanting to protect democracy, then it isn’t hard to find a set of reforms that would help protect elections from subversion by rogue actors:
Harvard Law professor Nick Stephanopoulos mused on Twitter that, “It wouldn’t take much to combat election subversion. Just some directives or minimum standards for ballot tabulation, election result certification, and bipartisan/nonpartisan administration.” [University of California, Irvine School of Law election law professor Rick] Hasen . . . proposed various requirements in a similar vein, including “transparency through bipartisan and non-partisan access to observe ballot tabulation processes,” “fair fora for review of ballot disputes” at the state or federal level, “certification of voting machinery” and adherence to “cybersecurity protocols.” And “more ambitiously” he suggested requiring “nonpartisan election administration, either on the federal level or on the congressional level.” . . . [University of Iowa election law professor Derek] Muller said the bill [HR1] does have provisions which can guard against attempts at subversion, namely, “moving toward paper ballots in all jurisdictions, and “incentivizing states to develop risk-limiting auditing procedures.” (As the Brennan Center explains, in a “Risk-Limiting Audit,” “election officials manually recount a sufficient number of paper ballots to ensure with a high level of statistical probability that the electronic tally is accurate.”)
But I’m not sure that’s the scenario Democrats are most worried about. These reforms would be good ways of preventing blatant partisan or third-party tampering with the ballot count itself. The kinds of claims that were thrown around in 2020, though, were of a totally different order: claims of phony ballots flown in from China, of millions of non-citizens and deceased citizens voting—and when these claims were rejected by the people in positions of responsibility, that discredited those officials even when they were Republicans. So if there were a “fair forum” for reviewing ballot disputes that rejected claims of fraud, or a “risk-limiting audit” were conducted to prove that an electronic tally was accurate, why wouldn’t those conclusions be cited as evidence that, actually, these officials were in cahoots with Democrats?
The nightmare scenario is precisely that the legislatures would bow to these kinds of claims, say that the election was tainted, and refuse to certify its results. Scher asserts that if a legislature did that, it would face an enormous popular backlash. But if there were a groundswell of popular support for overturning because of a belief in widespread fraud, then the legislature would face a backlash whether they intervened or not. Which way would they jump then? I genuinely don’t know. I do know that they won’t be able to grandstand ineffectually anymore for the base. Once they have the power to intervene, they’ll have to put up or shut up.
Which is why I’m not sure there is a legislative solution to this problem. I think Douthat is right that passing HR1 would not have the effect of lowering the temperature and instilling confidence in the electoral machinery among both Democrats and Republicans that is genuinely needed. But I can’t think what else would instill that confidence. I highly doubt that Scher’s idea of a blue-ribbon Bush-Obama commission would work; in case Scher hasn’t noticed, Bush is persona non grata in MAGA-land. And the constitution really does give the states an enormous amount of latitude over how they run elections, which places genuinely hard limits on what can be done without amending that document, a process which requires a far larger supermajority than invoking cloture.
In the end, democracy doesn’t just require belief in majority rule. It requires acceptance that you and your co-partisans might be in the minority.