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A Thousand Cuts: Democracy Under Attack

Why U.S. Elections Are Vulnerable and What to Do About It

Elections expert Richard Hasen says there’s ‘no magic bullet that would make this go away’ — but there are still ways to protect American democracy.




Photo: Grace Cary.

The potential for rogue officials to throw the presidency to the loser of a fair election has always been built into the Constitution and U.S. law.

But most people had no reason to pay attention to the election system’s weak points until it became clear that the Jan. 6 insurrection was part of a larger plan to subvert the presidential election

Richard Hasen, a professor at the UCLA School of Law, recently launched the Safeguarding Democracy Project. Hasen is a leading expert on election law who has written about all sorts of shortcomings of and attacks on American electoral democracy — gerrymandering, restrictive voting laws, a campaign finance system that favors plutocratic power and the dangers of political disinformation.

In articles in the New York Times, the Washington Post and Slate, he has been raising the alarm about the vulnerability of our elections to subversion. 

As Hasen explains, the threat of election subversion in the U.S. is due largely to the fact that the system gives a vast array of officials at the local, state and federal level power over elections — and all of them must do their jobs honestly for it all to work.

While some democracy activists and strategists are focused on electing impartial officials to these key elected positions around the country, Hasen in this discussion emphasizes legal reforms that could help stave off election meddling.

This interview has been edited for length and clarity.

Capital & Main: The hearings of the House Jan. 6 committee have focused people’s attention on a violent attack that could have prevented the winner of a free and fair election from taking office. Besides that kind of violence and intimidation, what are the other main threats to democratic elections — and which concerns you the most?

Richard Hasen. Photo by Alan Weissman.

Richard Hasen: Even a few years ago, discussing this would have been ludicrous. You know, if you would have said, “George W. Bush is not going to give up power to Barack Obama,” people would laugh at you. But until the moment that Trump actually left office, people were wondering what he was going to do. And unfortunately, we now have a situation where not only do many Republicans believe the false claim that the 2020 election was stolen, that’s kind of an important part of their identity. It has created dangerous conditions on the ground.

We’re already seeing the fruits of this now, with certain county boards refusing to certify the results of elections, candidates running for state office — for secretary of state or governor — on a platform that the 2020 election was stolen.

And because we have a very decentralized election system, there are many pressure points where we rely on people to act in good faith. And if they don’t, we don’t always have a good way of dealing with that. Unfortunately, there’s no single path to overturning a future election and no single magic bullet that we could adopt that would make this go away.

Activists and scholars like you really took notice recently when the Supreme Court agreed to hear a case turning on the “independent state legislature theory” (ISLT). What is the theory and how does it relate to threats to democracy?

There are two parts of the Constitution that give state legislatures certain power over the rules for conducting federal elections.

The ISLT claims that these provisions mean that the state legislature has this kind of supreme power — not limited by what the governor wants, not limited by what the state constitution says, not limited by how the election administrators interpret the rules. It’s kind of a plenary power for the legislature to do what it wants. 

This is why it’s the so-called independent state legislature theory.

“The independent state legislature doctrine question is asking, ‘How far can the state’s legislature go in imposing rules for federal elections — even if those rules might violate the state constitution?’”

What’s the problem with saying state legislatures have that absolute power? Could you give an example?

So, suppose that a state legislature says, “If you’re voting for president, you’ve got to get your absentee ballot in by midnight on Election Day.” That is a state legislature setting the rules. We had a case in the 2020 election where that was what the statute in Pennsylvania basically said.

Now, we voted in 2020 in the middle of the COVID pandemic. And some voting rights groups went to the Pennsylvania Supreme Court and they said, “Look, the Pennsylvania Legislature says the ballots have to be in by midnight on Election Day, but under these difficult pandemic conditions where mail is arriving late, and there’s all kinds of problems, we think that would violate the state constitution, which protects the right to fair elections.”

And the Pennsylvania Supreme Court agreed and said, we believe that requiring the ballots to arrive by Election Day would violate the state constitution. We’re giving three extra days. Kind of a fairly typical thing that a court could do applying a state constitution to an election rule, under emergency conditions.

Well, the Republican Party of Pennsylvania went to the United States Supreme Court and said, “The state supreme court has no power to apply the state constitution when the state legislature passes a rule about congressional elections.”

The Pennsylvania Republicans did not get their way in 2020, and in the end the decision making it possible for more voters to have their ballots counted remained in force. How does the ISLT figure in the new case the court has agreed to hear?

Moore v. Harper is a case out of North Carolina. The North Carolina Legislature, which is dominated by Republicans, drew a partisan gerrymandering of congressional districts that helps Republicans. The state Supreme Court decided that this map violated the state constitution’s power to protect fair elections and said, “This partisan gerrymandering is unconstitutional,” and threw out the maps. And the state Legislature is arguing, “You don’t have the power to do that, we can do whatever we want.”

So, the independent state legislature doctrine question is asking, “How far can the state’s legislature go in imposing rules for federal elections — even if those rules might violate the state constitution?”

If the Supreme Court adopts the independent state legislature theory, would that make election subversion easier?

Some people have made the wrong claim: that courts would use this theory explicitly to announce that a state legislature could second guess the results of a future presidential election and appoint their own electors. I don’t think courts would announce that. 

But I do think that, depending on how the Supreme Court decides the Moore case, state legislatures might purport to rely upon this theory and say, “We’ve got the power to appoint our own electors even after voters have already voted in a presidential election.” And when Congress meets to count electoral votes, Kevin McCarthy, if he’s the speaker of the House, might say, “Yeah, we agree.” And at that point, the courts would not intervene. And so, state legislatures claiming this power could be a pathway to try to subvert an election result — even if courts wouldn’t explicitly give their advance blessing.

“Electoral Count Act reform would clarify what we already know, which is that the vice president is essentially the master of ceremonies. He or she doesn’t have any independent power to decide who’s going to be president.”

A bipartisan group of senators led by Susan Collins (R-Maine) and Joe Manchin (D-W.Va.) recently reached a deal to reform the Electoral Count Act (ECA). What is the ECA, and what would the proposed legislation do? Do you think the reform would help protect presidential elections in the future?

In 1887, Congress passed a set of rules governing how Congress is supposed to count the Electoral College votes. And these rules are really unclear and convoluted — and in times like this, quite dangerous.

For example, one of the provisions of the Electoral Count Act says that in the case of a “failed election,” a state legislature can step in and choose a slate of electors. This was part of the Trump gambit — to claim there was so much fraud or irregularity in how the election was conducted that it counts as a kind of “failed election,” and legislatures can step in and appoint a slate of Trump electors. I think that’s a very poor interpretation of what this act is about. I think “failed election” is about something like a hurricane or an earthquake that prevents people from being able to vote. One of the things that the proposed Collins-Manchin reform act would do is get rid of that “failed election” language. 

But it would do other things, too. It provides a way, if a governor, for example, wouldn’t certify someone who is the winner of an election, to actually require that certification be the one accepted by a federal court.

Another thing it does is this: You may remember that Donald Trump was trying to pressure Mike Pence to throw out Electoral College votes or delay the proceedings. The ECA reform would clarify what we already know, which is that the vice president is essentially the master of ceremonies. He or she doesn’t have any independent power to decide who’s going to be president.

Beyond Electoral Count Act reform, what should be the key planks for protecting democracy in the U.S.?

There are a couple of things I think are urgent. Some of them are in a companion bill that was proposed along with the Collins-Manchin electoral bill. The Electoral Count Reform Act has, I think, eight or nine Republican co-sponsors. Ten is the magic number to get over a filibuster, and there’s good reason to believe that at least McConnell would go along and then he’d get some more. But unfortunately only five Republican co-sponsors signed on to this companion bill, which would do things like protecting election officials and election workers from threats of harassment and intimidation. I think that’s crucial. Part of what we’ve seen in this country has been an attack on those election officials who are just trying to do their job.

The other thing I think is a must is a requirement of the use of paper ballots. In 2020, when Trump was claiming that the Georgia election was stolen — without any reliable evidence — it was the secretary of state that was able to conduct a full hand recount of every ballot in the state.

I also think we need to have greater and more clarified penalties for election subversion. We’ve been reading a lot in the news about whether Donald Trump and others might be liable for obstructing an official proceeding by trying to mess with the Electoral College counts. I think that the laws could be strengthened to have greater penalties for sending in a fake elector slate, clarifying what the law is.

But I think ultimately, on top of all these legal changes, we need to create a coalition across liberal, centrist and conservative people committed to the rule of law to make sure that we have a commitment to free and fair elections, regardless of who wins the election. We need a movement within civil society bringing together labor unions, corporations and religious organizations who may differ on issues from abortion to taxes to everything else but who agree that we should have free and fair elections.

Copyright 2022 Capital & Main

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