Saving American democracy

At the beginning of this year, previewing the two runoff elections in Georgia that decided control of the United States Senate, I referred to the argument that it was dangerous to have both houses of Congress plus the presidency all in the hands of the same party. I said it was an argument I would normally take seriously, but that “The Republican Party has become so much of an anti-democratic cult that giving it any share of power is a hard thing to justify.”

Sad to say, that remains as true now as it was then. But there was another reason why unified control – which the Democrats achieved by winning both runoffs – was not so much of a concern. A bare majority in the Senate (50-50, plus the casting vote of the vice-president) doesn’t actually get you much. Senate rules require sixty votes to force a vote on most legislation, and any move to circumvent that rule is hostage to the views of the least committed of your fifty senators.

Hence the failure of the administration’s first move for electoral reform, an omnibus bill known as HR1 (also called the For the People Act). West Virginia senator Joe Manchin, a Democrat who manages to hold what would otherwise by a safe Republican seat (his state voted for Donald Trump by more than two to one), has made it clear that he will not support any attempt to get it through the Senate in its current form, saying that reform needs to be more bipartisan.

HR1 contains some useful features, but bipartisan it is not. It’s a grab-bag of measures that the Democrats have been trying to get through for years: some of them vital to democracy (abolition of gerrymandering, requiring paper ballots, restoring voting rights to prisoners after their release), but others much less obviously so, and some not related to elections at all (such as requiring a code of ethics for federal judges).

Most of the work of running federal elections in America has traditionally been left to the states: while Congress has the constitutional power to intervene, it has rarely done so, leaving a patchwork of state and local jurisdictions with widely differing rules and procedures. A degree of standardisation is clearly desirable, but pushing too hard too quickly is a recipe for backlash. The obviously partisan nature of most of the agenda makes that more certain.

Consider, for example, a measure like section 1031, which requires states to allow same-day enrolment for federal elections. Same-day enrolment is a good thing, and in a country where the detail of procedures like that is routinely decided at federal level (such as Australia), I would strongly support it. But it’s not a sine qua non of democracy, and it’s hard to argue, except in explicitly partisan terms, that it’s sufficiently important to require federal intervention in what is usually an area of state responsibility.

And the more things like this are included – and there are a lot of them in HR1 – the more they obscure and undermine support for the measures that are really necessary to safeguard democracy.

I don’t suggest that there’s a moral equivalence between trying to secure partisan advantage by expanding voting opportunities, and trying to do so by contracting them – the latter being what Republicans in many states have been up to. But the Trumpist threat to American democracy is sufficiently serious that it requires the construction of the broadest possible coalition to meet it.

And that’s the other problem with HR1: it’s designed to fight the battle as it appeared two or three years ago rather than today. Its main targets are therefore voter suppression and gerrymandering, not the more explicit efforts to steal elections that Trump and his supporters have committed themselves to. Nothing in it would do much to counter the recent efforts to give Republican state officials power to override local election authorities; indeed, by engaging in so much procedural centralisation it could even be seen to create a sort of precedent for them.

So what to do instead? Two suggestions that were made last week seem to me to have a lot of merit. One comes from Bill Scher at the Washington Monthly, who argues that protecting fair electoral administration is the most critical task. While the hard-core Trumpists will never support it, he points out that a significant number of Republicans did resist Trump’s machinations: “While we know that very few Republicans are eager to openly confront their party’s Trump loyalists, perhaps enough Republicans exist who want to protect their party—and their country—from being overrun by anti-democratic elements.”

He proposes that Manchin’s preference for negotiation should be taken seriously, with the appointment of a bipartisan commission (he suggests Barack Obama and George Bush Jr could head it) to make recommendations that would safeguard the basics of electoral administration. It would not swallow everything in HR1, but it might produce a package that could attract enough Republican support to overcome a filibuster.

The other suggestion is more controversial. Bruce Ledewitz, writing in the Pennsylvania Capital-Star, argues that instead of a commission to investigate the Trumpist insurrection of 6 January (another initiative that has failed to get the requisite support in the Senate), what’s really needed is a full public investigation of the Trumpist claims of election fraud that provoked it.

Supporters of democracy will naturally recoil at the idea of taking evidence-free claims so seriously. But Ledewitz makes a good case:

[T]he reason American democracy is slipping away is not the insurrection Jan. 6. It is the backdrop and instigation of that attack. Millions of Americans, perhaps a quarter of all voters, believe the 2020 presidential election was stolen.

And they believe this because Trump and other Republican leaders have relentlessly claimed that in 2020 there was fraud and election rigging.

We need an independent commission to confront that lie, to investigate fairly and transparently every claim of fraud, every assertion of illegality, no matter how outlandish or unlikely.

Simply repeating the truth isn’t working. The Trumpists claim that they want an investigation, so why not give it to them: a high-powered commission with world experts who would examine the evidence and present it in full. It wouldn’t convince everyone, but it might detach a critical mass of supporters from the Trumpist bandwagon. It could also be a powerful educational tool about how elections actually work and how they can be improved.

For more on the struggle for democracy in America, one of the best resources is Rick Hasen’s Election Law Blog, which I’ve now added to the blogroll in the right sidebar.