Jurisprudence

The Only Way to Save American Democracy Now

A noose is seen on makeshift gallows as supporters of US President Donald Trump gather on the West side of the US Capitol in Washington DC on January 6, 2021.
The ongoing threat. Andrew Caballero-Reynolds/Getty Images

What’s next to save American democracy?

The events of the past week have left many in this country reeling and worried seriously for the fate of democratic governance in the United States. In one of the most destructive acts in American political history, President Donald J. Trump on Wednesday exhorted his supporters, some armed, to march to the Capitol as Congress began the formal task of counting Electoral College votes to confirm the election of his opponent, Joe Biden. Trump supporters stormed the Capitol building, leading to a bloody rampage and the death of a Capitol Hill police officer and four others. Members of Congress, staff, and journalists rightly feared for their lives from this domestic terrorism, as gangs of masked Trump supporters swarmed the House and Senate chambers carrying zip-tie handcuffs intended for our nation’s leadership. The Senate chamber was desecrated, as was the office of the speaker of the House. Trump supporters smeared feces in the halls of Congress. National Guard troops were delayed as reinforcements, reportedly because the president refused to authorize them, increasing the terror and damage. And after order was restored following this unprecedented assault on the seat of American governance, eight Republican senators and 139 Republican members of Congress still voted to sustain bogus objections to the Electoral College votes from Pennsylvania and Arizona. The Trump-based objections were based upon false claims of voter fraud and election irregularities.

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All of this occurred in the aftermath of the Georgia Senate elections, in which voters elected a Black preacher and a Jewish son of immigrants in runoff elections on Tuesday, flipping control of the Senate to Democrats—and after which Georgia Republicans plotted ways to make voting more difficult in future elections.

It goes without saying that Trump needs to be removed from office immediately for plotting insurrection and for acting at every turn to thwart the will of the voters, including through a likely criminal attempt to get Georgia’s secretary of state to commit voter fraud to flip the Georgia presidential election from Biden to Trump. But removing Trump is far from enough to excise the cancer on our body politic. Instead, we need bold changes to deal with the threat to democracy from an authoritarian wing of the Republican Party that appeared ready to abet Trump’s stealing of the election, as well as the separate problem that the Republican Party can continue to consistently win elections with minority support thanks to backward American election rules we have in place.

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With Biden assuming office on Jan. 20 and with Democrats narrowly controlling the House and the Senate once the Georgia runoff results are official, there will be a small window in which to get things done. Democrats will need to play what professor David Pozen has called “constitutional anti-hardball,” using all the tools available in the Constitution to reverse unfair Republican political advantage and deter the party’s potential turn toward authoritarianism. Democrats will have to act fast, maybe within the first sixth months of the Biden administration, because we do not know how long Democrats will maintain majorities in these chambers.

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To begin with, Democrats should do what I argued for in Slate in 2018: get rid of the filibuster for considering voting reform legislation. Right now, it takes 60 votes to get most things done in the Senate, a structure that helps perpetuate minority rule. In the Senate, small Republican states like Wyoming, with fewer than 600,000 people, can join together to thwart the voting rights of states like California, with nearly 40 million people. (In the last Congress, for instance, senators representing 13 million fewer voters commanded a 53–47 Republican Senate majority.) A filibuster exception for voting rights legislation helps to negate that anti-majoritarian advantage in the Senate.

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It’s not clear whether conservatives like Sen. Joe Manchin will go along with nuking the filibuster for voting rights legislation, but perhaps Democrats could reach out to Republican moderates like Sens. Susan Collins and Lisa Murkowski to make a limited deal to do so in order to protect American democracy. At the very least, they have to try.

If Democrats can partially kill the filibuster, here’s what should be on the agenda in terms of voting reform: First, Congress should vote to make the District of Columbia and Puerto Rico (assuming its residents approve) into U.S. states. Had D.C. been a state, it would have almost certainly been easier for the District’s leaders to call up the National Guard to help put down the insurrection. More fundamentally, there is no reason that residents in these two U.S. areas should be denied full representation in the Senate. Adding additional states would help tilt the balance in the Senate, giving a better chance for the body not to reflect minoritarian Republican preferences.

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Next, Congress needs to provide greater protection for voting rights. Although there will be great pressure to do so, Congress should not first try to pass H.R. 1, the massive voting reform bill containing some proposals that are very controversial and could well split the narrow coalition it would take to get things through the current Congress. Instead, focus should be pinpointed more directly on protecting the right to vote in the states. A version of the John Lewis Voting Rights Act as I envision it would restore federal preclearance of voting changes made in states with a history of racial discrimination in voting, requiring states to show that the changes would not make minority voters worse off.* It would also require states to provide easy access to online voter registration for federal elections, block the kinds of voter purges that could disenfranchise legitimate voters, and assure that all voters in federal elections have easy access to early voting, both in person and by mail.

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Making these kinds of changes will help assure that elections are fairer and that results will more likely reflect the will of the people. But they won’t do enough to deal with the Trumpian wing of the Republican Party, which needs to be weakened to re-create a system in which both political parties are led by responsible actors, and where leaders cannot be held hostage to a radical minority within the Republican party.

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To that end, we need structural change to help Republican moderates fend off primary challenges from Trumpians in the House and Senate. There are a number of forms such changes can take. As the Supreme Court recognized in Rucho v. Common Cause, Congress has broad power to set the rules for congressional redistricting even if states object. Congress can require districts to be drawn with bipartisan or nonpartisan commissions, which can help eliminate some of the more extreme forms of gerrymandering that lead to the election of more extreme Republican candidates. In light of the fact that moderate Republicans fear getting primaried by more extreme insurgents within the party, Congress can require the use of ranked choice voting, or other methods of voting that require winners to represent true electoral majorities.

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Finally, as I argued recently in the Atlantic, we need to restructure the rules we use for translating votes for president into the final counting of Electoral College votes by Congress. We should not allow state legislatures or canvassing boards to easily overturn election results, and the threshold for debating objections to Electoral College votes in Congress needs to be raised substantially.

Solving the problem of the Republican Party’s authoritarian wing is going to require much more than redistricting and primary reform, two necessary steps, and it will require more than just congressional action. My current book project is focusing on the asymmetric spread of electoral disinformation on cable television and in social media, and how the solutions will require both new laws and private actions to rebuild and bolster social institutions. But electoral reform is an urgent and imperative part of the solution and it is one that the Democratic majority has the power to enact on its own if the political will exists.

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The Biden administration has some tough choices ahead. It is going to be coming into office in the midst of a pandemic that has become both a health crisis and an economic crisis. Climate change work is urgent. There are many other pent-up priorities that the Democratic coalition will want to tackle in that narrow window. Some will want to go broader on election reform, risking splitting a very narrow coalition, or to prioritize other emergencies. But the problems of American democracy cannot be ignored during this window.

Back in September I wrote a Slate column titled “I Have Never Been More Worried About American Democracy Than I Am Right Now.” Since then, my worry has only increased. The attack on the Capitol was not only predictable but predicted by Trump’s actions over the past five years. The scrawling of “Murder the Media” on a door in the Capitol tells you all you need to know about the anti-democratic tendencies of some of these thugs, which are visible firsthand in horrifying footage of a confrontation with police at the doorstep of the speaker’s lobby that left one insurrectionist dead.

Things are going to get much worse if the Democrats—who in two short weeks will have united control of the federal government—do not act quickly and decisively.

Update, Jan. 11, 2020: This piece has been updated to reflect that this is the author’s proposal for the substance of a John Lewis Voting Rights Act.

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