This article is part of a collection on the events of Jan. 6, one year later. Read more in a note from Times Opinion’s politics editor Ezekiel Kweku in our Opinion Today newsletter.
The saturation coverage of the anniversary of the Jan. 6 insurrection and of Donald Trump’s attempt to bully his way into a reversal of his loss in the 2020 presidential election has felt dispiriting. More than 70 percent of Republican voters say that they believe Mr. Trump’s false claim of a stolen election, and 59 percent say that accepting the Big Lie is an important part of what it means to be a Republican today.
As we all know, the hyperpolarized, social media-driven information environment makes it virtually impossible to persuade those voters that the 2020 election was fairly run. Those who believe the last election was stolen will be more likely to accept a stolen election for their side next time. They are more willing to see violence as a means of resolving election disputes. Political operatives are laying the groundwork for future election sabotage and the federal government has done precious little to minimize the risk.
Many people who are not dispirited by such findings are uninterested. Exhausted by four years of the Trump presidency and a lingering pandemic, some Americans appear to have responded to the risks to our democracy by simply tuning out the news and hoping that things will just work out politically by 2024.
We must not succumb to despair or indifference. It won’t be easy, but there is a path forward if we begin acting now, together, to shore up our fragile election ecosystem.
Let’s begin by reviewing some of the key problems. Those who administer elections have faced threats of violence and harassment. One-fourth of election administrators say that they plan to retire before 2024. Republican election and elected officials who stood up to Mr. Trump’s attempt to rig the 2020 vote count, like Georgia’s Secretary of State, Brad Raffensperger, who refused Mr. Trump’s entreaties to “find” 11,780 votes to flip the election to him, are being pushed out or challenged for their jobs in primaries by people embracing Mr. Trump’s false claims, like Representative Jody Hice.
The new Republicans running elections or certifying or counting votes may have more allegiance to Mr. Trump or his successor in 2024 than to a fair vote count, creating conditions for Democrats to join Republicans in believing the election system is rigged. If Mr. Hice is Georgia’s Secretary of State in 2024 and declares Mr. Trump the winner of the 2024 election after having embraced the lie that Mr. Trump won Georgia in 2020, which Democrats will accept that result?
Trumpist election administrators and Mr. Trump’s meddling in Republican primaries and gerrymandered Republican legislatures and congressional districts create dangerous electoral conditions. They make it more likely that state legislatures will try to overturn the will of the people — as Mr. Trump unsuccessfully urged in 2020 — and select alternative slates of presidential electors if a Democrat wins in their states in 2024. A Republican majority in the U.S. House of Representatives in 2025 could count the rogue, legislatively submitted slates of presidential electors instead of those fairly reflecting actual election results in the states. In the meantime, some Republican states are passing or considering additional laws that would make election sabotage more likely.
The federal government so far has taken few steps to increase the odds of free and fair elections in 2024. Despite the barely bipartisan impeachment of Mr. Trump for inciting an insurrection and the barely bipartisan majority vote in the U.S. Senate for conviction, Mr. Trump was neither convicted under the necessary two-thirds vote of the Senate nor barred from running for office again by Congress, as he could have been under Section 3 of the Fourteenth Amendment for inciting insurrection. While the Department of Justice has prosecuted the rioters — obtaining convictions and plea agreements for hundreds who trespassed and committed violence — so far no one in Mr. Trump’s circle, much less Mr. Trump, has been charged with federal crimes connected to Jan. 6 events. He faces potential criminal action in Georgia for his call with Mr. Raffensperger, but neither indictment nor conviction by a jury is assured.
Congress has fallen down, too. House and Senate Republicans bear the greatest share of the blame. Some were just fine with Mr. Trump’s authoritarian tendencies. Others abhorred his actions, but have done nothing of substance to counteract these risks. The Senate minority leader, Mitch McConnell, gave an impassioned speech against Mr. Trump’s actions after Jan. 6, but he did not vote for conviction, perhaps fearing the wrath of the Republican base.
More surprisingly, Democratic House and Senate leaders have not acted as if the very survival of American democracy is at issue, even though leading global experts on democratic backsliding and transitions into authoritarianism have been sounding the alarm.
President Biden put it well in his Jan. 6 anniversary speech about Mr. Trump and his allies holding “a dagger at the throat of America, at American democracy.” But we need action, not just strong words.
Here are the three principles that should guide action supporting democratic institutions and the rule of law going forward.
To begin with, Democrats should not try to go it alone in preserving free and fair elections. Some Democrats, like Marc Elias, one of the leading Democratic election lawyers, are willing to write off the possibility of finding Republican partners because most Republicans have failed to stand up to Mr. Trump, and even those few Republicans who have do not support Democrats’ broader voting rights agenda, such as passage of the John Lewis Voting Rights Advancement Act.
Flying solo is a big mistake. Democrats cannot stop the subversion of 2024 election results alone, particularly if Democrats do not control many statehouses and either house of Congress when Electoral College votes are counted on Jan. 6, 2025. Why believe that any legislation passed only by Democrats in 2022 would stop subversive Republican action in 2024? A coalition with the minority of Republicans willing to stand up for the rule of law is the best way to try to erect barriers to a stolen election in 2024, even if those Republicans do not stand with Democrats on voting rights or other issues. Remember it took Republican election officials, elected officials, and judges to stand up against an attempted coup in 2020.
Other Republicans may find it in their self-interest to work with Democrats on anti-subversion legislation. Senator Minority Whip John Thune recently signaled that his party may support a revision of the Electoral Count Act, the old, arcane rules Congress uses to certify state Electoral College votes. While Mr. Trump unsuccessfully tried to get his Republican vice president, Mike Pence, to throw the election to him or at least into chaos, Republicans know it will be Democratic vice president Kamala Harris, not Mr. Pence, who will be presiding over the Congress’s certification of Electoral College votes in 2025. Perhaps there is room for bipartisan agreement to ensure both that vice presidents don’t go rogue and that state legislatures cannot simply submit alternative slates of electors if they are unsatisfied with the election results.
Reaching bipartisan compromise against election subversion will not stop Democrats from fixing voting rights or partisan gerrymanders on their own — the fate of those bills depend not on Republicans but on Democrats convincing Senators Manchin and Sinema to modify the filibuster rules. Republicans should not try to hold anti-election subversion hostage to Democrats giving up their voting agenda.
Second, because law alone won’t save American democracy, all sectors of society need to be mobilized in support of free and fair elections. It is not just political parties that matter for assuring free and fair elections. It’s all of civil society: business groups, civic and professional organizations, labor unions and religious organizations all can help protect fair elections and the rule of law. Think, for example, of Texas, which in 2021 passed a new restrictive voting law. It has been rightly attacked for making it harder for some people to vote. But business pressure most likely helped kill a provision in the original version of the bill that would have made it much easier for a state court judge to overturn the results of an election.
Business groups also refused to contribute to those members of Congress who after the insurrection objected on spurious grounds to Pennsylvania’s Electoral College votes for Mr. Biden. According to reporting by Judd Legum, “since Jan. 6, corporate PAC contributions to Republican objectors have plummeted by nearly two-thirds.” But some businesses are giving again to the objectors. Customers need to continue to pressure business groups to hold the line.
Civil society needs to oppose those who run for office or seek appointment to run elections while embracing Trump’s false claims of a stolen election. Loyalty to a person over election integrity should be disqualifying.
Finally, mass, peaceful organizing and protests may be necessary in 2024 and 2025. What happens if a Democratic presidential candidate wins in, say, Wisconsin in 2024, according to a fair count of the vote, but the Wisconsin legislature stands ready to send in an alternative slate of electors for Mr. Trump or another Republican based on unsubstantiated claims of voter fraud or other irregularities? These gerrymandered legislators may not respond to entreaties from Democrats, but they are more likely to respond to widespread public protests made up of people of good faith from across the political spectrum. We need to start organizing for this possibility now.
The same applies if Kevin McCarthy or another Republican speaker of the House appears willing to accept rogue slates of electors sent in by state legislators — or if Democrats try to pressure Kamala Harris into assuming unilateral power herself to resolve Electoral College disputes. The hope of collective action is that there remains enough sanity in the center and commitment to the rule of law to prevent actions that would lead to an actual usurpation of the will of the people.
If the officially announced vote totals do not reflect the results of a fair election process, that should lead to nationwide peaceful protests and even general strikes.
One could pessimistically say that the fact that we even need to have this conversation about fair elections and rule of law in the United States in the 21st century is depressing and shocking. One could simply retreat into complacency. Or one could see the threats this country faces as a reason to buck up and prepare for the battle for the soul of American democracy that may well lay ahead. If Republicans have embraced authoritarianism or have refused to confront it, and Democrats in Congress cannot or will not save us, we must save ourselves.
Richard L. Hasen (@rickhasen) is a professor of law and political science at the University of California, Irvine, and the author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy” and the forthcoming “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It.”
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