Hasen warns: “Of greatest concern is that the activities of Trump and his allies from the November 2020 election through January 7, 2021 served as dress rehearsal for how to subvert election results in 2024 or in other future elections.” He outlines three main risks to our elections.
The first risk arises from the “independent state legislature" doctrine. As Hasen explains, this is “[t]he argument that Article II and Article I, section 4 give state legislatures virtually unlimited powers over the rules for running presidential and congressional elections — even if it means violating the state’s own Constitution.” He points out that if courts were to accept this doctrine, it would "create a potential earthquake in American election law by upending everything from voter initiatives setting the rules for congressional primaries to normal election administration decisions of state and local election administrators — not to mention, rendering state constitutional protections for voting rights a nullity in congressional and presidential election.”
Democrats have warned that electing a GOP House majority in 2022 would open the door to abuse of this process and refusal to recognize voters’ presidential choice in preference for state lawmakers’ pick. Hasen writes:
The benefit of technical arguments under the independent state legislature doctrine to subvert election results is that they have an aura of respectability and expertise. Lawyers in fine suits making legalistic arguments are much more appealing than desperate lawyers making unsubstantiated claims of ballot box stuffing and other chicanery. The doctrine would be a strong vehicle for a bloodless coup.
The second risk is the potential for manipulation of the results using newly-passed state laws that allow partisans to take over voting administration from impartial election officials. In other words, Republicans would simply steal the election by not counting valid votes.
And third, Hasen warns that U.S. elections may still be subverted by “violence or intimidation interfering with election processes,” pointing to the threat from Rep. Madison Cawthorn (R-N.C.) that “if our election systems continued to be rigged and continue to be stolen, then it’s going to lead to one place — and it’s bloodshed.”
This all should be unsettling to voters and to Congress. Indeed, perhaps every Democratic senator should read the paper (a brisk read at 32 pages) to comprehend how real the threat is and how simple it would be to address some election issues.
Possible legislative reforms include improved transparency with paper ballots and audit standards; reform of the 1887 Electoral Count Act to remove the potential for substituting legislatures’ pick for that of state voters and limit frivolous challenges (as we saw in 2020); safeguards to ensure that election administration remains in the hands of nonpartisan officials and cannot be taken over for political reasons; increased penalties for threatening election officials or tampering with results; and measures to counter election disinformation.
Still, the 2020 election demonstrated that even the best-constructed laws can be undermined by a party acting irrationally and under the tutelage of an authoritarian-minded demagogue. As Hasen acknowledges, we need more than simple legislative changes: “[I]t will be necessary to organize for political action to reenforce rule-of-law norms in elections. This means advocating for laws that deter election subversion and against laws making stolen elections easier; politically opposing would-be election administrators who embrace false claims about stolen elections; and preparing for mass, peaceful protests in the event of attempts to subvert fair election outcomes.”
That means a full solution is partially political. That would entail passing voting reform by carving out an exception to the filibuster and prevailing upon social media companies to police themselves on election disinformation (for example, by removing civil liability protection for false information when related to voting). There is also a need for the Jan. 6 select committee to issue a strong report that points a finger not only at the former president but his enablers who tried to subvert the election.
The solution also lies in our judicial system with the prosecution of domestic terrorists and their enablers. That should also include civil liability for the former president and his minions (including suits against “news” outlets that defamed voting software and voting machine companies) and the disbarment of lawyers who participated in an attempted coup — and might be inclined to do so in the future.
Realistically, however, it’s up to voters to boot out purveyors of the “big lie” who threaten our democracy. As Hasen writes:
Political opposition must be mounted against those who embrace the false claim that the 2020 election was stolen from Trump and who run for office or seek appointment to run elections. Spreading these false claims shows rejection of a commitment to the rule of law, and those [who] share the false claims deserve to have their positions on the 2020 election relentlessly challenged during their campaigns. If any of these persons attains office, then oversight from more fair-minded, responsible people will be urgently required. Getting such oversights may require new legislation, lawsuits, or even peaceful protests.
The 2020 election shattered the illusion that bipartisan norms insulated our elections in a way that less mature democracies could not. Instead, it’s now clear we have one party that would gladly swap U.S. democracy for a tin-pot dictatorship with its champion at the helm. Behind that party is an army of disgraceful, right-wing media outlets, pundits and think tanks that eagerly legitimize anti-democratic subversion for the sake of a buck. A recently-surfaced, six-point plan from lawyer John Eastman advising how the vice president could unilaterally pull off a coup underscores the seriousness of the threat and just how deceitful and un-American are MAGA’s enablers. (It should also highlight the need for disciplinary action against lawyers plotting to overturn our democracy.)
The good news is that despite all the voter suppression laws, right-wing propaganda and crass MAGA Republicans willing to wreck democracy to further their careers, there are still a lot more democratic (small "d") patriots than authoritarian-minded insurrectionists. It’s up to the majority to prevail upon the Senate to pass critical voting reform regardless of filibuster rules and preserve elections. Otherwise, our democracy is sunk.