Protecting Our Electoral Institutions

The near-crisis that American government went through between Election Day and Inauguration Day should have sobered up discussions of campaign and election law. To quote William Baude, “After the 2020 presidential election, the peaceful transfer of power can no longer be taken for granted.” Quarrel if you wish about how many weeks there should be of early voting, whether lockboxes should be continuously supervised, and so on. “But all of those ballots are wasted paper unless the winner takes power and the loser does not.”

That’s from an excellent new California Law Review article by Baude, a law professor at the University of Chicago. (His paper is part of a symposium reacting to a lecture by law professor Pamela Karlan; see also this Volokh Conspiracy post summary.) His point is simple and timely: “We should not let long-term imperfections in our democratic structure distract us from more immediate threats.”

To recapitulate—not that anyone reading this does not know—a losing presidential candidate refused to acknowledge his loss, and he enlisted supporters in a vain effort to overturn that result through both regular and irregular channels. He and his supporters put various actors—state legislatures and election officials, Congress, federal judges, the vice president—under intense pressure to stray from their legally and constitutionally prescribed roles, and in many cases to breach their duties. In most cases they resisted that pressure, and a constitutional crisis was averted. But will the lines hold next time?

This is serious stuff. As we know, one cannot obtain from much of the Republican world even an acknowledgment of the problem, let alone a focused policy response. You might expect better from establishment liberals and progressive reformers, who are under no such inhibition. Yet they too have proved unequal to the moment.

One of their responses, for example, has been to double down on their years-running theme of voter suppression, a proven base-rouser. And yet that’s not what went wrong last year. Turnout surged notwithstanding the pandemic, including turnout among minority voters. If voting should happen to be even less suppressed in 2024, and turnout rises by another percentage point, will the country be out of the woods from the dangers of disputed succession? (Leave alone the increasing evidence that high turnout may no longer be good for Democrats, as was long the political wisdom.)

Then there’s the chief electoral legislation pushed by progressive forces in Congress over the past six months, the For the People Act. Almost none of the contents of this overstuffed bill respond to the events that unfolded between November and January. And we know why: It was largely composed of bills drafted long before November, aimed at scoring points in older fights, and often as symbolic exercises in signaling to constituency groups. Rather than reaching for a consensus on how to strengthen the electoral institutions that secure the peaceful succession of power, H.R. 1/S. 1 was assembled and promoted in such a way as to ensure that even the most moderate and solutions-minded GOP members would line up against it.

But leave aside the fate of that misbegotten bill and the mostly irrelevant debate over to what degree pandemic-related easing of voting methods should be made permanent. Baude notes a third way in which would-be reformers have concentrated at a front that at best is likely to misspend their energies, and at worst could prove dangerously counterproductive. 

That is the insistent and loud critique of national institutions such as the U.S. Senate (fails to generate reliably majoritarian outcomes, is subject to small-state and rural bias); the Supreme Court (too many Republican appointees who supposedly got there through an unfair, if not “rigged,” nomination process) and of course the Electoral College (all-time perennial punching bag). Baude agrees that all these institutions are flawed in one way or another, and that they might be redesigned to work in different and perhaps better ways.

But these institutions also have something else important in common. In the clinch, they worked. The Senate, the Supreme Court, and the Electoral College not only withstood the pressure applied to each, but did not come close to failing (at least leaving aside the contingency in which Capitol rioters might have succeeded in taking a large number of senators captive). There was a serious challenge to the workings of a democratic transition, for sure, but it did not come from these institutions. Why are we asked to see them as the problem in need of urgent repair?

My favorite Baude paragraph is this:

Indeed, there is a tension between surfacing the flaws in our rules for democracy and enforcing those rules against democracy’s enemies. It is no more than a tension – one can very well say that it is important to enforce the Constitution’s rules for transferring power and also that those rules can and should be improved or understood in freer or fairer ways. But it is important to be careful of the tension lest we get carried away. Attack the legitimacy of the Constitution too much, and those attacks might catch on. If those attacks catch on, it is harder to convince members of the other party that they are bound by the rules they don’t like. A very strong norm of saying “I’m sorry, those are the rules, and we don’t accept special pleading” turns out to be a very useful thing to have during an emergency – especially when the only person standing between the transfer of power and a constitutional crisis is the Vice President.

In short, he writes, in facing off against the enemies of democracy, “the shield against them may be more formalism, not less. So we destabilize our current imperfect arrangements at our own peril.”

It’s not hard to identify the elements of what a more focused defense of electoral institutions might look like. It might include ballot security measures aimed at ensuring vote counts fully (as opposed to mostly) backed by checkable paper trails; reform of state election procedure, following the lead of states like Florida, so as to provide real Election Night vote counts and thus lay to rest suspicions that late-reporting cities might have “dumped” anything; fixing the uncertainties in the Electoral Count Act; steps to clarify the duties (and if necessary narrow the discretion) of state canvassing boards. That’s just a start.

But first, we might need to move past the endless center-stage squabbling over electoral and institutional issues that have nothing to do with fixing any of this. Do we have the will?

Walter Olson is a senior fellow at the Cato Institute.