[We are one, maybe two, elections away from a constitutional
crisis. The future of our democracy rests on whether those committed
to free and fair elections will prepare to defend that democracy.]
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HOW THE GOP WILL TRY TO SUBVERT OUR ELECTIONS  
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Marc Elias
October 13, 2021
Democracy Docket
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_ We are one, maybe two, elections away from a constitutional crisis.
The future of our democracy rests on whether those committed to free
and fair elections will prepare to defend that democracy. _

,

 

We are one, maybe two, elections away from a constitutional crisis.
More than a year ago — before Election Day — Donald Trump made
clear that he would not accept the results of free and fair elections
if he did not win. Too few people paid attention, discounting it as
the ravings of a soon-to-be failed candidate. In the days following
the November 2020 election, Trump and his allies executed a plan to
subvert the election results. While they failed, Republicans learned
from the experience and are prepared to try again. The future of our
democracy rests on whether those committed to free and fair elections
will prepare as well.

Immediately following the insurrection on January 6, Republican state
legislatures began laying the groundwork for 2022 and 2024. They
enacted new voter suppression laws optimized to disenfranchise Black,
brown and young voters. They created false narratives of election
irregularities and rallied their supporters around the Big Lie. Most
recently, they began using their power in the redistricting process to
ensure Republicans control the U.S. House over the next decade.

Meanwhile, Democratic efforts in the states have been more limited.
Where they control state power, Democrats have not expanded voting
rights at the same pace as Republicans have restricted them. New York
still has many restrictive voting laws, including a ban
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food and water to people waiting in line at the polls. Virginia
requires an ID to vote in person and a witness signature to vote by
mail. Colorado, which prides itself on its vote-by-mail law, rejected
29,000 mail-in ballots
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two-thirds of which were from voters under the age of 35.

At the federal level, Democrats have proposed two pieces of
significant voting rights legislation, the John Lewis Voting Rights
Advancement Act and the Freedom to Vote Act. Together they would rival
the magnitude of the 1965 Civil Rights Act, yet neither has prospects
for success as long as the Senate’s filibuster rule applies.

Facing this grim reality, some have begun to urge Congress to ignore
voter suppression and focus exclusively on the potential for election
subversion in 2024. Specifically, they obsess over the outdated and
imprecise Electoral Count Act — the process by which states select
and Congress certifies presidential electors. While no one questions
that this Act needs reform, the idea that we can fix democracy simply
by revising this one law is simplistic and wrong. It ignores the fact
that election subversion begins with the rules used for voting and
continues through state certification processes. It also ignores the
reality that presidential elections are not the only ones being
targeted for subversion.

This misguided effort ignores the fact that voting rules that maximize
participation result in fewer disputed outcomes, while complex and
restrictive rules create a larger pool of disputed ballots that can be
used to justify post-election challenges. Republicans learned from
2020 that the absence of virtually any fraud was a stumbling block to
their efforts to overturn elections. Since they cannot force voters to
commit fraud, they are redefining the term. Several states, including
Georgia, Iowa, Kansas and Texas, have criminalized practices that were
previously legal. Some of these laws target voters, whereas other
provisions are aimed at election workers. The result is the same. The
goal of these new provisions is to manufacture fraud where none
exists.

By manufacturing fraud, Republicans create controversy that can be
exploited after Election Day by Republican candidates who do not
prevail. The faux outrage created by the right-wing echo chamber
vilifies election workers and provides excuses for disregarding
election results.

Republicans are also deeply invested in making key changes to the
vote-counting process. In Georgia and Arkansas, the legislature has
given Republican-controlled partisan election boards more power. In
Arizona, the Republican Legislature passed a new law transferring much
of the power to enforce these rules from the Democratic secretary of
state to the Republican attorney general. Republicans are also
organizing and recruiting “Big Lie” advocates to run county
elections and staff local election boards.

Republicans know that the single point of greatest vulnerability for
election subversion is the state certification of election results.
And each of these changes, from making voting more difficult to
ensuring that those who count votes are more partisan, provides an
excuse for Republican election officials to refuse to certify election
results.

A certificate of election signed by the secretary of state and
governor is the golden ticket to a seat in the House or Senate.
Without a fully executed certificate of election, Senate rules and
House precedent provide no simple way for a member of either chamber
to be seated. A certificate of ascertainment signed by the governor
determines which presidential candidate’s electors meet as a part of
the Electoral College. 

If Georgia Governor Brian Kemp and Arizona Governor Doug Ducey had
refused to sign their states’ certificates of ascertainment,
President Joe Biden would have faced a difficult path to have his
electors in those states recognized. Had those two governors also
refused to sign certificates of election for the three senators and
eleven Democratic members of Congress elected in 2020, Democrats would
have likely been in the minority in both the House and Senate.

It would be troubling enough if election certifications could be
sabotaged by governors or secretaries of state. Republicans are
already fielding candidates for those offices who would likely block
the certification of free and fair election results they do not
support.  But, as Republicans demonstrated in 2020, they know how to
target vulnerabilities in the system below that level.

Consider what nearly happened last year in Michigan.

The 2020 election results in Michigan were not especially close.
President Biden won the state by 150,000 votes
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Gary Peters won reelection to the Senate by 90,000 votes.
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margins and the fact that both the governor and secretary of state of
Michigan are Democrats, Republicans knew that they would have no luck
convincing the officials not to certify the presidential and
senatorial election results.

This forced Republicans to look further down the line in the Michigan
certification process.

In Michigan, official election results originate at the county level.
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every county, a bipartisan canvassing board is responsible for
collecting the results from the towns and precincts, double-checking
them to make sure there are no obvious tabulating errors and then
sending those results onto the state for compilation.

Under pressure from the Republican Party, the Republican members of
the Wayne County Board of Canvassers initially refused to certify the
election results in the state’s largest county
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no legitimate reason. It was only after this became national news and
pressure mounted
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they reversed course and agreed to certify the county’s results to
the Michigan State Canvassing Board.

Undeterred, Republicans launched an intense campaign to pressure the
two Republican members of the statewide bipartisan board to refuse to
certify the results. Again, the relentless pressure from the
Republican Party had an impact — one of the two Republican
members refused to certify the results
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abstaining. Luckily, the other Republican did not. The results were
certified and sent on to the governor and secretary of state, who then
signed the certificate of ascertainment for president and certificate
of election for the Democratic candidate for Senate.

There are steps we can still take to protect our democracy — that we
must take to protect our democracy — but every day that passes
brings us one day closer to a crisis. We cannot wait until 2024 to
address this problem. Given the opportunity, Republicans will deploy
these tactics to win control of the House and Senate in 2022.

We must begin by honestly acknowledging the scope and complexity of
the problem. Pundits and law professors cannot solve this in a sound
bite or a law review article. There are no simple fixes or silver
bullets. The fight against election subversion is ongoing and
multifaceted. We must remain vigilant and proactive in detecting and
combating these threats using every tool available, including
legislation, public pressure, organizing and litigation.

Critically, we must also resist the advice to disconnect the fight for
voting rights from the fight against election subversion. Subverting
an election is made easier by confusing and restrictive voting rules.
When the process of voting has been criminalized, manufactured claims
of fraud will give an easy excuse to those who seek to overturn the
results. Anyone who suggests that congressional Democrats pare back
the protection of voting rights to focus on election subversion
neither understands the problem nor Republican motivation and
strategy.

Additionally, we need to recognize that extolling and protecting
election officials’ autonomy can be dangerous. We must reject
efforts to conflate the interests of election administrators and the
interests of voters. When enacting new laws and policies, we must
focus on voters while being skeptical of election officials’ claims
of inconvenience or secrecy. Some election workers will do the work of
democracy. But others will try to subvert it. We cannot build a system
that lionizes all election officials and fails to provide the tools to
remove those who are undermining the will of the electorate.

For its part, in addition to expanding and protecting voting rights,
Congress must reform the state election certification process.

I have previously written:
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_Congress should require — for federal elections at least — that
states certify their elections via a three-person certification
commission that is comprised of the state’s chief justice, the
justice who most often voted contrary to the chief justice in
published decisions of the state supreme court during the year prior
and a third justice to be chosen by those two justices. This
certification commission would be responsible for reviewing the
results, tabulations and underlying election records to ensure that
the final certified results are accurate. The signatures of at least
two of those commission members would be required on the certificate
of election to have a binding effect._

Such a law is essential to reducing the chances that election
certifications are blocked by partisan officials acting in bad faith.

Congress must also clearly spell out that the role of canvassing
boards and state officials in performing their duty to certify
elections is ministerial. It must explicitly limit the ability of
those officials to rely on any information or allegations other than
the actual election returns from the precincts and counties. And, it
must provide a clear private right of action for candidates to sue
election officials who fail to perform their duty.

Finally, we must invest in electing Democrats to offices responsible
for election certification. This means spending more money to elect
Democratic governors, secretaries of state and county officials. It
also means recruiting good people to serve as poll workers and on
local and county canvassing boards.

I have no doubt that we are only one, maybe two, elections from a
constitutional crisis. My fear is that those who support democracy are
not as prepared or as focused as those who seek to subvert it. But, I
hope I am wrong. Now is the time to act.

_MARC ERIK ELIAS is an American attorney specializing in election law,
voting rights and redistricting. He is the founding partner of Elias
Law Group. Elias was previously a partner at Perkins Coie and head of
the firm's political law practice. He served as general counsel for
the Hillary Clinton 2016 presidential campaign and John Kerry 2004
presidential campaign. In 2020 and 2021, on behalf of the Biden
campaign and the Democratic National Committee, Elias oversaw the
state-by-state response to lawsuits filed by the Trump campaign
contesting the election results. In 2020, he founded Democracy Docket,
a website focused on voting rights and election litigation in the
United States._

_American democracy is at stake and it depends on each one of us to
defend it. The best way to fight against voter suppression? Stay
informed._

DEMOCRACY DOCKET is the leading progressive media platform dedicated
to providing information, opinion and analysis about voting rights,
elections and democracy.

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