The threat of a repeat of the Jan. 6 attempt to overthrow the election — perhaps one that is more competent than the last — requires us to think about what reforms are needed to protect our democracy. Here’s a start.
Unfortunately, disreputable people with no real interest in public service seek office at an alarming rate. It’s impossible to stop all of them or rely on conscientious voters to reject them. But it is possible to lessen the opportunity for graft for them and their family members (who should be barred from holding White House positions, paid or unpaid, and Cabinet posts).
In advance of the next election, Congress should also remove the operational machinery Trump tried to exploit in 2021. That means passing federal laws that prohibit the firing or removal of state election officials except for cause — and with speedy court review. And it should require a paper ballot record for every vote, and agreed-upon audit standards for neutral and experienced election auditors.
It then needs to clean up the Electoral Count Act. Several fixes are needed. As election guru Richard L. Hasen pointed out, the ECA “provides that a state legislature may send in a slate of presidential electors when the state has ‘failed’ to make a choice of President on election day. The section of the Act contemplates something like a natural disaster that prevents voters from casting their ballots.” That needs to be tightened to insure that state legislatures stick to whatever the voters decide. No alternative slates of electoral voters allowed.
Moreover, the law should clarify that the scheme from John Eastman, who tried to get the vice president to toss out electoral votes, will not work. Hasen writes:
Certification is essentially a ministerial act; there is no discretion in the normal decision whether to accept or reject votes as counted by election officials. States should change laws to eliminate any discretion in the certification process; if there is a bona fide dispute about fraud or about who actually won an election, states should have procedures for judicial or other administrative review by those empowered to examine facts and evidence and make a determination about election outcomes.Congress also must amend or replace the 1887 Electoral Count Act to make it harder to raise frivolous objections to Electoral College vote counts. Right now, it takes only one Representative and one Senator to raise an objection and trigger a two-hour debate and vote on a particular state. Congress should set the threshold higher and otherwise rewrite the rules to bar frivolous challenges. Congress should also rewrite the ECA to exclude all but natural disasters and terrorist attacks from the definition of a “failed” election that could allow the state legislature to send in an alternative slate of electors.
Lawmakers also must address attempts to strong-arm or threaten election officials and interfere with a state’s counting process. Candidates themselves should be barred from private contacts with any official involved in election administration. (No calls, for example, to Georgia Secretary of State Brad Raffensperger.) Issues should be resolved by legal representatives of the parties, and representatives of both campaigns must be present for any such contact. As bizarre as it sounds, federal legislation must also make clear that it is illegal for a president to incite others to interfere with vote counting or to overthrow the election.
Then come reforms for social media platforms, which must not permit incitement and election disinformation to flourish after an election. A new regulatory scheme and agency should address rules of the road for these companies during elections. Habitual abusers of the rules must be permanently deplatformed.
Beyond legislation, lawyers — at least ones who want to keep their licenses — should be prevented from engaging in efforts to overturn democratic elections. Each state bar must adopt strict rules punishing frivolous challenges to election results. State legislatures and bar associations also must provide for disbarment of lawyers involved in plotting a coup — or advising others to overturn election results other than by good-faith claims raised in applicable courts. It should be clear as well that the attorney-client privilege does not extend to such plotting or shield lawyers from criminal liability.
It used to be that presidents conceded when they lost, members of Congress would not dream of overturning results, and state and local officials would never countenance interference with their duties — or recommend phony election audits to create uncertainty about the outcome. That universe no longer exists. That’s because one party has abandoned democratic norms and decided nothing should prevent it from obtaining power. In such a universe, laws are needed for all sorts of things that politicians never used to contemplate.
For example, an incumbent president must not be able to throw sand in the gears of the transition process under the Presidential Transition Act. Max Stier of the Partnership for Public Service recommends that starting the transition “should be a ministerial decision, it should be clearer, and it should be a low bar.” As he has explained, “This is not about deciding who’s president; this is about deciding whether someone is going to get the information they need to be ready to govern if they are in charge on Jan. 20.”
Whatever sensible proposals lawmakers come up with, Republicans will seek to thwart them. That is why it is essential that defensive laws (i.e., legislation to prevent subversion of an election) are not subject to a filibuster by the same party whose actions require extra safety measures to prevent future coup attempts.
It would be nice to think that decent, patriotic Americans would not elect disreputable people who continue to propagate lies about the election and who wink at violence. Alas, tens of millions still support Trump and his party. (Loss of rationality and civic literacy are their own tragedy, requiring solutions that go far beyond what the federal government can legislate.)
For now, then, the task is to padlock elections from the next set of conmen who seek to discredit and overturn the cornerstone of democracy. There is little time to spare, so Democrats should get cracking.
