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Protecting voting rights isn’t enough to save democracy

Election law expert Richard L. Hasen on the problem of election subversion — and what can be done to stop it.

The US Capitol on January 13, 2022, in Washington, DC.
Mandel Ngan/AFP via Getty Images

About a year after President Joe Biden’s inauguration — and following the one-year anniversary of an insurrection that sought to block the certification of the 2020 presidential election — a majority of Republican voters continue to cling to the falsehood that Biden was illegitimately elected to the White House.

The rejection of the legitimacy of the 2020 election by many Republicans has fueled widespread, state-level voter suppression campaigns and a growing effort to subvert America’s election system.

In a last-ditch effort, Biden is calling for filibuster reform to pass two voting rights bills: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Both bills face long odds in the Senate without changing the filibuster rules.

But as the 2022 midterm elections loom, voting rights and election law experts are sounding the alarm about risks that neither bill would fully address.

They’re calling attention to election subversion, a strategy to would negate legitimate election results by simply refusing to accept them — like, for example, appointing rogue presidential electors. (Following the 2020 election, Trump pressured Republican lawmakers in states like Michigan, Georgia, and Pennsylvania to replace the state’s electors in an attempt to reject each state’s popular vote.) This part of election law hasn’t incited as much public outrage as the many laws restricting voting passed by Republican-run state legislatures in 2021.

“The 2020 election showed numerous paths for trying to manipulate election outcomes,” said Richard L. Hasen, a professor of law and political science at the University of California Irvine and the author of Election Meltdown and the forthcoming Cheap Speech. “And although the system barely held last time, because we had some heroic people, including heroic Republicans, there’s good reason to believe a lot of those people will no longer be in office at the time of the next election,” he said.

According to Hasen, lawmakers can’t simply believe that democracy will hold itself together against these threats.

As the Senate prepares to consider voting rights legislation — and as legislative circumstances for Democrats remain bleak — I talked to Hasen about what’s at stake for voters and the country’s election system overall. Our conversation has been edited for length and clarity.

Fabiola Cineas

This week seems like a big moment for voting rights. Biden and Harris went to Atlanta to push for voting rights legislation and on the heels of the January 6 anniversary, people are talking about the threat of election subversion. And unlike before, Biden is pushing lawmakers for a filibuster carve-out. But at the same time, voting rights activists are boycotting Biden’s speech, saying he’s put forth little action. What do you make of all of this? Does Biden’s speech mean anything right now?

Richard L. Hasen

What is Biden’s endgame? I don’t understand it. It seems to me that he’s setting up a lot of people for disappointment. He’s making it a priority now because probably he doesn’t have much choice in terms of getting pressure from the Democratic base to do something. But it seems like too little too late. Really. He should have been on voting rights last summer. He should have been giving speeches all around the country, getting a lot of attention to this issue. He should have gone to West Virginia and Arizona. I’m not seeing any movement among those wavering senators about making some different filibuster rule to get this thing passed.

And meanwhile, I think Democrats separately squandered an opportunity that they could have had back last January, a year ago, to deal with the election subversion issue. There seems like there’s maybe a little more hope about that because you are hearing noises from some Republicans to the effect of Electoral Count Act reform and other kinds of anti-subversion legislation. Maybe there’s a path for that, I don’t know. But it doesn’t seem to be quite as dire as the situation related to voter suppression.

Fabiola Cineas

Do you give Biden any credit for going farther than he ever has in talking about a filibuster carve-out?

Richard L. Hasen

Well, sure. He’s actually saying it, I just don’t know what good it is going to do at this point. I wrote a piece in March of last year saying this needs to happen now. This needed to be prioritized back then — Democrats were spending all this time on the very broad HR 1 [the For the People Act], which is even broader than the Freedom to Vote Act, but since they were talking about voting rights they should have been focused on the John Lewis bill which was much more pinpointed in dealing with voter suppression and, which, I thought had a better chance to pass. Although now, neither one seems like it’s going to get us there.

Fabiola Cineas

And though these laws — the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act — have been on the table for months and months, would they still have the power to restore and protect voting rights and also fight election subversion?

Richard L. Hasen

I think that if both the John Lewis Voting Rights Act and the Freedom to Vote Act passed in their current form, they would go a very long way toward dealing with serious voting rights problems in the country, from restoring preclearance to making it harder to engage in partisan gerrymandering to improving campaign finance disclosure. It would not have done much on the issue of election subversion, which I think of as kind of a separate type of problem.

Fabiola Cineas

What is your definition of a free and fair election?

Richard L. Hasen

In a free and fair election system, all eligible voters can easily cast a ballot that will be fairly and accurately counted. And the results will reflect the choices of those voters. So it’s a low bar if we can reach it.

Fabiola Cineas

You’ve drawn attention to the fact that we are now at a place where a majority of Republican voters say they believe Trump’s “big lie” that the election was stolen. And accepting this lie is part of what it means to be a Republican. This also means that they’re willing to accept a stolen election for their side next time. What does this mean for 2024 and how do you see this playing out for midterms this year?

Richard L. Hasen

First of all, I think this issue is the subversion issue, not voter suppression. The biggest impact of these false beliefs on the part of Republicans about a stolen election on 2022 is that they make it more likely that those who will be running elections in 2024 will be people who embrace the “big lie.” There’s a very good NPR compilation of [more than a dozen] Republicans running for secretary of state or other election office, who have embraced the “big lie” or used to say that Biden illegitimately won the election. Those people, if they’re running the election in 2024 for president, create a dual problem. First, are they going to fairly administer the election and second, even if they would fairly administer the election, would voters believe that they would fairly administer the election? After all, if you agree with these false claims, how do we know if you could tell truth from fiction? Or if you would be on the level of explaining the reality of what’s going on in your elections?

Fabiola Cineas

As we settle into a new year, what are some of the key problems affecting the US election system now?

Richard L. Hasen

I think the most immediate threat — and this is the point I’ve been trying to drive home as an even greater risk than voter suppression, which is a real problem — is this risk of stolen elections or election subversion. This is something I never expected to have to worry about in the contemporary United States but here we are. It’s a risk that the true election winner will not get declared the winner. And this is a risk that is uniquely problematic for the presidential election because that election features so many steps in the process between the time that the voters votes and the time that those votes are finally subject to certification by Congress.

And what we learned from 2020 and Trump’s attempts to manipulate the process is that there are lots of pressure points. We depend so much on people acting in good faith, rather than on rules that limit discretion. We need to be able to limit discretion and make sure that those who are in charge of counting and certifying the votes are people who are going to do so, following the rules. Changing the rules won’t be enough, but changing the rules is necessary.

Fabiola Cineas

Can you say more about the threats that election administrators are facing, from being forced to leave the field to being threatened by Trump, and how these endanger the election ecosystem?

Richard L. Hasen

Administrators are saying they’re going to retire before 2024 and some of the people who are going to replace them are people who believe the false claims about the 2020 election being stolen. So we have both a loss of experience among those who administer elections but we also have a potential that the people who are replacing them are going to be not administering elections fairly. And election administrators for the most part are not paid well. They work under very stressful conditions under the best of circumstances. And to have them face the threat of violence and being accused of committing fraud when they’re not is very problematic.

Our election administrators, our poll workers, are our frontline. We need to have competent election administrators who are acting fairly and whose results are accepted as legitimate and when that building block is undermined the whole edifice of our democracy is threatened.

Fabiola Cineas

Can the 1887 Electoral Count Act, which sets the deadlines by which states have to certify and then transmit their slate of electors to Congress, actually be amended to prevent partisan manipulation of Congress’ count of state electoral slates?

Richard L. Hasen

Amending the Electoral Count Act is something that would be helpful in lowering the risk of election subversion. It alone won’t eliminate the risk. But I think a lot could be done. Especially if done on a bipartisan basis. If Democrats and Republicans agreed to the changes that would help a great deal.

Fabiola Cineas

So what’s your response to people who say that what you’re laying out is unlikely to happen? Many people seem to believe that things will just work themselves out.

Richard L. Hasen

I have a few responses. One is, if you look at 2020, we came much closer to a successful subversion of the election results than a lot of people understand. It wouldn’t have taken much if Mike Pence had been assassinated or he had decided to try to take power in his own hands to reject the Electoral College vote, or if state legislatures had sent in a few slates of electors causing a political and constitutional crisis. So one answer is, we’re a lot closer to this than people think.

And the other is, even if the risk is relatively small, which I don’t believe it is, it’s still catastrophic. I’ve said before, I feel kind of like a climate scientist or an epidemiologist. This is what I do. I study this stuff all day every day and my warning lights are flashing red. You look at people who study the rise of authoritarianism and transitions from democracy in other countries — they’ve reached the same conclusion.

If you talk to Larry Diamond at Stanford or Steve Levitsky and Daniel Ziblatt, the authors of How Democracies Die, those authors are briefing Senate Democrats. If you talk to those people, they are frightened. I think people who try to minimize the risks are just in denial or not paying attention.

Fabiola Cineas

Why do you think some lawmakers continue to act like democracy isn’t being seriously threatened?

Richard L. Hasen

Well, I think it’s different for Democrats and Republicans. I think Republicans, many of them are afraid to stand up to Donald Trump. They know they’ll face a primary. Look what happened to [GOP Sen.] Mike Rounds this weekend when he said that the election was fair. He was attacked by Trump. There’s a huge cost to be paid as a Republican for standing up.

And Democrats, it’s more of a mystery to me as to why they don’t see the house on fire like I do. You’ll have to ask them. There’s been a reluctance to separate out the question of subversion from voting rights. I think they should have been pursued separately on separate tracks as sort of a pursuit on a bipartisan basis in January of 2021. That’s when emotions were still raw, when Mitch McConnell was still talking about what a danger Donald Trump was to democracy, something he’s no longer talking about.

Fabiola Cineas

What can Democrats do now to move forward and fight election subversion while also restoring and protecting voting rights?

Richard L. Hasen

There’s some reporting now that there are at least four Republican senators that are in talks about reforming the Electoral Count Act. I would hope that that would broaden, both in terms of the number of Republican senators that would be willing to have a discussion about this, as well as broadening beyond the Electoral Count Act to other provisions that can minimize election subversion. I think there’s more room for bipartisan compromise on election subversion. Maybe we’ll get some movement in that direction.

Fabiola Cineas

And looking to midterms, is there anything more immediate that we should focus on when it comes to voting rights?

Richard L. Hasen

What the future holds is uncertain. A lot of the opportunities that may have been available in Congress seem to be closing. I think what we need to think about is what we as individuals can do to shore up our election system. I don’t know that any legislative solution is going to be forthcoming, and the danger to our election system is real. So it may take mass peaceful protests and organizing in order to assure that we have fair elections in the future. I don’t know that they’ll be necessary, but I think we need to be prepared for them because there are these risks that the vote count will not be fair.