Can Congress Insure Fair Elections?

At a bleak moment for voting rights in the U.S.—Republican-controlled state governments across the country, spurred in part by former President Trump’s false claims of a rigged election, are imposing new restrictions on voters and election workers—the possibility of reform rests largely with Senator Joe Manchin. Two weeks ago, Manchin, a conservative Democrat from West Virginia, made clear that he did not support H.R. 1, also known as the For the People Act, an expansive voting-rights and campaign-finance bill introduced by the Democrats. Last week, Manchin released his own compromise bill, which includes Republican priorities, such as mandatory voter identification. Manchin’s bill quickly garnered support from some Democrats, including Stacey Abrams, who view it as the Party’s only chance to fix the voting system, but Senate Republicans still intend to block it. And Manchin has repeatedly said that he will not vote to end the legislative filibuster, meaning that neither his bill nor a narrower proposal—such as the John Lewis Voting Rights Advancement Act, which focusses on restoring parts of the Voting Rights Act of 1965—is likely to become law.

I recently discussed the future of voting reform with Richard L. Hasen, a professor at the University of California, Irvine, School of Law and an expert in elections law. During our conversation, which has been edited for length and clarity, we talked about whether Democrats erred in putting forth a broad bill, whether the threat to free elections comes from Congress or the states, and the biggest obstacles to a free election in 2024.

If you were designing a bill for Congress to prevent the subversion of a future election, what would that bill include? And how has your answer changed or not changed since the wave of state laws we’ve seen in the last several months?

I think the best place to start is to differentiate between election subversion and voter suppression. We’ve been hearing for many years about voter suppression: things that make it harder for people to register and to vote, like the provision of the Georgia law that says you can’t give water to people waiting on line to vote. That’s a different concern than this idea of election subversion, which is trying to manipulate the rules for who counts the votes in a way that could allow for a partisan official to declare the loser as the winner. This was, for example, a concern when President Trump called the secretary of state of Georgia, Brad Raffensperger, in the period after the election, to try to get him to “find” the 11,780 votes.

Much of what proposed federal legislation would do in both H.R. 1 and the John Lewis Voting Rights Advancement Act is aimed at stopping voter suppression. Stopping election subversion requires a different set of tools, and, ideally, you might want to have federal legislation that attacks both. But, if you’re focussing solely on election subversion, then I think there are a few important things to do. No. 1, require every state to hold elections using some form of a paper ballot. That provision is actually in H.R. 1—it’s a small part of a very large bill. But that standing alone is not only something that could get bipartisan support—it’s absolutely essential. Just imagine if in Georgia, in the period after the election, when Secretary of State Raffensperger ordered a hand recount of all the ballots, with the ability for the public to observe—if Georgia was using voting machines that didn’t use a piece of paper, then the conspiracy theories of the flipped votes would have had much more resonance.

No. 2, fixing the 1887 Electoral Count Act. That’s this arcane federal law that explains how Congress is supposed to count the Electoral College votes from each state. One of the provisions in there says you only need an objection from one senator and one representative in order to go into separate trial sessions to negotiate over whether or not Electoral College votes should be accepted or rejected. There should be a much higher threshold, and there should be a substantive standard for rejecting those votes, so we would not see something like a hundred and forty-seven members of Congress that voted to object to state Electoral College votes on January 6th. There are other things that could be done as well, such as requiring that there be some kind of court review or independent review of the standards that are used for declaring winners in elections, as well as various transparency requirements in dealing with election administration, so that people can go to court if there is a problem with the fairness of how the election is conducted.

I have seen you say elsewhere that you don’t think election subversion is easy to legislate against, though—correct?

I think there are some fixes that would make election subversion much more difficult, but, to truly deal with the problem, it requires not just strengthening law but strengthening norms.

When you are talking about paper ballots or making it easier to object in Congress, you have to wonder whether it will matter to a political party in the grips of Donald Trump.

Yeah, that would be the concern. I think fortunately that although some of the Republican Party is in the grips of Trump, the entire Party is not. If you look back at the post-November, 2020, history of Donald Trump’s attempts to subvert the outcome of the election, there were a number of principled Republicans who stood in the way, from the Republican member of the Michigan canvassing board who refused to object to the Michigan votes for Biden, to Georgia’s secretary of state, Brad Raffensperger, and governor, Brian Kemp, who’s been no friend to voting rights but stood up for the rule of law, to a number of conservative federal judges who rejected those kinds of claims out of hand.

When it mattered, the Republicans who were in charge or who had a formal role did the right thing. The problem is that many of them are being censured or excluded from the Party, and so we can’t count on that happening next time. We really have to strengthen whatever other tools we have, both as a matter of law and a matter of norms, to prevent rogue Trumpist election officials and elected officials from trying to subvert fair election outcomes.

But if you did have a party completely set on subverting an election, would it be hard to legislate against it?

Sure. Then, of course, that’s the end of the American democratic experiment, and we’re in deep trouble.

In the raft of voting legislation that we’ve seen in the past few months, what has most concerned you in terms of voter suppression, and what has most concerned you in terms of subversion?

There was, first of all, an expected tightening of the rules that allow people to easily cast a ballot, especially by mail. Requiring that Georgia voters provide certain identification information when they vote by mail is new. There was a report in the Atlanta Journal-Constitution that said over two hundred and seventy thousand voters would not be able to vote by mail with that requirement. In some instances, such as in Iowa, there’s been a criminalization of attempts by local election administrators to try to allow for the expansion of voting opportunities, such as in sending absentee-ballot applications to voters. That’s not something that should be criminalized. We’re seeing, in a number of bills, attempts to make the job of local election administrators even harder and dissuade people even more from becoming election administrators.

In terms of election subversion, the biggest concern I have right now is what happened in Georgia, where as punishment for Raffensperger standing up to Trump, the secretary of state has been taken out of any authority as to how the state election board does its job, to be replaced by someone handpicked by the Republican legislature. This board now has the power to do temporary takeovers of up to four counties. You could easily imagine the state boards taking over how the election is run in heavily Democratic Fulton County, and then imposing rules or messing with election counts in ways that could affect the outcome in the now very purple state of Georgia.

I have seen the argument made, most recently by Ross Douthat in the New York Times, that some of these bills limiting voting access will make it easier for Republican officials to essentially do the right thing if the moment comes in 2024, because they can say, Aha, fraud didn’t occur. That’s why I’m voting to certify the election.

Well, I think that that New York Times column is totally off base because there is no logical connection between the amount of fraud that exists in the election system and Trumpist Republicans’ belief that there is fraud in that election system. It doesn’t seem to me that passing these purported anti-fraud laws would make a difference, not to mention the fact that most of these laws don’t prevent any appreciable amount of fraud. They just are intended to suppress the vote, whether or not they actually have that effect. I don’t think much of that argument at all.

When you said we have to hope that Trumpist Republicans don’t hold sway in the Party, I would say that right now is the time to battle, state by state, for what these rules are going to look like. It was very important to get the business community involved and civic organizations involved in trying to water down some of the worst provisions of the Georgia and Texas laws. As bad as things look, they could actually be much worse. We need to see concerted action to assure that there is transparency and fairness in the vote-counting process, state by state. Ideally, a narrow bill supported in Congress, like fixing the E.C.A. [Electoral Count Act] and requiring paper ballots, would prevent some of the most egregious attempts to steal an election. Barring any further congressional action, it’s really going to be a state-by-state battle, unless the courts are going to get deeply involved in policing these things. There has to be a political cost to election officials for trying to steal an election.

Do you see election subversion as principally a problem at the state level or principally a problem at the federal level? It seems like you would need a completely united Republican Party—which, in 2020, you obviously did not have—for election subversion at the federal level. But you would not need a completely united Republican Party to tip the scales in a single state and give a not-accurate total of the vote count.

I think there’s reason to fear at both levels. I think you’re generally right, and that’s a reason for why Congress should have, in the last few months, focussed on urgent reform aimed at stopping election subversion rather than the messaging bill of H.R. 1. The danger is in both places because it wouldn’t take many more House members, at least, on the Republican side, to completely mess with the counting of Electoral College votes come the end of the 2024 election. I don’t want to minimize the danger of that problem. I mean, just imagine if Kevin McCarthy had been the Majority Leader rather than the Minority Leader on January 6, 2021.

Can you talk more about the Democrats’ choice to go all in on H.R. 1, even though it seems like it’s been clear for months that it had very little chance of passage? It also seems as if politicians and activists have spent much more time on voter suppression than on election subversion, even though of course neither should be minimized.

I can’t blame Democrats and activists for focussing on voter suppression, because it’s a much more tangible kind of thing to point out. Everybody can understand what it means to deprive voters of water when they’re waiting in long lines. That’s an easy sell, and that’s a compelling reason to get involved in trying to fix this. Election subversion is much more inchoate. It’s much harder to figure out how you deal with that and to sell the urgency of the situation to the American public as a priority, even though it should be a priority, even above fighting voter suppression.

The problem with H.R. 1 is that it was much broader than that. It includes measures aimed at stopping partisan gerrymandering, establishing public financing for congressional campaigns, establishing a code of ethics for the Supreme Court. It’s a Democratic wish list that, if Democrats had a supermajority in the Senate, maybe could be on the table. It seems like Democrats were much more interested in the messaging over the bill and the popularity of the reforms, many of which I support, than in actually trying to come up with a tight, actionable set of reforms that could speak to the urgency of the current moment.

What is your feeling about the John Lewis Voting Rights Advancement Act?

Well, the John Lewis bill would do a lot to deal with voter suppression, because what it would do is say that states with a history of racial discrimination in voting have to go back to the federal government and get approval for their laws, and show that these laws would not make minority voters worse off. Many of these laws would flunk that test. If the John Lewis bill were found constitutional by the Supreme Court and if it passed, both of which are quite uncertain, it could do a lot to deal with the issue of voter suppression. But it’s not clear to me that the John Lewis bill has fifty votes. Joe Manchin, despite saying that he supports it, wants to see it amended so that it would require federal approval for laws in all fifty states—which would be a much more difficult law to enforce, as well as raise different constitutional questions about whether Congress would be going too far in altering the balance between the states and the federal government in running federal elections.

And what about Manchin’s latest compromise? It seems like now the only hope of passing a bill is to try and pass this one with fifty votes, have it get filibustered by Republicans, and then have Manchin vote to change the filibuster rules.

I do think that Manchin is offering much more than half a loaf for Democrats. It would rein in partisan gerrymandering, it has major campaign-finance disclosure provisions, it would restore pre-clearance. In many ways, it is offering some of the most important features of what is in H.R. 1. It certainly is not the Democrats’ ideal wish list and includes a voter-I.D. requirement, which could be fine if it were implemented fairly, the way most advanced democracies do, not the way most American states do it. We could have a rational system. My biggest problem with the bill is that it doesn’t directly tackle election subversion. And absent from Manchin’s memo, which lists the primary provisions that he wants, is the requirement for a paper trail—which I think is absolutely essential.

Were you surprised Abrams went along with his plan?

I’m not. If you could require the drawing of fair districts and restore pre-clearance, those would be huge. In the 1965 Voting Rights Act, Congress required that jurisdictions with a history of racial discrimination get approval from the federal government before they make changes in their voting rules. And, to get approval, they would have to show that the changes would not make protected minority voters worse off. That’s the key part of the Voting Rights Act that the Supreme Court essentially killed off in 2013.

And any of these bills could be challenged in court, and a very conservative Supreme Court could reject all or part of them, correct?

Sure, right. The Supreme Court is a big question mark. In fact, one of the most important voting cases in the last few years is going to be decided by the Supreme Court, likely by the end of this month. It’s a case called Brnovich v. Democratic National Committee. At stake is whether Section 2 of the Voting Rights Act, the main part of the Voting Rights Act that the Supreme Court did not touch in the Shelby County case, is going to remain a tool that can be used to go after the most suppressive of the state and local voting laws. From oral arguments, it sure seems like Arizona is going to win this case. The question is not so much about what happens in the particular case in Arizona as much as the standard that the Supreme Court is going to set for examining laws that make it harder for minority voters to vote going forward.

I think that there’s tremendous pressure on the Supreme Court. It is now pretty clear that there’s not going to be comprehensive voting legislation coming out of Congress. You’ve got hundreds of suppressive bills that are in the wings in various states. If the courts are not going to serve as the backstop, you’re losing a major tool that could be used to stop voter suppression. The Supreme Court has got to be aware of what the stakes are.

How much of what we’re going through now is because the Electoral College is a crazy system, and how much of it is because the Republican Party is what it is, and even a different system would be open to abuses?

I think there are two issues when you talk about the Electoral College. No. 1 is its deviation from one person, one vote, right? The fact that Joe Biden can win with millions more votes than Donald Trump but it could be a squeaker in the Electoral College, depending upon how a few tens of thousands of votes shake out, creates the potential for minoritarian rule, which already is troubling.

But if you take the Electoral College as a given, it certainly seems to me that there are things that could be done to limit the kinds of manipulation of election results within the Electoral College process. For example, get rid of these boards of canvassers that do nothing but serve a ceremonial role with some states, because that just creates another avenue for partisans to mess with the system. Change the Electoral Count Act to make it harder to raise objections. There’s lots of specific things within the Electoral College framework that could be done to minimize the chance of an election being stolen. The No. 1 thing is having fair and transparent vote counting with independent review by the judiciary, to assure that fair accounting is taking place. It’s really a sad commentary on American politics that we even have to have this discussion about vote counts in the United States in 2021.