“To support the Ins when things are going well; to support the Outs when they seem to be going badly, this, in spite of all that has been said about tweedledum and tweedledee, is the essence of popular government. Even the most intelligent large public of which we have any experience must determine finally who shall wield the organized power of the state, its army and its police, by a choice between the Ins and Outs. A community where there is no choice does not have popular government. It is subject to some form of dictatorship or it is ruled by the intrigues of the politicians in the lobbies.”
-Walter Lippmann, The Phantom Public (1925)
“Elections that ‘throw the bums out’ typically do not produce genuine policy mandates, even when they are landslides. They simply put a different elite coalition in charge. This bloodless change of government is a great deal better than bloody revolution, but it is not deliberate policy change . . . Having argued that the most prominent popular and scholarly intellectual defenses of democracy are incompatible with the empirical evidence, we can easily imagine . . . some irritated readers asking pointedly, ‘Well, would you rather live in a dictatorship?’ The answer, for the record, is no. We, too, are inspired and heartened when a government of torturers collapses, when the Berlin Wall comes down, or when an unarmed young man faces down a tank during the Tiananmen demonstrations in China. But that does not make our argument any less persuasive. It merely demonstrates that actual democratic processes have quite real practical virtues unrelated to the idealistic virtues ascribed to them in the folk theory of democracy.”
-Christopher Achen and Larry Bartels, Democracy for Realists (2016)
Right now no challenge is more fundamental to the future of democracy in the U.S. than securing a free and fair election in November. This most minimal requisite of democracy—the ability to compete in a fair election, and to “throw the bums out” in a peaceful and orderly way–has never been more in jeopardy than at this moment. The future of democracy itself is thus at stake in November. And what transpires in the months between now and then will help to determine the outcome.
The U.S. faces a wide range of serious public problems. Some, like legislative dysfunction, arbitrary forms of electoral representation, the long-term growth of inequality and social precarity, and the challenges presented by global warming, are deep and chronic. Others, like the deadly coronavirus, and the deepening economic crisis that attends public health efforts to limit it, are very current and particularly pressing.
But none of these problems is more fundamental to the future of democracy, right now, than the vulnerability of the November election.
There are three reasons why.
The first is that all of the above-mentioned problems demand the kind of bold public policy responses that the existing government—the Trump administration in league with the Republican-controlled Senate—is incapable of providing, because of the way it combines cruelty and incompetence with a doctrinaire hostility to constructive public policy. Only a fair election and a peaceful alternation of governmental power can make possible a serious effort to “solve” anypolicy problem.
The second is that the dangers of COVID-19 and the anxieties and uncertainties linked to it present particular challenges to the conduct of a fair election, requiring special measures to broadly ensure voter access to the ballot and a proper tabulation of the results.
And the third is that the Trump government is not simply incapable but increasingly autocratic, inspiring reasonable fear that as November approaches it might use all the means at its disposal to weaken and delegitimate political opposition, obstruct a fair election, and challenge the legitimacy of any vote that it loses. Former U.S. attorneyBarbara McQuade, writing in The Atlantic in late February 2020, put this starkly: “What Would Happen if Trump Refused to Leave Office? A peaceful transfer of power is necessary for American democracy to survive.” Not in our lifetime, and indeed in the history of the U.S. government, has this question been posed, so seriously, by so many commentators.
The danger is general
The broad danger here is not unique to the U.S. It is well understood that illiberalism has for years been on the rise throughout the world, making headway in most of the countries that at least used to be considered “advanced” or “consolidated” liberal democracies. Trumpism is merely the U.S. version of a pervasive illiberal right-wing populism. It is also well understood that the coronavirus has furnished illiberal or anti-liberal leaders throughout the world with the occasion to further attack liberal democracy and cement their autocratic power. This is true for manifestly authoritarian regimes like China or Russia, more “hybrid regimes”—we can argue about where to place Hungary and Turkey on this spectrum—and countries that still might be considered “electoral democracies,” such as India, Brazil, and the U.S.
Under current conditions, even the most minimal condition of a constitutional democracy—a free and fair competitive election—is placed in jeopardy. And it can no longer be taken for granted, if it ever could, that the electoral process can provide a basis for secure political opposition and the achievement of governmental power through peaceful, normal means.
The recent situation in Poland exemplifies this. In late April the Law and Justice government was determined to go ahead with the scheduled May election regardless of the pandemic, even though an election under these conditions was bound to be chaotic. “It’s absolutely impossible to organize a fair postal voting in the time frame we have,” saidJan Grabiec, spokesman for Civic Platform, the main opposition party. “The government is setting up an election that will most likely be questioned by state and European authorities.” But in early May the government, under pressure by opposition groups and by the E.U., agreed to postpone the election so that a better process can be put in place. The situation remains very murky, and it is unclear when and how the election—which the divided opposition has little chance of winning—will take place. As the New York Times reports:
But the government was forced to admit defeat this week in its often clumsy effort to set up Poland’s first postal election, for an electorate of more than 30 million, in less than a month. Officials said they still expected the rescheduled vote to rely on mail-in ballots. “Our experts are going to start working today on a deep change of the law on postal elections,” said Jaroslaw Gowin, head of a junior coalition partner. “The vote will take place in a way that is recommended by the health minister and experts. It will be an all mail-in vote. In the next two years, no other form of voting will be possible.”
Still, the move is likely to only deepen the political and constitutional crisis in Poland. Critics of the governing party had called for all elections to be suspended under a formal, limited state of emergency. Instead, Law and Justice simply suspended the election four days before it was scheduled, without giving its legal reasoning. “We still don’t know on what basis the elections are not taking place this Sunday,” said Marek Chmaj, an expert in constitutional law at the University of Warsaw, adding that there was no guarantee that the future election would be fair. “It’s chaos.”
A similar disorganization and chaos has surrounded many of the U.S. primaries this year, leading to a wide range of suboptimal outcomes, from rushed or peremptory postponements to elections held according to schedule amidst dangerous public health conditions, most notably in Wisconsin.
The November U.S. elections are still six months away. There is time to make provisions to ensure an election that is fair, safe, and expeditious. But Trump and his Congressional enablers have done everything they can to obstruct such measures and to indicate that they will exploit any logistical difficulties to delegitimize the results and retain power.
Electoral integrity faces three specific challenges
Three things will be particularly important.
(1) First, measures must be put in place to secure a range of voting options that includes by-mail balloting as well as safe in-person options. Such measures are currently being supported by a number of advocacy groups and think tanks, including the National Vote at Home Institute, the Alliance for Securing Democracy, and Indivisble. A strong case for such measures has also recently been made in Lawfare by Nathan Persily and Charles Stewart, III: “Ten Recommendations to Ensure a Healthy and Trustworthy 2020 Election.” One of the clearest and most comprehensive statements of what is necessary is “How to Protect the 2020 Vote from the Coronavirus,” a March report put out by New York University’s Brennan Center for Justice, the most prominent think-tank dealing with electoral reform issues in the U.S.. The report’s executive summary is worth quoting:
The key recommendations fall into five categories: (1) polling place modification and preparation; (2) expanded early voting; (3) a universal vote-by-mail option; (4) voter registration modification and preparation, including expanded online registration; and (5) voter education and manipulation prevention. We recommend that each state government establish an election pandemic task force to determine how best to implement relevant policy recommendations in their state. State and local officials must understand the laws and emergency rules applicable to their jurisdictions and consider appropriate adjustments to ensure that election officials have the authority needed to accomplish these modifications. For its part, Congress should immediately appropriate funds to ensure that election officials have the resources needed to make the needed adjustments to their voting systems. Congress should also establish baseline national rules to ensure that every eligible American can vote safely, securely, and accessibly in the midst of the pandemic. In the absence of Section 5 of the Voting Rights Act, care must be taken to ensure that changes are nondiscriminatory and do not negatively impact access for communities of color.
The Center has followed up with a second report, “Ensuring Safe Elections,” published on April 30, that offers a careful account of the kinds of investments that would be necessary to ensure safe elections in five key states: Georgia, Michigan, Missouri, Ohio, and Pennsylvania.
Because the U.S. lacks a strong national electoral system, and each of the 50 states has its own rules and procedures, there is extraordinary variation in the administration of elections. A feature of the distinctive system of U.S. federalism, rooted in the distinctive history of slavery and racial domination in the U.S., the range of electoral practices across the country is the source of many exclusions and dysfunctions—a point powerfully developed by the current Director of the Brennan Center, Michael Waldman, in his 2016 book The
RFight to Vote. At the same time, at this moment the decentralized nature of the electoral process in the U.S. can also be seen as a “blessing” for democracy. Because while Trump and Republican Senate Majority Leader Mitch McConnell are adamantly opposed to strong federal legislation to secure the November election, many states and localities already have systems of mail voting in place, and are doing what they can to prepare these systems in November.
As Ronald Brownstein noted in The Atlantic, writing about Florida, North Carolina, and Arizona in the Sun Belt, and Michigan, Pennsylvania, and Wisconsin in the Rust Belt:
“The Most Important 2020 States Already Have Vote by Mail: But the battle over expanding access is only getting started.” Each of the 50 states indeed admits a wide range of variation at the local level (See Rock the Vote’s COVID-19 Voting Information for detailed information). And some of the most innovative efforts to secure the vote are local level efforts, at the country or city level, in places like Milwaukee, Wisconsin, Broward County, Florida, and Allegheny County, Pennsylvania, to facilitate online voter registration; to opt into mail balloting; and to distribute ballots, sometimes with prepaid return envelopes.
At the same time, the full implementation of these measures across such a wide variety of locales is only possible with substantial financial support from the federal government, especially at this moment when state budgets are being drained by the pandemic. The Brennan Center and other groups have estimated that this will cost at least $4 billion. And on April 13, 2020, an Open Letter from Stand Up America, signed by 50 progressive organizations, publicly called for this level of election assistance. A number of proposals have been advanced by Democrats in Congress, bySenators Amy Klobuchar (Minnesota) and Ron Wyden (Oregon), and by Senator Elizabeth Warren (Massachusetts).
But leading Republicans have refused. Republican Rep. Thomas Massie (the same guy who objected to a voice vote on the first coronavirus stimulus bill and made a majority of House members return to D.C. for a vote) tweeted in March that “Universal vote by mail would be the end of our republic as we know it.” Trump Tweeted on April 8: “Republicans should fight very hard when it comes to state wide mail-in voting. Democrats are clamoring for it. Tremendous potential for voter fraud, and for whatever reason, doesn’t work out well for Republicans. @foxandfriends.” And he has relentlessly attacked by-mail voting ever since.
The pandemic has exposed some of the most problematic features of the U.S. archaic and voter-hostile electoral system. Without serious efforts to remedy at least some of these features, especially the improvement of easy voter access through by-mail voting, the fairness of the November election is in serious danger of being compromised.
(2) But by-mail voting can only work well if the mail system works well. And yet Trump seems determined to seize this moment to realize a long-term goal: to de-fund the United States Postal Service (U.S.P.S.) and further privatize mail delivery. A number of commentators have raised the alarm here. David H. Gans and Rebecca Damante have declared that “Trump’s Attacks on the Post Office Threaten Democracy.” Jake Johnson has sounded a similar theme: “’Catastrophic for Democracy’: Experts Warn Trump Assault on Postal Service Threatens November Elections.” David Atkins, writing in Washington Monthly, puts this even more starkly: “If the Postal Service Dies, So Does Democracy: Republicans are now trying to kill the post office and mail-in voting.” Atkins is worth quoting at length:
The United States Postal Service is set to run out of money by September. The previous round of emergency coronavirus aid did not take the long-beleaguered Postal Service into account. Conservative policymakers have been eyeing the USPS with hungry privatizing chops for a long time, and have been hamstringing it with ridiculous provisions like forcing the USPS to take into account 50 years of pension payments in advance in its budget, which no other corporation or public agency has to do. . .
It is possible that just as Republicans are attempting to thwart vote-by-mail to reduce voter turnout in a pandemic, they also just so happen to be defunding the Postal Service. . . But what if it’s not? What if the plan is an explicit attempt to cripple the mail system itself as yet another argument against mail-in voting, providing them an excuse to force people to vote in person in a pandemic or not vote at all? It would be a villainous plot straight out of a James Bond film. But that doesn’t mean it’s not real, especially given the current administration. Even if it’s not intentional, the combined effect of both acts of bad faith would certainly be convenient for deeply unpopular conservatives whose only chance of holding onto ill-gotten power is to thwart democracy itself.
Democrats would do well to act as if they were facing opponents with the depraved moral instincts of a Bond villain, and think proactively. Any future assistance on legislation to Trump and McConnell over the coming year should be predicated on both saving the Postal Service and ensuring access to mail-in voting across the country. An election in which one side is lulled into complacency about a pandemic and has lots of polling places available, while the other is rightfully concerned for the public good and being crushed by long lines and crowded locations, is no true election at all. It’s a mockery of democracy and cannot be allowed to stand.
Richard L. Hasen, one of the country’s top experts on election law, made a similar argument in his recent “We Cannot Hold an Election Without a Functional Post Office: Trump’s refusal to save the U.S. Postal System is an attack on voting rights.”
“All the plans we have for a safe and legitimate general election in November depend heavily upon the ability to expand vote-by-mail. Yet those plans would be completely upended if the United States Postal Service collapses. . . A shutdown of USPS would be catastrophic for democracy. Even though many states with vote-by-mail allow ballots to be dropped at polling places, vote centers, or in special state boxes for the return of envelopes, those ballots get to voters via the U.S. mail. Voters also get other election materials, including in many states the form that is used to request a vote-by-mail ballot in the first place.”
Trump’s recent appointment of Louis DeJoy, a North Carolina businessman and major Republican donor, as Postmaster General, merely heightens concerns about the future of the U.S.P.S. in November. While in an ideal worldthe postal system could be a public site of further democratization, at the current time, its very ability to function as an essential means of public communication is at risk.
(3) The third challenge before us is communication in the broadest political sense. If elections are an institutional means of communicating citizen candidate and partisan preferences, and the mail is an institutional means of regular and widespread sharing of letters, documents, and increasingly consumer goods, the public sphere in general is the primary means whereby publics are both formed and informed, where interests can be articulated and programs of political opposition can be formulated, disseminated, and mobilized. Yet Trump both threatens and poisons the public sphere, demonizing independent news media as “fake news”; using the White House press office, Fox News, and his own Twitter account to disseminate disinformation and paranoid conspiracy theories on a daily basis; signaling approval to far-right vigilante groups; and planting the seeds of dissension, and even armed resistance, in the event that he might lose the election.
Richard L. Hasen has recently expanded on the frightening implications of this in his “What Happens in November if One Side Doesn’t Accept the Election Results? How the coronavirus could contribute to a 2020 election meltdown”:
“Vote-by-mail ballots are more likely to be rejected than other ballots because of problems like signature mismatches. We also know that rejection rates for signature mismatches can disproportionately affect minority voters. Some states do not alert a voter whose ballot has been rejected about the rejection, failing to give the voter a chance to cure something like a purported signature mismatch. Signature matching is also a notoriously subjective endeavor. Even before the coronavirus pandemic, the issue has led to litigation over whether those voters are being unconstitutionally denied their right to vote. . . And in the 11 states without online voter registration, even registering to vote in time for the election may pose a great challenge if government offices are closed or maintaining only limited hours. . . .
Further, some jurisdictions are going to be overwhelmed with the number of absentee ballots to process, whether because of the lack of scanners or workers. There will be stories of notoriously bad election administration in November because we have some election offices in the country with poor leadership and inadequate resources—problems that will only be exacerbated by the stress of conducting an election under these conditions. Those stories will fit into a “stolen election” narrative, one likely egged on by Russians or others seeking to sow discord and undermine faith in our election. This will be on top of potential virus-related misinformation aimed at particular communities warning them against showing up to vote or telling them to vote at the wrong place or time.
Even worse, the need to process millions more absentee ballots without adequate funds and training means November’s election results could well be delayed. This is especially worrying in Detroit and Philadelphia because both cities have a history of poor election administration, and both of their states, Michigan and Pennsylvania, have recently adopted no-excuse absentee balloting—and both states play a critical role in the outcome of the Electoral College that determines the presidency. Delay is going to lead to cries of fraud, when in fact good election administration—especially when dealing with absentee ballots—takes time.
What if Trump is ahead in Michigan and Pennsylvania on election night and he declares victory, but after millions of absentee ballots are processed a week or so later Biden is declared the winner in those states and wins the election? Will Republicans believe Trump if he claimed the later count was the result of fraud, despite all evidence to the contrary?”
Barbara McQuade outlines this scenario even more grimly: :
“That a president would defy the results of an election has long been unthinkable; it is now, if not an actual possibility, at the very least something Trump’s supporters joke about. As the former Arkansas Governor Mike Huckabee tweeted, President Trump “will be eligible for a 3rd term due to the illegal attempts by Comey, Dems, and media , et al attempting to oust him as @POTUS so that’s why I was named to head up the 2024 re-election.” A good troll though it may have been, Huckabee is not the first person to suggest that Trump might not leave when his presidency ends.
In May, the faith leader Jerry Falwell Jr. tweeted an apparent reference to the completed investigation of Special Counsel Robert Mueller into Russian election interference. “I now support reparations,” he wrote. “Trump should have 2 yrs added to his 1st term as pay back for time stolen by this corrupt failed coup.” Trump retweeted Falwell’s post.
One of Trump’s former confidants, Michael Cohen, has suggested that Trump won’t leave. In his congressional testimony before heading to prison, Trump’s former attorney said, “Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, there will never be a peaceful transition of power.”
Trump himself has joked about staying in office beyond his term, and even for life. In December, Trump told a crowd at a Pennsylvania rally that he will leave office in “five years, nine years, 13 years, 17 years, 21 years, 25 years, 29 years …” He added that he was joking to drive the media “totally crazy.” Just a few days earlier, Trump had alluded to his critics in a speech, “A lot of them say, ‘You know he’s not leaving’ … So now we have to start thinking about that because it’s not a bad idea.” This is how propaganda works. Say something outrageous often enough and soon it no longer sounds shocking. . .
Although Trump’s remaining in office seems unlikely, a more frightening—and plausible—scenario would be if his defeat inspired extremist supporters to engage in violence. One could imagine a world in which Trump is defeated in the 2020 election, and he immediately begins tweeting that the election was rigged. Or consider the possibility, albeit remote, that a second-term Trump is removed from office through impeachment, and rails about his ouster as a coup. His message would be amplified by right-wing media. If his grievances hit home with even a few people inclined toward violence, deadly acts of violence, or even terrorist attacks against the new administration, could result.”
This is not idle speculation by a couple of frightened experts. For similar scenarios have been proposed by a wide range of commentators over the past two years (see here, here, here, here, here, and here). Indeed, Joe Biden was asked about this very scenario at a CNN Town Hall in late February 2020. Here is the exchange:
Moderator: “What is your plan if President Trump loses the election but refuses to concede based on allegations by his supporters of irregularities and he refuses to step down as President based on those allegations?”
Biden: “It’s a serious question, a serious concern. Did you ever think in your lifetime, no matter how young or old you are, any person would be able to ask that question and be taken seriously? No, I’m not joking. Our democracy is at risk. Four years of this guy . . . So the answer is: the way he has treated the military, the way he has dismissed the intelligence community, the way he has absolutely undercut the FBI, the way he has gone after all these (agencies), I have no worry about him being escorted out of the White House.”
Biden expressed confidence in the ability of law enforcement to uphold the law. One can only hope he is right. But the fact that he regards this as a serious question is a sign of the grave situation we face. And, indeed, as the commentators quoted above indicate, Trump’s actual departure from the White House is one thing. An equally important question is whether some significant number of the millions of his angry core supporters—the same ones now besieging state houses in Michigan, Virginia, and throughout the country, some bearing military-grade assault rifles and Nazi banners—would abide by this change of power.
The challenge before us
Beyond attention to electoral and postal institutions, then, we must attend to the ways that the public sphere can be manipulated to prevent a peaceful transfer of power. The challenge, in short, is ideological: can we work, with all of those concerned about the future of democracy in the U.S., to issue the appropriate warnings, to defend the integrity of the election, and to vigorously defend the value of free and fair democratic elections themselves? Or will the U.S. go the way of Orban’s Hungary or Erdogan’s Turkey?
A few caveats are in order by way of conclusion.
The first is that democracy in the U.S. has long been both fragile and flawed; its existence is a hard-won achievement of centuries of struggles that are still being waged, for democratization is a never-ending process; and its revitalization will involve much more than a free and fair election in November.
The second is bracing: even a free and fair election in November will not guarantee the future of democracy in the U.S. For it is possible that Trump could win the election, at least in the Electoral College, and thus lay claim to another four years of maladministration. The consequences of such a victory would be devastating, for public health, public policy, and public life itself. It is not clear that democracy could survive, nor that many of us could survive. And so it must be frankly acknowledged that this paper on securing the election addresses only one dimension of the current vulnerability of democracy. There is a second dimension which is equally important: the challenge of unifying and mobilizing political opposition to assure a decisive Democratic victory in November, defeating Trump, re-taking the Senate, and making headway in state legislatures across the country. This is a very tall order under any circumstances, and especially under the conditions of pandemic.
And so while the election must be secured, it also must be won.
A free and fair election is thus necessary, but not sufficient.
All the same, if there is not a free and fair election in November, it is certain that Trump will be ensured another four years. And we can be confident that he will use those four years to further obstruct electoral fairness, cement the power of his party and his family, poison public discourse, and leave constitutional democracy in shambles and perhaps even beyond repair.
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