- Acceptance of Electoral Results: Despite his clear defeat in 2020, President Trump stridently refuses to accept the results and still claims the elections were rigged. He began a series of over sixty legal suits — all of which have been turned down by the courts — to overturn state results and encouraged officials in Republican-controlled state to reverse their state outcomes. Republican leaders were initially supportive of Trump’s attempt to overturn election results. While most now agree that Joe Biden won the election, those same leaders continue, even now, to claim vague “irregularities” in the elections that warrant more restrictive voting laws. The handful of Republicans who speak out clearly against the ex-president face almost certain electoral defeat in their primaries.
- Unambiguous Rejection of Violence: While most Republicans vaguely disavow violence in the abstract, few have unambiguously condemned the January 6 insurrection.
- Refusal to Break Definitively with Extremist Groups.
In an important follow-up article to their book How Democracies Die — which I’ve reviewed here — Daniel Ziblatt and Steven Levitsky argue that the greatest threat to American democracy is the possibility of a stolen presidential election in 2024. Based on the antidemocratic behavior above, they contend, the Republican Party is now willing to overthrow the election. They fear that by 2024 the party may have the ability to do so.
Constitutional Weaknesses
There are two great weaknesses in the American Constitution that abet the current Republican threat to our democracy.
Dependence on Forbearance
The first weakness is that
our constitutional system relies heavily on forbearance. Whether it is the filibuster, funding the government, impeachment, or judicial nominations, our system of checks and balances works when politicians on both sides of the aisle deploy their institutional prerogatives with restraint. In other words, they do not engage in constitutional hardball, … deploy[ing] the letter of the law in ways that subvert the spirit of the law.
A dangerous example of non-forbearance occurred after the death of Supreme Court Justice Antonin Scalia in February 2016. In accordance with the Constitution, President Barack Obama, a Democrat, nominated the moderate Merrick Garland to replace Scalia, but Senate Majority Leader Mitch McConnell, a Republican, refused to allow the Senate even to consider the nomination. As a result, the succeeding president, Donald Trump, a Republican, nominated the conservative Neil Gorsuch, whom the Republican Senate quickly confirmed. Although it had never previously happened in American history, McConnell’s action was completely legal in that it was not prohibited by the Constitution. McConnell, however, played “hardball,” using his power without restraint to steal a Supreme Court seat from the Democrats, thus subverting the clear intent of the Constitution.
More egregiously, McConnell has also made it clear that if Republicans gain control of the Senate next year, as Majority Leader he would not allow the Senate to consider a Biden appointment to the Court in 2024.
Minority Rule
The second great weakness is that in order to protect the minority from overreach by the majority, several important constitutional provisions, for instance, the Bill of Rights, protect the rights of the minority. But there are less often considered provisions that allow for minority obstruction or even minority rule of government. For instance, the Constitution provides each state, regardless of population, two Senators, giving small, mostly rural states disproportionate representation in the Senate. Currently, Republicans predominate in rural areas while Democrats predominate in states with dense urban areas. As a result, the current fifty Republicans represent forty million fewer voters than do the fifty Democrats.
A similar provision prevails in the Electoral College. Republicans have won the popular vote for president only once since 1988; a Republican president, however, has governed the country for nearly half of that time. As a result, the last three justices on the Supreme Court were nominated by a president chosen by a minority of the country and confirmed by Senate majorities that represented the will of only a minority of American voters.
There are also a number Supreme Court decisions that allow the minority party to govern. The Court has, for instance, ruled political gerrymandering legal. This gives state governments the authority to create voting districts that can greatly advantage their own party. Those same legislatures can also gerrymander their own state legislative districts to facilitate their own party’s ongoing dominance over the state government.
Legal Infrastructure to Steal Elections
Republican-controlled states have passed laws to give their partisan legislatures (or their appointees) the power to interfere with and conceivably overturn elections.
The approved measures allow Republican-controlled state legislatures or election boards to sideline or override local election administrations in Democratic strongholds. This would allow state legislatures or their appointees to meddle in local decision- making, purge voter rolls, and manipulate the number and location of polling places. [Ziblatt and Levitsky].
Local election officials traditionally have the power to throw out even large numbers of ballots for minor technicalities (eg an oval not being completely penciled in or a typo or spelling mistake in the mail-in ballot form). These new laws now give partisan officials the authority to make those decisions and throw out ballots, for instance, in Democratic strongholds. Laws have been passed to give the state legislatures or their appointees the authority to suspend local officials and to sue or prosecute them for their mistakes. There is no evidence of significant misbehavior by election officials, but threats of expensive suits or legal punishment could force officials to make partisan decisions or abandon their jobs altogether.
Republican state legislatures have also passed voter suppression measures aimed specifically at ways of voting more often used by the poor, minorities, or immigrant communities, including:
- limiting or eliminating ballot drop boxes,
- reducing the number of polling places,
- limiting mail-in balloting,
- reducing early voting opportunities,
- and even, famously, in Georgia, prohibiting the offering of food and water to voters waiting in line.
While the legislature-controlled power over elections is indeed ominous, there is disagreement about how effective the other voter suppression measures would be.
Much, perhaps all, of this legal infrastructure is constitutional, but it represents anti-democratic hardball at its worst.
Undermining trust in the electoral system
Since the presidential election, many Republicans have refused to unambiguously reject the “Big Lie,” the allegations that the election was stolen. While this will not have a legal effect on Biden’s presidency, it is seriously undermining confidence in our elections process. Perhaps worse, congressional Republican candidates have recently been declaring in advance of the election the intention to sue in the event they lose, casting doubt on the electoral system itself. So far no one in the party leadership has condemned such behavior. Republican Party strategy seems based on the assumption that our electoral system itself cannot be trusted.
Free and fair elections are a cornerstone of any democracy; perhaps even more important is confidence in those free and fair election. Voter suppression threatens the freedom of elections and the Republican Party is now preparing to threaten electoral fairness by giving its own partisans power over elections. The Republican leadership has joined the party’s widely acknowledged leader, former President Trump, in battering confidence in the electoral system quite successfully. A recent poll confirmed many others:
66 percent of Republicans continue to insist that “the election was rigged and stolen from Trump,” while just 18 percent believe “Joe Biden won fair and square.” Twenty-eight percent of independent voters also said they think Trump was the rightful winner of the 2020 election,
Modern democracies have generally not been overthrown by sudden and obvious coups. Rather they occur gradually, death by a thousand cuts.
