The Rationalist Papers (3): Is democracy really in danger?

This is the most consequential election of our lifetimes. But we hear that before every election. Is this really the election that could end democracy in America, or is that just hyperbole?

In this post I’ll show in what ways this election could threaten democracy, why it matters, and what you should do about it.

Just a reminder: these Rationalist Papers posts are for the group I call the deciders: conservatives, moderates, undecided, and third-party voters considering their choices in the 2020 US Presidential election.

A sober look at the potential threat to democracy

This is America. For decades, we’ve seen how voting works: we go to the polls, they count the votes, and then we hear on the news who won the election — usually the very same night. Sure, in 2000 things dragged on a while because of the hanging chad ballots in Florida, but we ended up with a new president thanks to a decision by the Supreme Court and everything was fine.

In recent memory — in fact, since 1876 — there has always been a clear decision on who won the election. That’s what we’ve come to expect. Won’t it be the same, maybe with a few variations, this year?

To understand why this isn’t the case in 2020, you need to know a little about the nuts and bolts of the US electoral system, which isn’t actually as automatic as we think. What we have is not, in actuality, a single national election. We conduct 51 local elections for president, one in each state and one in the District of Columbia. Here’s how that actually works:

1. States count ballots from people voting in person and by mail.
2. State legislatures or governors certify the winner in each state.
3. The state designates a slate of “electors” to vote for that winner. The number of electors is equal to number of representatives and senators that state has in Congress. For example, Montana gets three electors and California gets 55. (In Nebraska and Maine, the delegation of electors can be split, since some of them represent winners of congressional districts.)
4. The electors vote gather in Washington DC as the “electoral college” on December 14; their votes must be received by December 23. Corrected — the electors do not gather, they vote from their own states.
5. The Congress counts the votes of electors on January 6.
6. Assuming there is a majority for one candidate (270 electors out of 538 total), that candidate is designated as the President-elect.
7. If there is no majority, then the new House of Representatives meets and casts one vote for President for each state delegation. There can be multiple rounds of voting if no candidate receives a majority of 26 delegations in favor.
8. The new or reelected president is inaugurated on January 20.

Why do the details matter? Because in 2020, both Democrats and Republicans are gearing up for electoral challenges to the winners in the states. I recommend an excellent article just published in The New Yorker by the lawyer Jeffrey Toobin, “The Legal Fight Awaiting Us After the Election,” which describes those challenges in detail.

For example, Republicans are sending 50,000 poll watchers to 15 states to monitor voting locations. From Toobin’s article:

[Republican National Committe lawyer Justin Riemer] told me, “The Democrats have had an unfair advantage for years because of the consent decree, and we’re just trying to have a fair playing field. Our people will be well trained. They are not there to intimidate, they are not there to suppress the vote. They are there to get out the lawful vote.” But the President has suggested that the Republican poll watchers will not necessarily be so restrained. Sean Hannity, in the interview during the Democratic Convention, asked him, “Are you going to have an ability to monitor, to avoid fraud and cross-check whether or not these are registered voters—whether or not there’s been identification to know that it’s a real vote from a real American?” Trump answered, “We’re going to have everything. We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, U.S. Attorneys, and we’re going to have everybody, and attorney generals.” 

The second challenge is that with the pandemic, about a third of ballots could be cast by mail — a much higher proportion than is typical. And based on surveys, Democrats are far more likely to vote by mail than Republicans. Since mail ballots are counted later, this could result in a “blue shift,” in which election night results based on in-person voting appear to show Trump winning in states where Biden takes the lead after mail-in ballots are counted.

Republicans lawyers will be insisting that all mail ballots in states that are close be scrutinized carefully for fraud — despite the fact that voter fraud is exceedingly rare. This will vastly slow down the tally. As Toobin relates, in a close Democratic party primary vote conducted on June 23 this year, it took two months to settle the results because of the painstaking process of counting mail votes and squabbles over which ones were legitimate, had matching signatures, arrived by the deadline, and so on. The number of mail-in votes this year will be so large, and the stakes so high, that such counts could easily extend past the December 23 deadline, causing confusion.

That confusion is the source of the third challenge, which is based on who decides which electors cast their votes in the Electoral College (steps 2 and 3 in the list of steps above). In a carefully researched piece in The Atlantic, “The Election That Could Break America,” Barton Gellman shares this chilling revelation:

Trump may test this. According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires. . . .

“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” the [Trump campaign legal] adviser said. Democrats, he added, have exposed themselves to this stratagem by creating the conditions for a lengthy overtime. . . .

In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.

“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.”

In case you are wondering, if the disputes mean that enough states don’t send any electors at all, and there are not enough for a majority, the House of Representatives has 26 state delegations that are controlled by Republicans. So the Republicans would probably prevail.

And consider that if any of these legal challenges end up in the Supreme Court, that court will likely have six of nine justices picked by Republicans, including whoever Trump nominates to fill the seat opened up by the death of Ruth Bader Ginsburg.

Would Trump’s campaign actually prod state legislatures to act in lieu of actual voting totals? Last night, in response to a question about the bedrock principle of American Democracy — the peaceful transition from one president to the next — Trump said this:

We’re going to have to see what happens. You know that. I’ve been complaining very strongly about the ballots, and the ballots are a disaster. . . . Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation.”

Here’s the video:

Why does this matter?

I’ve just described what may be a very different presidential election process from any we’ve ever seen in this country. But it’s easy to say “Hey, legal disputes are legal disputes. Elected and other officials will do the best they can to count the ballots, and we’ll have a president. Why shouldn’t the President contest the results and take advantage of the power of the Republican party in state legislatures?”

The problem is that democracy depends on counting all the votes.

If you voted by mail in Pennsylvania or Florida, will your ballot count? Maybe, maybe not. Will your state legislature be setting aside the vote totals and picking the candidate who gets your state’s electoral votes? Could be. If your vote isn’t counted, you don’t get to participate in democracy.

Maybe you don’t care who is elected in 2020. But think a little farther ahead. If a party can block people from voting, fail to count their vote, or invalidate the count altogether based on what the state legislature decides, it is likely to do so in the future. There will be a roadmap for how to do it and a precedent. It might well happen in all future elections. And it could even be Democrats doing it next time.

By allowing lawyers for one party to separate the results of the presidential election from the will of the voters, we remove the ultimate strategy Americans have for reining in abuses of power. We vote. We vote out people who have not upheld our interests. Our voting system is flawed — it doesn’t always elect the person who gets the most votes nationally — but it does function. We have vigorously contested elections. Once those election fail to matter, we lose our ability to have politicians respond to us, and we become subject to whatever they want to do, with no recourse.

So yes, this election matters more, because it may be our last chance to actually maintain democracy in America.

What can you do?

Why would the president be mouthing off now about not committing to the peaceful transfer of power? Could it be because he wants you to give up on voting?

If you have any concern about what you’ve just read, if you want to push back against it, then the only solution is for people to vote in overwhelming numbers for Joe Biden — and to vote in person, if at all possible.

Why?

Because none of this electoral interference will matter if there are so many votes for Biden that Trump’s campaign cannot challenge results based on slow counting of mail votes, or encourage state legislatures to make their own designations.

This matters especially in these states: Texas, Iowa, Georgia, Ohio, North Carolina, Maine, Florida, Nebraska, Arizona, Pennsylvania, Nevada, Wisconsin, Michigan, New Hampshire, Minnesota, Colorado, and Virginia. Those are the states where the election is likely to be close enough that legal challenges and legislature elector decisions could matter.

If you stay home and don’t vote in such a state, it may make the margin closer and encourage challenges.

If you vote third-party, it may make the margin closer and encourage challenges.

If you don’t vote for Biden in this election because he’s not progressive enough for you, you may not ever get a chance to cast a consequential vote for a progressive candidate again.

If you know people in these states who are undecided, staying home, or voting for a third-party candidate, show them this post. If you know someone voting for Trump who you think isn’t quite certain, they may also be interested.

This is not a question of policy. It is a question of preserving democracy, so we all get a chance to actually pick our presidents in the future. If you’ve never voted for a Democrat before, this is the time to do so — to preserve your right to choose the president for the rest of your lifetime.

Feel free to post comments. However, I will delete comments that insult or demean me, other commenters, or groups, or state supposed facts without evidence. Vacuous cheerleading and catcalling is also prohibited; this is not a sporting event. No one persuades anyone by creating a hostile environment.

For the origin of the Rationalist Papers, see this. All Rationalist Papers posts available here.