Three Reforms to Protect Democracy from Election Denialism
The acute crisis confronting American democracy right now is caused by a movement within one of the nation’s two major political parties. This movement is appropriately called “election denialism”—meaning that its adherents are willing to deny the lawfully determined outcome of an election if their candidate is the one who lost. The election denialist movement within the Republican Party, led by former president Donald Trump, is seeking to gain control over the institutions and procedures that determine the outcome of future elections. If election denialists prevail in this effort at taking control, self-government—whether one calls it “republicanism” or “democracy”—will no longer be possible. Ultimately, self-government depends on the lawfully determined winners of elections taking office based on those electoral results, and election denialism strikes at the heart of that most basic premise.
The effort to protect the Republic from election denialism should not be viewed as a partisan endeavor. Liz Cheney, among others, is correct when she exclaims that safeguarding the Constitution and its commitment to a “republican form of government” will require Democrats, Republicans, and independents of good will to join forces. As our contribution to the NCC Guardrails of Democracy project explained, democracy protection requires reforms along three dimensions. First, and most immediately, there needs to be revisions to the rules that govern the declaration of winners in presidential elections. Second, there needs to be structural reforms to the nation’s electoral processes to prevent election denialists winning races even when a majority of the electorate would prefer other candidates. Third, there needs to be carefully tailored adjustments, consistent with the First Amendment, that deter election denialists from spreading intentional falsehoods about election results. What follows is an overview of these three points.
Electoral Count Act Reform. The good news is that a bipartisan group of Senators, led by Susan Collins and Joe Manchin, have developed a revision to the dangerously antiquated Electoral Count Act of 1887, which was exploited for partisan purposes on January 6, 2021 (among other recent presidential elections). Indeed, the exploitation of this outdated and convoluted statute by election denialist allies of Trump is what set the stage for the insurrectionary riot at the Capitol that delayed the counting of the electoral votes in the 2020 election. The Collins-Manchin bill, while not perfect (what legislative endeavor ever is?), would fix the flaws in the 1887 law and significantly reduce the risk of election denialists negating the lawful winner of a future presidential election. The Collins-Manchin bill does this by requiring Congress to accept whatever the courts determine to be the true outcome of the presidential election in each state according to the applicable law when the ballots are cast. Even if election denialist officials in a state attempt to subvert the true result, Congress must abide by what the courts say and not whatever any election denialists do. The prospects for the Collins-Manchin bill passing Congress are good, given the level of bipartisan support it already has received in the Senate. But until the bill is enacted in the law, presidential elections remain dangerously vulnerable to subversion at the hands of election denialists. Thus, doing whatever it takes to get the Collins-Manchin bill across the legislative finish line must remain the most urgent electoral priority.
Securing the Will of Electoral Majorities. Just because an election denialist candidate wins a partisan primary and then goes on to win the general election, it does not mean that the election denialist is the candidate most preferred by a majority of the electorate. This point is not well-understood, but it needs to be to avoid election denialists holding office even when a majority of
Article from Reason.com