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26 October, 2021updated 02 Nov 2021 11:25

Is US democracy in its death throes?

Can US democracy survive efforts on multiple fronts to allow the Republican Party to overturn the results of the next presidential election?

By Courtney Fingar, Ben van der Merwe and Sebastian Shehadi

When US President Joe Biden, who won the popular vote by nearly seven million, was sworn into office in January 2021, much of America, and the wider world, breathed a sigh of relief that the tumultuous period preceding the inauguration seemed to be over. Donald Trump’s efforts to interfere with and undermine the result – and to outright overturn the election – had failed.

This moment in time, however, might merely be the calm before the next, even bigger storm. It is increasingly plausible that historians will look back on Biden’s first term as an interlude between coups, one failed and one successful. The danger to democracy, rather than receding, grows larger every day, as safeguards at the local, state and national level that prevented Trump’s plot from succeeding in 2020 are systematically dismantled.

The country came close to having an illegitimate leader clinging to power against the will of voters. The democratic institutions bent but did not, in the end, break. In some cases the firewalls were institutions, laws or norms, in other cases they were individual people — most of which have since been removed.

Republican state electoral officials, in crucial cases, put the interest of election integrity over that of their party and despite the desperate pleas of Trump. So did Vice-President Mike Pence, who accepted the results in Congress while Trump supporters brandished a noose outside the steps of the Capitol and threatened to hang him.

Next time might be different.

In Georgia, as just one example, Secretary of State Brad Raffensperger – who refused Trump’s demand in a now-infamous phone call to “find” the 11,780 votes needed to flip the results of the election – has been stripped of his powers on the state election board. He was replaced by an appointee of the partisan state legislature – part of a widespread effort to remake electoral boards into instruments of GOP-led state legislatures.

Meanwhile, the opponent running against Raffensperger, Congressman Jody Hice, is a proponent of the ‘Big Lie’ that Trump won the election; if victorious, he could be the chief election officer of Georgia for the next elections. A Reuters report found that of the 15 GOP candidates vying for the position of secretary of state in five major swing states, ten of them still question the outcome of the 2020 election.

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Biden may be less than a year into his presidency, but with mid-term elections looming in 2022 the integrity of the next presidential election is already an issue of mounting concern. “The next 12 months are going to be really critical,” Jonathan Wood, lead analyst for the US and Canada at Control Risks, tells Investment Monitor.

The casting of aspersions on electoral integrity, coupled with changes to election laws in a number of crucial swing states and the gerrymandering of Congressional districts, has set the scene for trouble in 2022, when control of Congress is on the line, and 2024 when the next presidential election takes place.

Professor Richard L Hasen, co-director of the Fair Elections and Free Speech Center at the University of California, Irvine, says the events of the past few years have shaken confidence in American democracy and the country is entering a new period of danger ahead of these elections.

Congress has the power to change the Electoral Count Act however it wants, so long as the president signs or is overridden, but if they don’t amend it, then there are a few possible scenarios. Professor David Bateman, Cornell University

“The United States is in a very difficult political moment,” he says. “It has always been my view, at least, that the stability of American democracy was unquestioned, that we would have peaceful transitions of power and votes would be counted and reported accurately. [But] we can no longer afford to ignore the risks that election results could be subverted through illegal means, so that the results do not necessarily reflect the actual winners of the elections.”

As many as 66% of US Republican voters maintain the belief that the last election was rigged in Biden’s favour and Congressional Republicans have demonstrated a willingness to bend towards the conspiracism of their voter base. A month after last year’s election, just 27 GOP members of Congress (12% of the total) had accepted Biden’s victory.

Parroting the phony claims about 2020’s result has now become a requirement for running for office successfully as a Republican, and the party is seeking to purge members who don’t toe the line.

This dynamic coupled with gerrymandered districts means an even more radicalised version of Republicanism is coming to the halls of Congress in 2022 – one that may be all too willing to trample over democratic norms to seize and hold on to power. The new intake of GOP Congressional representatives will make even some of their more wild-eyed predecessors look like moderates – and the consequences could be far-reaching.

“Steve Bannon said, ‘Never let anybody get to your right,’” Reed Galen, co-founder of the Lincoln Project, a political action committee made up of anti-Trump Republicans, told Investment Monitor.

“[Republican officeholders] are all now living with that reality, which is if anybody gets to their right, someone is going to pop up and beat them in a primary, probably without a lot of money or name recognition but on the strength of saying, ‘I am the true MAGA [Make America Great Again] guy, I am the true Donald Trump guy.’ Maybe they will even get Trump’s endorsement.”

With demographic trends not in their favour, and many of their policy positions unpopular, Republicans have settled on a strategy of minority rule – and are succeeding. Democrats have not found a way to mitigate this strategy or to protect voting rights despite holding the presidency and both houses of Congress.

“Remember that the number of self-identified Republicans by party registration is as low as it has ever been,” says Galen. “Republicans are single-handedly holding on to power based on their better use of things like gerrymandering or the Supreme Court and the judiciary. They just play the game better.”

The real ideological battleground is no longer about policy or the rough-and-tumble of politics, however; the quandary currently facing the US is much more existential than that. It is simply: will the country be a functioning democracy in the future or not?

Could the 2024 US presidential election be rigged?

Much hinges on the results of the mid-terms on 8 November 2022, when all 435 seats in the House of Representatives and 34 of the 100 seats in the Senate are up for election. Additionally, 39 state and territorial governorships as well as various local and state offices will also be contested.

A majority of state legislatures are already in Republican hands, and they are being empowered by recent changes to state electoral law that give them greater authority to decertify results they don’t agree with.

“Republican legislatures in 2021 have enacted provisions that transform normal – even exemplary – behaviour into voter fraud [and] this will be used as the basis to overturn free and fair elections,” wrote Marc Elias, a high-profile Democratic lawyer specialising in election law, on his Democracy Docket blog on 25 October.

“To say that voter fraud is vanishingly rare in this country is to overstate its frequency. For decades, the primary reason for spreading the myth of widespread voter fraud has been to justify the enactment of voter suppression laws, to make voting more difficult. The 2020 election, however, created a new, pernicious use for the Republican voter fraud narrative.”

How 2022 plays out will set the scene for the eventual presidential elections and how at-risk they are of being compromised.

“For the 2024 national elections, there are lots of ways of trying to mess with the translation of voters’ votes into the electoral college counting that takes place, but it is possible in 2022, and isolated races, that there could be issues of election integrity,” says Hasen.

“This is something that we see in non-democratic nations or countries that are transitioning to democracy, something we never expected we would have to worry about in the United States.”

There are three potential paths to a stolen election, and thus three reasons to worry.

Scroll to the end of this article to explore the situation in all 50 states using Investment Monitor‘s interactive political risk and voting rights dashboard.

The 12th Amendment

While a sitting president has no constitutional means to directly overturn election results, the US Constitution grants significant powers to Congress in certifying election results. It was these powers that Republicans and pro-Trump insurrectionists sought to leverage on 6 January 2020, when Congress convened to certify the electoral college.

If no presidential candidate receives a majority of electoral votes, the 12th Amendment to the Constitution states that the decision of whom to appoint is left up to the House of Representatives, with state delegations voting as blocs.

The most likely place a coup will happen will be in the states. Professor David Bateman

Although the Republicans did not have overall control of the House in 2020, they did control a majority of state delegations.

The situation will, of course, be different in 2024. Republicans will not control the presidency, an institution whose full weight was thrown behind the attempt to overturn the results of the election in 2020.

Depending on the results of the mid-terms, however, they may control both the House of Representatives and the Senate.

There are three scenarios in which the 12th Amendment could be invoked.

The first is if a third-party candidate wins enough electors to deprive both major parties of an electoral college majority. No third-party candidate has won any electors since 1968, and it is unlikely that a third-party candidate in 2024 would win any states that would otherwise have been won by the Democrats.

The second possibility is that a Democratic-voting state may choose not to send any electors to Congress. This has not happened since secession but is not impossible. State governments are ultimately responsible for choosing electors, and under current state legislation can only choose not to send electors if the election itself can be deemed to have ‘failed’.

If a state government chose to deem an election as ‘failed’ because of unsubstantiated allegations of voter fraud, this would likely run into serious legal obstacles.

The only other possibility is that Congress could refuse to certify the votes of one or more Democratic-voting states.

A recently unearthed memo from one of Trump’s lawyers, John Eastman, shows that the former president’s legal team did indeed consider invoking the 12th Amendment in this way as a means to overturn the results of the 2020 contest.

The plan involved Pence refusing to certify the results of electors from seven different states, leading to neither candidate receiving a majority in the electoral college.

According to investigative journalists Bob Woodward and Robert Costa, Pence did not reject the plan out of hand. Instead, he consulted with former Vice-President Dan Quayle about the constitutionality of the plot.

“Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” Quayle reportedly told Pence. Only after further questioning of Quayle did Pence agree to refuse Trump’s proposal, according to the account.

The Electoral Count Act guards against this by mandating that Congress must certify slates of electors if they were received by the ‘safe harbour date’ (which will be 12 December in 2024).

Congress could vote to repeal the Electoral Count Act, although this would be subject to a presidential veto. Overriding the veto would require a supermajority in both houses, which is an unlikely prospect.

However, the Electoral Count Act does contain an important exception: Congress can refuse to certify results that were not “lawfully certified” or “regularly given”. This would require a simple majority in both houses.

“Congress has the power to change the Electoral Count Act however it wants, so long as the president signs or is overridden, but if they don’t amend it, then there are a few possible scenarios,” David Bateman, associate professor of government at Cornell University, told Investment Monitor.

“If there were two slates that arrived before the safe harbour, Congress would have to decide which to count (in which case the question is, what is the lawful authority of the state) or would count neither.”

This was the tactic proposed to Pence by Trump in the aftermath of the 2020 election, the plan detailed in the leaked memo.

“[Alternatively,] if there was a decision by both congressional chambers that the electors were not ‘lawfully certified’ or ‘regularly given’ then Congress could disregard the electors,” says Bateman.

“Either way, unless there is a pretty clear consensus about this or it doesn’t come close to changing the outcome, you have got a crisis.”

An illegitimate electoral college

The greatest threat to the integrity of the 2024 election, however, may lie outside Washington, DC. “The most likely place a coup will happen will be in the states,” says Bateman.

The US Constitution is explicit that state governments decide which electors to appoint – the fact that all states choose their electors based on the popular vote is a result of state legislation, not constitutional requirements.

There are two ways that states could effectively overturn a Democratic victory in 2024.

The first possibility is that states could choose to discount certain votes, swinging the overall result for the Republicans. States have broad authority to decide how ballots are validated, but these processes are set out in advance of polling day. Several states have sought to alter their processes in ways that could give greater freedom for state politicians to invalidate votes.

Cheryl Koos, professor emerita of history at California State University, Los Angeles, describes recently passed laws in Georgia and Arizona as “particularly worrisome”. These laws, she tells Investment Monitor, “allow for partisan control of vote counting and introduce the possibility of legitimate state and local voting results being overturned because they did not produce the desired outcome of a particular political party”.

“To put it most simply, the real core issue you have is that every state determines its own voting rule,” says Maximilian Hess, head of political risk at Hawthorn Advisors.

New York, Massachusetts, Texas, all have different voting laws about where, when and how votes can be collected, processed and reviewed. In a number of states where Trump won, or where Republicans control a majority in the state legislature, there has been a big move to tighten the regulations of voting, whether that be enhancing ID rules, limiting mail-in voting or limiting groups’ abilities to go out and do what is known as ‘vote harvesting’ [which is helping groups of people enable absentee votes].”

A more radical option for states would be to discount the popular vote entirely, and instead allow the legislature to appoint electors directly. All states have legislation that stipulates that electors are to be chosen by popular vote. For any state to revise this prior to an election would be practically unthinkable.

Since federal law requires that electors must be chosen on election day, there is little chance that states could vote to revise this legislation after the fact. However, state laws typically allow legislatures to choose the electors if voters have failed to make a choice on election day – a scenario that doesn’t include delays relating to vote counting, but could include circumstances in which the actual casting of votes was seriously compromised.

The US National Task Force on Election Crises has called on Congress to clearly specify what counts as an election “failure”, because current legislation “provides no definition or constraints, thus creating the potential for misunderstanding or even abuse”.

Suppression and gerrymandering

Whether or not the Republican Party attempts to overturn the next presidential election in such a dramatic fashion as in 2020, a more subtle and insidious form of anti-democratic manoeuvring has been gathering steam for years.

“With these voter rights issues and voting reforms that are playing out at the state level, it is going to take a couple years to play out,” warns Wood of Control Risks. “States have just received detailed census data that they are going to use to gerrymander their districts.” The 2022 election is the first to take place following redistricting based on the 2020 census.

Gerrymandering (manipulating the boundaries of an electoral constituency to benefit one party over another) has been a key aspect of the strategy to limit Democrats’ demographic advantages, along with laws aimed at suppressing the votes of certain communities, which have been implemented in important swing states. The census has provided both a motivation and a method for continuing these tactics.

In a number of states where Trump won, or where Republicans control a majority in the state legislature, there has been a big move to tighten the regulations of voting. Maximilian Hess, Hawthorn Advisors

“If we look at the data, I think we reveal the motivation of the current gerrymandering and voter bills that are in debate in state houses today,” says Seth Radwell, former CEO of The Proactiv Company and author of the recently published American Schism. “It is pretty clear from the recent census data that we are becoming even more so a multicultural society in America. For the first time, the proportion of white Americans has declined.”

“[Republicans] understand very keenly that demographics aren’t working in their favour,” agrees Koos. “These laws subvert the will of the people and are similar to ones used by so-called ‘illiberal democracies’ such as Hungary and other authoritarians to shape the electorate to keep them in power and thwart majorities.”

Galen suggests the Republican Party has given up on true democracy, having realised it can’t win in a fair fight.

“It is not even that [Republicans] lost the marketplace of ideas, it is that they don’t care to participate in it because at this point it is all about power. All of this is reducing the number of people who are likely to participate, increasing the confusion for those who do want to participate, to understand how and when and where they can vote – it is about scaring people.”

“Since 6 January, at the state level and specifically in places such as Georgia, Florida, Texas, Iowa, conservative legislators and conservative governors have systematically gone and made it more difficult for all those to participate, but specifically for voters of colour and those who are less likely to be able to vote in traditional ways,” he adds.

US states like Texas and Arizona are “laboratories of an American version of electoral autocracy”, according to Dr Ruth Ben-Ghiat, professor of history and Italian studies at New York University and an expert on authoritarianism.

“Today’s autocrats don’t suppress elections but manipulate them. In Texas there are also bills proposed by GOP lawmakers that would make voting a threatening experience, through the expansion of powers of poll watchers, volunteers who may be heavily armed. In Arizona, patently irregular actions – like carting ballots across state lines, to Montana – are also part of the playbook,” she says.

In addition to suppressing votes and rigging districts, voter intimidation tactics are increasingly being deployed. Intimidation, after all, is easier than fiddling with certification, points out Galen. “Most election judges [the person who runs an individual precinct in a neighbourhood or a poll location] tend to be little old ladies who do it as part of their civic duty. They take the role very seriously. Now they might be afraid to do that job [because of worries about Covid and harassment] and you are going to have a bunch of goons showing up saying ‘I am an election observer, you can’t kick me out’,” he says.

How likely are these scenarios?

“Gaming out these scenarios can be interesting, but there is no reason to overthink it,” says Cornell’s Bateman.

“No law or constitution is perfectly self-enforcing. If the people who these are supposed to constrain act contrary to them, and the people supposed to enforce them are willing to ignore the violation, and if you can multiply that across the thick web of officials (and laws and courts binding those officials) needed to overturn enough states’ elections, then you can steal the presidential election.”

He continues: “No doubt revising the laws to make both the discretion and the coordination easier will facilitate stealing an election and having it validated as ‘legal’ or ‘constitutional’, but at some point, people have to choose how they will act, and while they would like legal cover that is useful only insofar as it is persuasive to legal and political actors and a broad public.

“If it is only cover you are looking for, the problem isn’t a legal one but a political one: do you subvert the election or not? That is what is most worrisome about Republican interest in revising the laws or the loathsome Eastman memo – not that they could find some plausible legal cover or some clever loophole, but that they are so nakedly looking for any cover at all.

“The will, it seems, is there. The only remaining question is whether there is enough of it and whether it can be sufficiently coordinated.”

A long history of defining who is American

While the wider threats facing the country’s political stability are specific to the current era, issues of voter suppression and gerrymandering are far from new in the US. In fact, they can be traced right back to the nation’s founding, says Radwell.

“The new voting laws in places like Texas are very much the continuation of a trend we have seen for centuries,” he notes. “The story of our country has been a battle to define ‘we the people’, which used to only include rich, white men.”

This battle led to the American Civil War that successfully won the vote for African Americans. Shortly after, however, the southern US states found news ways to disenfranchise black voters, Radwell goes on to explain.

“This included a whole bunch of de jure regulations, like poll taxes, as well as mass voter intimidation from violent supremacist society like the Ku Klux Klan,” he says. “In short, these issues have swung like a pendulum throughout US history. We gave African Americans the right to vote and then took it away – and it wasn’t properly addressed again until the 1960s with the Voting Rights Act.”

Over the past eight years, the pendulum once again began to swing backwards following the weakening of the Voting Rights Act by the Supreme Court in 2013 – the significance of which cannot be understated. The case, called Shelby County v. Holder, saw the court remove protections for vulnerable demographics by decreasing the federal government’s ability to intervene in changes to electoral law at a state level, including certain localities with a history of discrimination against minority voters (mainly in the American south).

Looking at the historical perspective tracks with an argument made by some more optimistic observers who argue there has never been a perfect union or a golden era of American democracy, and voting rights have always had to be fought for.

The question of the moment is how far the pendulum swings before the fight back begins in earnest.

Is the death of American democracy inevitable?

The ailments afflicting the US’s democratic system are chronic, severe, numerous – and potentially fatal. If American democracy is on its deathbed, can it be saved? Or is it already too late?

“The simple answer – which doesn’t mean it is easy – is that the Democrats have to maintain and grow their majority in the House and Senate next year, and then Biden, if he chooses to run for re-election, needs to be re-elected, and that will buy us a little bit of breathing room,” says Galen.

The longer-term prospects depend on the extent to which enough people realise that it is dying, recognise the causes, and want to rescue it.

All of this is reducing the number of people who are likely to participate, increasing the confusion for those who do want to participate, to understand how and when and where they can vote – it is about scaring people. Reed Galen, the Lincoln Project

“At some point the American people are either going to say ‘well, that was a good run, 250 years of democracy’. Or they are going to say ‘screw all this, we are not putting up with this anymore’,” says Galen.

The latter has not yet happened. The public is distracted and divided. People are drip-fed disinformation on social media, attention spans are short, and fast news cycles don’t allow for sober reflection or introspection. The nature of today’s media lends itself to echo chambers and tribalism. Facts don’t cut through the noise easily. It is possible that the US will sleepwalk into a democratic death spiral without the average American realising what is happening.

Elias puts it starkly: “I have no doubt that we are only one, maybe two, elections from a constitutional crisis. My fear is that those who support democracy are not as prepared or as focused as those who seek to subvert it,” he wrote in a post on 13 October.

Democratic leaders, in varying degrees, are aware of the enormity of the threat but have not found a way to effectively counter it. “For the Democrats it is really about trying to change the agenda to one that talks about [voting rights] as a national issue,” says Hess of Hawthorn Advisors.

However, failure to pass federal voting rights legislation has caused much hand-wringing as the clock ticks towards 2022. Without abolishing the filibuster that allows Republicans to block legislation despite being the minority in the Senate – a feat that requires the agreement of so-far obstinate Senators Kyrsten Sinema of Arizona and Joe Manchin of West Virginia – such legislation is unlikely to come to fruition.

At the state level, Democrats are not expanding voting rights as quickly as Republicans are restricting them, argues Elias.

“Democrats are incapable and unwilling to fight the fight that we need to fight today,” Galen says. “Republicans never miss an opportunity to utilise the power they possess. They all work together, and they are relentless. Democrats play chess and Republicans eat the pieces – it is not the same game.”

However, it will take much more than political guile or legislative action to prevent a breakdown in the US’s democratic system.

Something fundamental broke in 2020 in the American civic consciousness that will not be easily repaired. The mind-bending irony of Trump and his followers yelling about a ‘stolen’ election while looking for every possible way to actually steal it; the horror of insurrectionists violently storming the seat of government; the continued propagating of the lie that Trump won the election, cynically indulged by the Republican Party – all of them did their damage, perhaps irrevocably.

Viewing the government as illegitimate is the first step down the road to sedition, domestic terrorism or potentially even civil war: if those who fancy themselves as patriots come to believe they are fighting to restore the ‘real’ government and to stop tyranny, then anything goes. The ends justify the means. This played out in real time on 6 January. Doom-mongering is not always helpful, but in a country where right-wing militias run rampant and private citizens are armed to the teeth, and where the ranks of law enforcement agencies and several levels of government have been infiltrated by insurrectionists, neo-fascists and QAnon conspiracy theorists, it is nearly impossible to overstate the risks.

There is also a scenario in which US democracy lives on – but in name only.

“We talk about the end of American democracy, but Argentina is a democracy, right? Brazil is a democracy, Hungary is a democracy,” says Galen. “The end of democracy doesn’t mean the end of elections. It just means the end of free and fair elections.”

Explore the current status of voting rights across the US in the interactive chart below, as well as which states are most likely to be the focus of any attempt to overturn the 2024 presidential election. Interactive by Josh Rayman.

To read more on Investment Monitor about the attempts to prevent the Democrats from winning the 2024 election, click here.

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