There Are Many Different Ways to Lose Our Democracy

Posted in: Constitutional Law

[Note to readers: The publication date for this column is April 1. As much as I appreciate April Fools’ Day merriment, and although many of the Republicans’ strategies that I am going to describe in this column seem like they ought to be (very unfunny) jokes, I guarantee that this column is dead serious. Unfortunately.]

Until a few years ago, it was nearly impossible to imagine that this country’s foundations supporting representative democracy, the rule of law, and a constitutional republic were built on frighteningly shifting sands. Yes, there were never-ending partisan battles against voter suppression as well as concerns over the Electoral College, the imbalances of the Senate, and gerrymandering of Congress and state legislatures. Things were hardly perfect, especially considering the ongoing effects of racism in our political culture, but back then, the question was how imperfect we would allow our constitutional system to remain, not whether it would cease to exist in any meaningful form.

The last five years, however, have seen a growing willingness of Republicans to break all norms and change political rules opportunistically. Our naïve belief that there are “institutional safeguards,” which caused many of us to imagine that somehow the Constitution is self-preserving, has been exposed as little more than wishful thinking. There has been a sudden realization that the political system of the United States, as was true with other democratic experiments throughout history, might have become so corrupt that we could soon be living in a one-party autocracy. The country might at that point be led by a strong man or perhaps by an internally fractious minority party that still maintains the appearances of free elections, but meaningful democracy would be a thing of the past.

In my Verdict column on January 21 of this year, I offered a muted celebration of the fact that our system did not entirely break down after the 2020 election. Having warned for years that Donald Trump would try to ignore the results of the election, stay in office, and then change the political system to install himself and his Republican enablers permanently in power, I was delighted to be wrong—or, having been right about so much, at least to have been wrong in predicting that Trump would never leave office.

The title of that column, however, was “Trump’s Coup Failed, But He Gave Republicans a Road Map to Ending Constitutional Democracy … Soon.” It was not story of triumph but of doom delayed, as we still seem to be driving inexorably toward the end of the democratic road. What does the path from here to there look like, and how far along are we on what would be a one-way trip? In my January column, I laid out various elements of a Republican strategy that could lead to the end of anything resembling government of the people, by the people, and for the people. Those elements were based mostly on what Trump almost succeeded in doing before and especially after November 3.

Now more than two months on, I want to continue this series of columns by checking in on where things stand. In doing so, I will provide a list of some of the strategies that could easily allow Republicans to do in future elections what Trump could not do in 2020: ignore the will of the American people and install a government that would be beyond the reach of any political or legal limitations.

It Only Takes One: This Is Not a Road Map or Even Dominoes

The most surprising and distressing feature of America’s democratic fragility is that the system could fall apart if only one big thing goes wrong. It would not require a complicated set of interactions that all have to go wrong together, nor a series of left and right turns on a map, nor even a simpler sequence of events like a single act causing a set of dominoes to fall one after the other. There are many necessary conditions for a constitutional republic to continue to operate, and because each is necessary, losing any of them would lead to the whole system crashing down.

In short, defenders of the rule of law have to win every battle, whereas those who wish to rule illegitimately have to win only once. Fortunately, each element in 2020 and 2021 just barely held firm, which is why we are here today. Unfortunately, as I wrote in January, not only are those elements all quite weak, but in Trump’s stumbling way, he shined a spotlight on each weak element and made it obvious how easy it would be to destroy them the next time.

Again, even if everything else goes right, one thing going wrong can destroy our system. That means that defenders of democracy must be undefeated against all attacks, because losing one battle is as bad as losing all of them.

The Pardon Power: Unbridled Discretion and Legal Immunity

Earlier this week, for example, I published the third of a three-part series of columns about the president’s constitutional power to grant pardons and reprieves. I pointed out that, although this seems like a backburner issue during a pandemic and an economic crisis, limiting the president’s pardon power is actually an essential part of protecting our constitutional system.

To elaborate on this, consider that Trump famously claimed that he could pardon himself as president. The vast majority of constitutional experts said that this was nonsense, but there were dissenters even to that seemingly obvious conclusion. And because even that majority included numerous people who said that there were no other limitations on the pardon power (except, perhaps, that a president could not pardon crimes until they happen), it is not at all clear that courts would have ruled that the pardon power has any limits at all. Moreover, the courts could have said that they are not even permitted to rule on the question, thus allowing a president to abuse the pardon power without interference from the judiciary.

In Trump’s case, most of the discussion involved whether he would pardon himself if he lost, so that he could not be prosecuted once he became a private citizen. But what if he had committed a federal offense that allowed him to stay in office? Even if (in the spirit of “everything else goes right for democracy”) the Office of Legal Counsel’s memorandum against prosecuting a sitting president had been at long last reversed, and even if the Justice Department had not been fully corrupted (that “everything going right” thing again), what if prosecutors were actually willing to charge the president? Oops. Self-pardon!

Even if courts disallowed self-pardoning, and even if the president were willing to abide by their ruling, what if he were to pardon other people who commit crimes on his behalf? I am talking about the kinds of crimes that would make colluding with Russian agents’ assistance in an election look quaint. What about direct violations of federal law, both open and notorious, that would swing an election? The president then pardons his associates, and it is all perfectly legal.

I should concede here that I am blurring the “everything else goes right” framing a bit, because of course the background possibility in all of these cases is that Congress could impeach and convict the president, removing him from office. But the experiences of two impeachment trials of Trump have demonstrated amply that no Republican president need ever fear that outcome, at least so long as the Democrats do not have something approaching 67 votes in the Senate.

The broader point, however, is that a president who is allowed to issue pardons to anyone, for any federal crime, even when those crimes are directly in the service of undermining the Constitution, is already a tyrant. A president who can violate election laws and, if caught, pardon the perpetrators is a president who can keep trying until he steals the election.

Would this work for a Democratic president, for example Joe Biden? In theory, yes, but the fact is that the Republican-stacked Supreme Court would be much more likely to intervene against him, and even though there is a great deal of party loyalty among Democrats, most of them would find open lawlessness of this sort to be out of bounds. A party that hesitates to change the filibuster rules to allow itself to govern by majority vote (even in a counter-majoritarian institution like the Senate) is not a party that would line up in lockstep behind Biden-driven lawlessness.

The Electoral College Can Be Hacked

If somehow pardons were appropriately limited, what else could go wrong? My January 21 column predicted that Republicans would soon figure out how to use the anti-democracy features in the Constitution to guarantee that their future candidates could be awarded electoral votes even in states that the Republicans lost.

And that is already happening. In Arizona, Republicans are considering the blunt approach, which is simply to say that the legislature can decide on its own who wins the state’s electoral votes. Republicans in other states are trying to be a bit more clever, setting up means by which the legislature can seize control of the vote-counting process and thus exclude enough votes to allow Republican candidates to win every time. A third approach is to say that the state legislature will only intervene if there is evidence of “irregularities”—which the legislature can always miraculously find.

Is this legal? States have the power to determine their own rules to choose electors for president, so the blunt approach is clearly constitutional (but weirdly so, because it is so blatantly undemocratic). And although the Electoral Count Act purports to require that the states determine their electors by Election Day, it is only necessary for the legislature to have a procedure in place by that time, not an outcome. Otherwise, we would never have to wait for states to count (and sometimes recount) their votes. Just as we waited for, say, the Wayne County (Michigan) canvassers to determine whether to certify their results in 2020, a state could say that its process involves having the legislature weigh in on the results and adjust them as required by their new law. The state would not have to do anything new after election day, because it could have set up the process in advance to guarantee the outcome.

Speaking of the Wayne County drama, we should note that it was a single person—one of the two Republicans on the relevant certifying body—who prevented the votes of Detroit’s largely Black population from being disallowed. Had that lone person not done the right thing last Fall, Michigan’s strongly pro-Biden outcome could have been erased. Trump would still have needed to flip two additional swing states, but future elections might not provide as much breathing room as Biden enjoyed in 2020.

Notably, Republicans are also trying to make sure that no local or state officials stand in their way in future elections. The otherwise hyperpartisan Georgia Secretary of State who stood up for the law in 2020 is being challenged by someone who would have happily “found” the 11,780 votes that Trump demanded in his notorious phone call in early January. Local election boards are also changing their personnel and procedures to allow Democratic votes to be thrown out in future elections.

As above, I should note that there is a background assumption here, which is that state-level gerrymandering will allow Republicans to hold their bicameral majorities in the swing states that Biden won last year. Again, however, there is no prospect at all for that to change, so that hardly seems like a risky assumption.

Given all of this, Republicans are in the process of making it impossible for a Democrat to win the electoral votes in Arizona, Georgia, and the states that Trump carried in 2020. That means that the Democrats can only win if they continue to hold the governorships in key states, specifically Michigan, Pennsylvania, and Wisconsin. A loss in one of those states makes the electoral math impossible for any Democrat.

And even if the Democrats were able to keep open a sliver of a possibility of winning under existing laws in those states, the Supreme Court could (and several justices seem positively eager to) reinterpret the Constitution to allow state legislatures alone to change how electoral votes are counted. That would be a constitutional travesty, but the Court might go there.

All of this further assumes that Democrats can successfully fight against voter suppression efforts in key states, because it would not even be necessary for Republicans to throw out votes if they could prevent Democratic voters from registering or voting in the first place.

Finally, lest we forget, and as I also noted in my January column, Congress has arrogated to itself the ability to throw out states’ electors by majority votes in both houses. If the Republicans take back both the House and Senate, the only thing stopping them from handing the presidency to the Republican candidate on a future January 6—even without an armed insurrection—would be their own consciences, plus a willingness to make themselves pariahs (or worse) within their party. We should not bet on them doing the right thing.

There are actually a number of other vulnerabilities that Republicans are eagerly exploiting to guarantee in advance that they will win future presidential elections, but this column is already long enough. Suffice it to say that there are many, many ways in which the election system can be seized to thwart the will of the people.

In the end, then, we could have a future president pardon his way to what would otherwise look like a legitimate reelection victory. (That is, he could make sure that the votes actually cast gave him the win.) If he failed to do that, Republicans at the state level could suppress enough votes for their man to win. If they failed to do that, they could set up their electoral processes such that they could invalidate enough votes to win. If they failed to do that, they could have the legislature award the electoral votes to the Republican. If they failed to do that, congressional Republicans in Washington could refuse to recognize key states’ electors.

And if they failed to do all of that, there is still the possibility of another storming of the Capitol. Just because it failed the first time does not mean that they will not try again, or that they will continue to fail.

At the beginning of this column, I invoked the metaphor of a map. The near-death experience in 2020-21 with Trump, I argued, gives Republican a path to follow that would allow them to turn themselves into a permanent, minority ruling party. But a road map suggests that people must find that road and carefully follow steps on the path to its end.

The road map metaphor, then, is actually not quite apt here. Instead, the better metaphor might be to say that Republicans can blow up the system by pulling any number of triggers—hair triggers on weapons that we have long thought were not even cocked. Just one blast would be enough to turn us from an imperfect constitutional democracy into an autocracy.

It is a daunting challenge to foil all of these threats at the same time. But if we fail, there is no going back.

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