My New LA Times Oped: “Election law can’t protect democracy if our representatives are lawless”

I have written this oped for the LA Times. A snippet:

It took the civic virtue of about a dozen Republicans who had some control over the election process to resist Trump’s and his supporters’ incessant entreaties to overturn the will of the people. The president tried to get Georgia’s secretary of state to manufacture 11,780 Trump votes. He pushed state and local canvassing boards to reject election results. He and his allies brought frivolous lawsuits. As Barton Gellman recently explained in the Atlantic, had those virtuous Republicans not resisted Trump’s efforts, we could have had a full-on constitutional crisis, with Congress enabled to vote for sham alternative slates of electors.

These events demonstrate the limits of law in preventing democratic decay. As questions surfaced — could Rudy Giuliani’s claims lead to Pennsylvania’s election results being overturned? What happens if a Republican legislature tries to appoint alternative electors but the Democratic governor objects? Does the vice president have the power to block the presentation of electoral college votes to Congress? — I sought answers taking the law seriously and literally, and I reassured worried citizens that election law offered protections for a free and fair contest.

But the events of Jan. 6 show that at some point we may move outside the realm of law and into the realm of brute power politics and even violence. Had the vice president been killed or the speaker of the House held hostage, niceties about federal jurisdiction, how to handle competing slates of electors, and the precise meaning of the Electoral Count Act would have gone out the window. The actions of the Republicans who rejected valid electoral college votes make me think that if the GOP had held a House majority, they would have ignored the rules and law.

When people fail to obey the law, the law obviously cannot act as a constraint on their behavior. I and others have proposed the legal steps that Congress and states should take to make election law clearer and to remove all forms of discretion to manipulate election results, but these proposals are meaningless if political actors do not abide by legal rules

If the problem is no longer the shape of the law, but lawlessness itself, our democratic system is in serious jeopardy. The Republican Party is going to have to figure out how to expel the Trumpian elements of the party, something very difficult to do when they make up a majority of Republicans in the House and in many state legislatures as well. Pressure coming from the business community and from society at large will help, but it may not be enough.

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