Rick Hasen Urges Congress to Focus on Election Subversion

From Rick’s latest in the Washington Post:

Congress has the power to put up barriers to election theft, but the window is quickly closing. That’s because Democrats may soon lose control of one or both Houses of Congress, and Republicans, fearful of Trump or complicit in his plans, cannot be expected to take the lead on deterring election subversion.

Election integrity should be a nonpartisan issue, but like everything else it’s been polarized, and reforms seem unlikely to pass the current Senate despite a razor-thin Democratic majority, given Republican intransigence — unless Democrats blow up the filibuster so a simple majority can decide the issue.

So what should Democrats do? Setting aside the filibuster for this one issue ultimately is the right way to go, because election subversion poses the gravest threat imaginable to American democracy. But we should recognize that there are dangers in this route. Voting reform passed with only Democratic support may persuade Republicans that efforts to avoid subverting election results are themselves meant to rig the outcome. So it’s important for Democrats to reach out to Republicans, and for responsible Republicans to join Democrats in this cause, which is sensible and nonpartisan….

We also learned in 2020 about potential choke points within some states in the process of certifying presidential election results. Procedures need to be streamlined so that political hacks charged with ceremonial roles in certifying results don’t insert themselves into the process, as almost happened in Michigan in 2020. (Republicans later replaced the courageous Republican canvassing board member in that state who voted to affirm Biden’s victory.) The rules that worked in the 1880s no longer make sense for our deeply divided modern democracy.

Congress could provide for meaningful federal court oversight when there is reason to believe election officials have tampered with vote counts. At present, federal courts play only a limited role in assuring fair vote counts, and state court processes might not be sufficient everywhere to assure such fairness.

Congress could also increase the criminal penalties that apply to election tampering, whether done by election officials or others. These activities are already illegal, but the threat of serious jail time should hang over those who would not report a fair vote count. In 2020, election officials like Georgia Secretary of State Brad Raffensperger stood up to Trump’s demand that he “find” over 11,000 votes to flip the state’s results from Biden. Someone with less integrity next time might still be deterred by a sufficiently severe criminal penalty.

Republicans have so far blocked all election reform that Democrats have proposed: Witness Senate Republicans’ filibustering a few months ago of the For the People Act, designed to counter a wave of ballot restrictions in Republican-led states. But much of Democrats’ efforts have been focused not on election subversion per se, but with issues related to voting rights or campaign financing. Legislation like the John Lewis Voting Rights Advancement Act, which would restore some aspects of the Voting Rights Act struck down by the conservative Supreme Court, raise important and serious issues and deserve to be passed. But considering voting rights issues separately from anti-subversion issues increases the chance for bipartisan compromise on the latter.

Some Republicans might well be enlisted in the cause — including the few Republican House members and Senators who voted either to impeach Trump or to convict him after the insurrection in Washington on Jan 6. The importance of election integrity knows no party, so a bipartisan bill would be the ideal.

But if Republicans won’t act, that shouldn’t stop Democrats from moving ahead on this issue. If protecting elections isn’t worth setting the filibuster aside for — if only temporarily — it’s hard to know what would be.

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