Members-Only Article
Here is a topic I don’t see enough discussion of. We hear a lot today (for good reason) that voting rights and the protection of democracy is the issue. Social spending, climate, immigration, infrastructure … they’re all important but they all rest on having a working democracy where voting determines who runs the government. All true. But the laws we’re actually talking about, the ones that are written and ready to pass (if Sinema and Manchin would let them come to a vote) or even in concept don’t actually address the main issue that has everyone’s attention. They’re critical. Don’t get me wrong. But they don’t actually address the catalog of situations in which you hold a vote, count the votes and then simply set the votes aside if you don’t like the result.
The For the People Act, now in a revised version, is the main democracy protection vehicle being pushed in this Congress. It has three buckets of rules. The first places limits on partisan gerrymandering. The second creates a floor for access to voting – voting by mail, voting early, rules for voting, etc. The third is campaign finance reform. To me the first is far and away the most critical. Others see it differently.
But when we talk about January 6th being a preview or a trial run we’re mainly not talking about those three buckets of rules. Gerrymandering comes into play. But in an indirect way. The big issue we’re facing comes in a different set of buckets. The first and biggest are new laws that allow or simply a new willingness on the part of state legislatures or state elected officials to set aside the results of an election they don’t like. That was the real game back in January. The insurrection was mostly aimed at buying a bit more time to get those GOP state legislatures to come around. In some states this is new laws. In most it’s a new willingness to consider such a thing. In both it’s tied to a new pet theory among SCOTUS conservatives that state legislatures have a unique and unencumbered power to determine the results of elections – even if their state constitutions say otherwise.
Then there’s the related issue of state boards of canvassers and local election officials being flooded with Big Lie supporters who are doing so largely to be in charge when we have a replay of 2020. These aren’t supposed to election-determining positions. Those people are just supposed to say yes these are the votes from this precinct; yes, the seals are in place. But as we saw last year the big push was to get those people simply to reject ballots or totals that didn’t go their way. It didn’t work but the composition of those boards is now very different. In some cases the rules governing them are too.
Finally, there’s Congress itself. In 2024 maybe a GOP majority just doesn’t accept state electors who add up to a Biden win. That’s not their role. They’re not allowed to do that. As with Pence it’s a ministerial function. Are these the votes from California? Yes. Done. That’s all there is to do.
But who is enforcing these rules? In theory, Congress … which just broke those rules in our hypothetical. Is the Supreme Court going to intervene and overrule Congress – a debatable move in terms of separation of powers even if the current Supreme Court had any interest in doing so?
I realize that I may be bumming you out. Maybe a lot. My point isn’t to do that or say there’s no hope. I don’t believe that, though I’m not entirely sure programmatically how you prevent this. My point is that the big dangers aren’t really addressed by passing laws, at least not the laws anyone is now talking about passing.
