The Capitol attack was a warning: the United States democracy is at risk. To fix the system before the midterms, two steps have to be enacted before the 2022 midterms.
Academics rarely agree about the big issues, and generally hesitate to enter the political fray by signing collective public statements. Yet more than 100 leading scholars of democracy endorsed a remarkable Statement of Concern, which I also signed, warning about grave threats to American democracy and the deterioration of U.S. elections.
“We urge members of Congress to do whatever is necessary – including suspending the filibuster – in order to pass national voting and election administration standards that both guarantee the vote to all Americans equally, and prevent state legislatures from manipulating the rules in order to manufacture the result they want. Our democracy is fundamentally at stake. History will judge what we do at this moment.”
Why the alarm? Is this warranted?
On 14 December 2020, after courts litigated challenges and all 50 states certified the count, the electoral college formally declared the defeat of Donald Trump. Most assumed that the peaceful and orderly transition in power would follow, following historical traditions for over 200 years. Instead, the world was shocked to witness the violent Capitol insurrection on 6 January, triggering five deaths, 140 people injured and more than 400 arrests.
But even this unprecedented attack on Congress was not the end of the assault on the unwritten norms and practices of American democracy and the legitimacy of Joe Biden’s win.
For months, the big lie claiming a “stolen election” has continued to be spread relentlessly by the former president, his close advisers, Republican lawmakers and rightwing sympathizers on cable news and social media. According to many polls, two-thirds of Republicans continue to believe that Biden’s victory was fraudulent. In Arizona, the Republican party hired a private firm to conduct an audit of the certified vote count.
It is reported that Trump is obsessed about the use of audits to overturn results in other close states like Pennsylvania, Wisconsin and Michigan, believing that he will be returned to office in August. In state houses, Republicans have long expressed concern about the risks of electoral fraud and the need to tighten registration procedures and balloting facilities. The Brennan Center reports that since January this year, 22 new laws restricting voting rights have been enacted in 14 states. For the 2021 legislative session, almost 400 bills restricting voting rights have been tabled in 48 states.
Challenges to democracy are increasing worldwide. The long spread of “third-wave” democracies across the globe from the mid-1970s stalled around 2005 – since when scholars have noted accumulating indicators of democratic backsliding and rising authoritarianism in many countries.
Contrary to popular commentary, signs of democratic deterioration in America were on the wall well before Trump became president – such as persistent gridlock in U.S. Congress, deepening cultural polarization and the corrupting role of dark money in politics. The backsliding has accelerated during the last four years, with attacks on the news media, risks to the impartiality of the courts, and the weakening role of Congress as an effective check and balance on executive power.
The U.S. electoral system has also long been problematic, notably extreme partisan gerrymandering, the composition of the electoral college, rural over-representation in the Senate, lack of electoral standards as the supreme court rolled back federal oversight of state elections established by the 1965 Voting Rights Act, low turnout and the expansion of misinformation in the media. Since Bush v Gore in 2000, serious challenges to electoral legitimacy, and growing party polarization over the rules of the game, have gradually deepened. The Electoral Integrity Project has used expert surveys to evaluate the quality of national elections around the world since 2012 and found that U.S. elections have persistently been graded poorly by EIP experts, scoring next to last among the world’s liberal democracies, and ranking about 45th out of 166 nations worldwide.
Unfortunately, Republican federal and state lawmakers have no rational incentives to abandon Trump and the big lie about electoral fraud, even if they recognize the falsehood. Most incumbents are nominated through party primaries and hold safe districts due to partisan gerrymandering, so Republican chances of re-election depend on throwing red meat to the Maga base, not building a broader coalition among moderate independents.
What is to be done?
To fix the system, two steps are essential. Both need to be enacted before the November 2022 midterm elections, when the Democrats are likely to lose control of the Senate, if history is any guide.
First, the Senate filibuster has to go as a relic of a bygone era. Worldwide, about 41 national legislatures have some supermajority rules but in nearly all cases these are only used, quite sensibly, for constitutional amendments, not for routine legislation (like establishing the 6 January commission). The rule benefits the opposition party seeking gridlock in DC and stymies effective electoral reform.
The Senate rules are not fixed in stone and they can be amended by their own members through various procedural initiatives. The benefits of the filibuster rule for non-constitutional amendments are doubtful and the harm for gridlock has never been more serious. The Senate needs to act urgently to change its procedural rules to protect American democracy.
Second, the U.S. Senate needs to pass the HR1 For the People Act. This offers a comprehensive package of moderate reforms designed to protect voting rights in U.S. elections, reduce partisan gerrymandering, make campaign spending more transparent and tighten ethics in public life. Getting rid of extreme partisan gerrymandering and ultra-safe districts is vital to incentivize House candidates to appeal broadly to all citizens well beyond their base. The Senate also needs to pass HR4, the John Lewis Voting Rights Advancement Act, restoring provisions of the 1965 Voting Rights Act requiring certain states to pre-clear changes to their voting laws with the federal government, which had been struck down earlier by the U.S. Supreme Court in Shelby County v Holder.
A series of other reforms are highly desirable in the long term but impractical right now.
One is adopting non-partisan blanket primaries, as in Washington and California, where the two candidates with the highest vote share get to run in the general election, irrespective of their party affiliation. This increases the incentive for all candidates to reach out to a broader constituency than the party base, so it is likely to encourage the election of more moderate lawmakers in Congress.
Another is designed to break the stranglehold on two-party winner-take-all competition, ideally by implementing a mixed-member proportional electoral system for the U.S. House, like Germany and New Zealand, with an enlarged number of members, or ranked-choice voting in multimember districts.
Yet another reform is adopting a compulsory retirement age for members of Congress, like the minimum age requirement, to increase incumbency turnover, limit gerontocracy and expand representation for the younger generation of leaders, women and minorities.
These are all worthy matters for future debate about long-term constitutional and legal reforms to American elections, a generational project. But, in the short term, the most urgent and practical priorities right now facing the Senate majority leader, Senator Chuck Schumer, means wrangling the U.S. Senate to abolish the filibuster rule and then to pass some version of HR 1 and HR 4. The laws would still face major challenges through the courts. But if they don’t get enacted, American democracy is at risk.
The sixth of January was the warning bell. The stress test of the 2022 midterm elections is fast approaching. Other countries have seen democratic breakdown. This is not alarmism. Alas, it’s real.
Senаtоr Jеff Mеrklеy
Portions originally published on The Guardian as American democracy is at risk from Trump and the Republicans. What can be done?