Protecting Democracy

Table of Contents

  1. Through Legislation
    1. General
    2. Fixing the Electoral Count Act of 1887
  2. Through the Courts
  3. Making Voting Easier
    1. Automatic Voter Registration (AVR)
    2. Early Voting
    3. National Election Holiday
    4. Same Day Voter Registration
    5. Voting by Mail
    6. More Polling Places
    7. Polling Places Open Longer
    8. Simple, Clear, Standardized Ballots
    9. Voting by Phone?
Through Legislation
  • Six Principles for Federal Legislation to Combat Election Subversion, Protect Democracy
    • Paper ballot requirements
      • Future efforts to subvert election outcomes will likely involve creating doubt and uncertainty about the actual count of the popular vote in a jurisdiction.
      • Congress should require that, in federal elections, all voters must cast their ballots in paper form.
    • Chain of custody protections for ballots, other election records, and election equipment
      • Once voters cast a paper ballot, those ballots must be preserved throughout the tabulation and certification processes. Federal law already requires that ballots be retained for 22 months, but specifies no standards for how they should be stored and monitored throughout that period. 
      • Congress should direct relevant agencies to promulgate more specific regulations governing how ballots, other election records, and election equipment should be handled, and should also prohibit reckless actions by election officials that endanger the preservation or security of records and equipment.
    • Judicial review of the vote-counting process
      • Several states have passed laws that shift responsibility for counting ballots and certifying elections in the hands of highly partisan officials. This increases the likelihood that these officials may seek to use their control of the vote-counting process to improperly influence the outcome of an election, for instance by baselessly discarding certain ballots. Congress should ensure that election administration decisions, as well as decisions about ballot-handling, are explicitly subject to federal judicial scrutiny, for example by creating a statutory right to have one’s vote properly counted.
    • Preventing partisan takeovers of election administration
      • In several states, laws have been proposed or enacted that would make it easier for state legislators and other partisan actors to take control over election administration from local election officials, which would then allow them to more easily manipulate or subvert the results. 
      • Congress should prohibit the removal of local election officials absent good cause, such as substantial neglect or malfeasance.
    • Protections for election workers
      • Election officials and poll workers play a crucial role in the infrastructure of our democracy, but they are currently under attack. In 2020, and continuing into 2021, election officials have faced unprecedented threats, including death threats, because of the false allegations that the 2020 election was “rigged.” In addition, states are passing harsh new laws to penalize even inadvertent errors and mistakes by election officials and poll workers. Congress should reaffirm that intimidation of election workers is unlawful and strengthen protections for them.
    • Heightened penalties for election manipulation or subversion
      • The 2020 election did not turn into a full-blown crisis in large part because local and state election officials refused to bow to pressure from President Trump and others to subvert the results. However, voters cannot necessarily rely on similar forbearance in future elections,
      • Federal law already prohibits individuals, including election officials, from manipulating or subverting election results, but Congress should increase penalties for violations of those provisions to deter future attempts at subversion.
  • How Democrats can neutralize the biggest threat to democracy, Jennifer Rubin WaPo
    • Democrats, in their efforts to pass legislation that would protect voting rights, have yet to address the biggest threat voters now face: the blatant attempt by state Republicans to override the will of the voters by taking control of election administration away from local officials and handing it to partisans.
    • The nonpartisan Protect Democracy has released a list of critical reforms that Democrats should include in their compromise legislation coming together in the Senate.
    • Protect Democracy’s proposals have two overarching benefits: They address the most potent threat to democracy, and they are so reasonable that Sen. Joe Manchin III (D-W.Va.) may find Republicans’ opposition as ridiculous and unacceptable as their opposition to a bipartisan Jan. 6 commission.
    • In addition to Protect Democracy’s six suggestions, defense of democratic elections requires one additional step: the prosecution of the former president and his accomplices. The losing Republican president sought to pressure Georgia Secretary of State Brad Raffensperger to “find” new votes; to persuade Michigan lawmakers to throw the state’s electoral votes to him; to cajole the vice president to violate his oath and refuse to accede to the electoral college results; and to pressure Justice Department officials (with threats to replace them) to declare the election fraudulent.
    • If we do not intend to punish him for all that, new laws are useless. We need both the legal tools and the will to use them in defense of democratic elections. Only by prosecuting blatant attempts to overthrow our elections can we avert future coup attempts. The ball is in Attorney General Merrick Garland’s court.
Fixing the Electoral Count Act of 1887
  • Disputed Election of 1876
      • Democrat Samuel J. Tilden won 184 electoral votes (one shy of the majority needed to win the election) to Rutherford B. Hayes’s 165. Electoral votes of three states (Florida, Louisiana, and South Carolina) were in doubt.
      • Congress created an Electoral Commission, which by early March 1877 had resolved all the disputed electoral votes in favor of Hayes, giving him a 185–184 electoral college victory.
  • The Electoral Count Act of 1887
    • To prevent disputed elections like that of 1876, Congress passed the Electoral Count Act of 1887, which elaborated the procedures set out in the Constitution for counting electoral votes.
  • The Congressional Research Service explains the procedures in
    • Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress  CRS
  • But the Electoral Count Act of 1887 is full of holes.
    • The 1887 Law Putting American Democracy at Risk NYT
      • The law itself is a morass of archaic and confusing language. One especially baffling sentence in Section 15 — which lays out what is meant to happen when Congress counts the votes on Jan. 6 — is 275 words long and contains 21 commas and two semicolons.
      • Few have studied the Electoral Count Act more obsessively than Matthew Seligman, a fellow at Yale Law School.
      • In an exhaustive 100-page paper, he walked through nearly every combination of scenarios for how the law could be abused by partisans bent on stretching its boundaries to the max. And what he discovered shocked him.
        • Disputed Presidential Elections and the Collapse of Constitutional Norms  SSRN
      • He found, for instance, that in nine of the 34 presidential elections since 1887, “the losing party could have reversed the results of the presidential election and the party that won legitimately would have been powerless to stop it.”
    • A leading historian of U.S. democracy issues an urgent warning, Greg Sargent, WaPo
      • “It’s become a lot easier to envision that in the last month,” Alexander Keyssar, the leading historian of U.S. democracy, told me. “I find this to be very worrisome — very disturbing.”
      • This is what Keyssar sees as “very disturbing.” In a future close election, what is to stop a Republican-controlled Senate and House from refusing to count a victorious Democratic presidential candidate’s electors from numerous close states?
      • In that scenario, one or more friendly GOP state legislatures might send alternate electors to Congress, which it might count. That didn’t happen this time, but Trump and many Republicans called for it to happen, and at least one legislature wavered.
      • Who’s to say it won’t happen in a future scenario where one or more states are decided by a few hundred votes, making it easier to claim the true voting outcome cannot be known, justifying alternate electors?
  • On July 20, 2022, a bipartisan group of 16 Senators introduced the Electoral Count Reform Act (ECRA).
    • Electoral Count Reform and Presidential Transition Improvement Act of 2022 (S.4573)
  • The bill that could make it harder to overturn an election Jul 2022  Vox
    • The first section is the Electoral Count Reform Act, which would do the following:
      • Specify that the vice president’s role is purely ceremonial:
        • Although Pence refused to follow Trump’s plan, the bill would ensure that no future vice president would have any leeway to try to execute a similar proposal. It clarifies that the vice president “does not have any power to solely determine, accept, reject, or otherwise adjudicate disputes over electors.”
      • Increase the number of lawmakers required to register objections to a state’s results:
        • Currently, just one senator and one representative need to file an objection for it to receive a vote in both chambers. The legislation would increase this threshold to one-fifth of members in both the House and the Senate, respectively. This is intended to ensure that any objections are backed by a broader swath of lawmakers.
      • Designate the governor as the only person who can submit a state’s electors:
        • To prevent states from trying to submit competing slates of electors, the legislation notes the governor of a state is the only person able to designate the final results sent to Congress. This is intended to address a scenario in which different government officials try to push different slates: if a state’s secretary of state attempted to submit a different outcome than the governor, for example. In 2020, some Republican leaders in different states sought to offer up alternate slates of electors that declared Trump the winner.
      • Clarifies law to ensure that state lawmakers can’t overturn a state’s popular vote:
        • Because of how ambiguous the language is in the current law, Trump had previously argued that it gives state legislatures the room to override a state’s popular vote if they supported a different candidate. The bill tries to close a loophole that could be interpreted as giving them that power.
    • The second section is the Presidential Transition Improvement Act, which would guarantee transition funding to both candidates in the event that there’s uncertainty about the election.
      • After the 2020 election, there were members of different federal agencies who declined to provide Biden and his new administration with transition resources because of the unfounded claims Trump had raised about the election outcome. This legislation would require federal agencies to provide resources to both candidates in the event that there were questions about who won an election.
  • The Electoral Count Act must be fixed. A new proposal doesn’t go far enough. Aug 2022 Laurence H. Tribe, Erwin Chemerinsky and Dennis Aftergut WaPo
    • Flaws
      • Governor as “conclusive” certifying authority.
        • The proposal addresses 2020’s “fake elector” scheme by identifying the state’s governor as the sole official with power to certify the electoral slate and making clear that any slate not certified by the governor is void. But the proposal creates the potential for chaos when it states that a governor’s certification is “conclusive,” and then, in seeming contradiction, provides for judicial review and congressional objections. A governor’s certification helps, but to deal with the danger of rogue governors, such certification should be clearly subject to challenge if it undermines the people’s vote.
      • Period for judicial review.
        • The six-day period provided for judicial review of disputes over certification is so short as to make meaningful review a mirage. That problem can be easily addressed by having Congress push the date for final state certification of electors — the “safe harbor” date — from mid- to late-December and have the electoral college meet closer to the Jan. 6 date on which the certified votes are formally counted in Congress.
      • Number of necessary objectors.
        • Under the 1887 law, it takes only one objector in the House and one in the Senate to bring the counting process to a halt and require congressional deliberation. The proposal moves the threshold from a single objector in each chamber to 20 percent. But recall that 139 Republican House members, nearly one-third, objected to certifying Joe Biden’s election. Twenty percent is not enough to avoid needless debate and should be increased to at least 33 percent.
      • Basis for objections.
        • Whatever the necessary percentage, the proposal also falls short in allowing members of Congress to object on the basis that a state elector’s vote is not “regularly given,” a phrase carried over from the 1887 law. What it means for a vote to be “irregularly” given is not defined and remains mysterious. At the very least, Congress must scrap any objection mechanism that allows “election-denying” members, however numerous, to cause politically motivated confusion.
      • Role of vice president.
        • Because the Constitution assigns the vice president, presiding over the joint meeting of Congress, a purely ceremonial role, the proposal specifies that the vice president has no authority to “solely determine, accept, reject, or otherwise adjudicate or resolve disputes” over electors. But this language curiously fails to exclude an imagined authority by a rogue vice president to “delay” certification. Delay was, after all, Trump’s final unlawful pitch to his vice president, Mike Pence.
      • Reason for postponing election day.
        • Under the proposal, only “extraordinary and catastrophic” events will allow a state to extend election day. This leaves too much latitude to state officials. There should at least be an illustrative list of examples such as hurricanes or cyberattacks.
      • Timing of changes in state law.
        • The biggest potential loophole might be the seemingly innocuous provision that “the laws of the State enacted prior to election day” are decisive when it comes to the legality of a state’s certification of electors.
        • This is a well-intended effort to prevent any state legislature from changing the rules after voting concludes — exactly what Trump, his lawyers and their allies sought to do by meeting with state legislators after the election was over. But as drafted, the bill’s apparent intent would be easy to circumvent. An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote. Eliminating that way of defying the people’s will is imperative.
  • The ECA reform bill has serious problems. Here’s how to fix them.  Jennifer Rubin WaPo
    • Norman Eisen outlined four significant changes to the bill.
      • First, the proposal specifies that states would only be able to delay an election due to “extraordinary and catastrophic events.” Eisen argues that language is open to abuse and must be tightened to “avoid manipulation by the election denying officials now running to take control of the electoral process.” (There are dozens of candidates around the country running for governor, attorney general or secretary of state who would fall into this category.)
      • Second, the bill proposes a six-day window to resolve legal disputes over a state’s election result, but this is plainly insufficient. If courts are to render a dispositive verdict on the validity of electors, they would need more time (even with expedited appeal to the Supreme Court).
      • Third, the proposal does nothing to clarify what grounds a member of Congress can object to electoral votes. It states they may do so only if the electors are not “lawfully certified” or “regularly given.” These phrases are still thoroughly vague and could lead to the same sort of shenanigans Republicans attempted when they raised spurious objections to the 2020 electors.
      • Fourth, there are other confusing or contradictory aspects of the rules governing when members can object to electors. Eisen explains, for example, that the bill still refers to the electoral slates as “purported certificates,” which re-injects the same uncertainly that Trump and John Eastman sought to use to challenge certificates in 2020.
    • Other election gurus argue the reform bill’s proposed threshold for objecting to electoral votes is too low. The current statute requires one member from each chamber to object, whereas the reform bill would raise that to 20 percent of each chamber. Given how many MAGA lawmakers now sit in Congress, it’s far better to set the bar at 35 or 40 percent rather than 20.
    • Other scholars have pointed to a fundamental inconsistency with one of the ECA reforms. The proposal seeks to deem the governors’ certification as “conclusive,” but then provides for a federal court review, also intended to create finality. This is followed by the process for members of Congress to raise objections. So who has the last say? Governors, the courts or Congress?
    • And then there are those alarmed by the possibility that a clever state legislature can still change its election rules after voting takes place if it puts in place a “trigger” that it can activate at will to change the votes. As law professors Laurence H. Tribe, Erwin Chemerinsky and Dennis Aftergut recently explained in an op-ed for The Post, “An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote. Eliminating that way of defying the people’s will is imperative.”

View Voting Rights Legislation

Through the Courts
  • The GOP should think twice before it tries to mess with elections, Jennifer Rubin WaPo
    • In addition to a slew of efforts to impair access to the ballot, Republicans throughout the country are attempting to shift control of elections away from local authorities or nonpartisan officials and toward partisan GOP operatives. But they should think twice before proceeding with such tactics; they might be venturing into some dangerous territory.
    • This sort of election rigging is difficult to combat at the federal level, even if Democrats manage to pass voting reforms protecting access to the ballot or paper audit trails. Nevertheless, legal barriers exist that might deter election rigging or a shift in control of elections from nonpartisan to partisan control.
    • For starters, it is worth remembering that it is illegal under state and federal law to change vote outcomes.
    • In addition, federal law says that any person who “knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process” has committed a felony. It also makes it a crime for a “person acting under color of law” to “willfully fail or refuse to tabulate, count, and report” legal votes. In other words, simply putting control of elections in the hands of partisan Republicans does not mean they can flip election results at will.
    • However, the potential to disrupt and discredit elections is great. And in the case of federal elections, some state legislatures might seek to certify their own slate of electors claiming the voters’ choice was invalidated by fraud.
    • There are multiple ways to try to head off these efforts.
      • First, the Justice Department should prepare to enforce federal laws, which in some cases may entail criminal prosecution of state officials who fix elections. The department can certainly deploy voting-rights lawyers to observe elections and receive complaints from poll officials and voters. 
      • Second, the 2020 presidential election showed that revision of the Electoral Count Act of 1887 — the legislation that came out of the disputed 1876 presidential election — is essential to close loopholes and avenues for mischief that the MAGA crowd tried to exploit. Among the required changes: Clarify that the vice president’s role in revealing the electoral college votes is purely ceremonial; require a supermajority to challenge electoral votes; and clarify that state legislatures cannot replace popular vote results with their own slate of electors.
      • Third, pro-democracy advocates must mount an effective campaign to educate voters. Forget denouncing the “big lie” that the election was stolen, for now. A more effective campaign may be to convince voters to prevent politicians from reelecting themselves or messing with elections. The reason for putting elections in nonpartisan hands is precisely to prevent those with temporary control of the levers of power from keeping themselves in office. That basic message is more salient than ever: Do not let politicians take away your vote. On that fundamental proposition, even some Republicans might block measures designed to make it easier to steal elections.
  • The Justice Department is suing Georgia. Don’t expect Garland to end there, Joyce White Vance WaPo
    • On Friday, Attorney General Merrick Garland delivered on his promise to use all his statutory authority to protect the right to vote: He announced he was suing the state of Georgia for enacting a law he said the legislature passed to deny Black people that right.
    • United States v. Georgia is a claim under Section 2 of the Voting Rights Act, which prohibits states from adopting practices that deny or interfere with the rights of U.S. citizens to vote because of their race or color. 
    • Now, voters in Georgia are getting soaked, and the only tool the DOJ has to protect them is Section 2, a remedy that Ginsburg noted was weaker than Section 5 because faulty laws could remain in place for years, affecting minority voters in multiple election cycles.
    • Garland has taken all this into account in United States v. Georgia. Here are five things to know about the lawsuit:
  • Our democracy may depend on judges, Jennifer Rubin WaPo
    • Judges in more than 60 cases dismissed disgraced former president Donald Trump’s attempts to overthrow an election he lost by a significant margin.
    • Now, judges are systematically dealing with the aftermath of the Jan. 6 attack. They are holding lawyers accountable for making spurious claims that helped ignite the armed insurrection.
    • In other contexts, we see judges denounce Jan. 6 defendants for their role in a violent uprising.
    • In Arizona, a judge has played another critical role in upholding the rule of law and democratic elections, ordering the state’s Republican-led Senate on Monday to produce records from its phony audit of the 2020 election in Maricopa County. 
    • While this is a state law, federal law also requires officials to maintain custody of election documents. The Justice Department recently issued a warning that “the obligation to retain and preserve election records remains intact regardless of who has physical possession of those records.” 
    • Most states have stiff laws against vote tampering and falsification. Foes of democratic elections should be forewarned that courts are unlikely to shed their oaths and become accomplices in the downfall of democracy.
Making Voting Easier
Automatic Voter Registration (AVR)
  • Automatic Voter Registration, a Summary (Brennan Center, Feb 16, 2021)
    • Nineteen states and the District have already approved AVR.
    • AVR makes two changes to the way voters are traditionally registered.
      • First, AVR makes voter registration “opt-out” instead of “opt-in”—eligible citizens who interact with government agencies are registered to vote or have their existing registration information updated, unless they affirmatively decline. 
      • Second, those agencies transfer voter registration information electronically to election officials instead of using paper registration forms
Early Voting
National Election Holiday
  • Majority says Election Day should be a federal holiday, poll finds (The Hill, 11/6/2018 )
    • A majority of respondents in a new American Barometer survey say Election Day should be a federal holiday for which everyone gets a day off from work.
    • The poll, conducted by Hill.TV and the HarrisX polling company, found 54 percent of voters said Election Day should be a federal holiday, while 46 percent said it should not. 
    • Sixty-three percent of Democrats said the day should be a federal holiday, while 48 percent of Republicans agreed.  
    • Independents were evenly split on the matter, with 50 percent favoring a holiday, and 50 percent against the idea. 
    • Proponents of making Election Day a holiday say it would provide voters with more access to the polls by giving them more time to vote. 
    • Those against the idea argue that shutting down businesses could have a negative impact on their revenue, and say that voters who work at hospitals and facilities that are open every day would not benefit.
Same Day Voter Registration
Voting by Mail

View Dubious Claims about Voting by Mail

More Polling Places
Polling Places Open Longer
Simple, Clear, Standardized Ballots
Voting by Phone?
  • Voting by Phone Is Easy. But Is It Secure? (Pew, 7/18/2019)
    • The Democratic Party announced this month that Iowans and Nevadans in February will be able to opt out of the traditional caucus experience and vote using the keypads on their cell phones or landlines.
    • Some Americans already have voted by phone: Service members from West Virginia and Denver in the past year were able to participate in local elections using a smartphone app.
    • Many election officials, election technology companies and voting rights advocates support a phone-based system to make voting easier for millions of Americans.
    • But the convenience of voting by phone comes with risks. Election security experts have vehemently warned against it, saying it opens elections to potential hacks and disruptions.