Comment: Going to take more than laws to defend democracy

Here’s what those concerned for America’s republican form of government can do to protect it.

By Jonathan Bernstein / Bloomberg Opinion

As the Senate prepares to consider voting rights legislation and a special House committee opens its hearings on the Jan. 6 insurrection at the U.S. Capitol, friends of U.S. democracy should be thinking hard about what they will do to fight for it.

The Constitution and its republican form of government — democracy, that is — really are under threat. And the threat comes from former President Donald Trump and his allies. Not from all Republicans, but from Republicans.

Election-law expert Rick Hasen suggested three defense-of-democracy principles in a weekend essay in the New York Times. They are that Democrats can’t preserve free and fair elections without an alliance with principled Republicans; that all of civil society — business groups, civic and professional organizations, labor unions and religious organizations — should be mobilized to protect the rule of law; and that mass, peaceful organizing and protests may be necessary in 2024 and 2025.

It’s an excellent piece, a must-read for those who care about preserving the republic. I’d make five points to supplement, or perhaps recast, his suggestions.

1. Laws alone will not save democracy. Trump wasn’t deterred after the 2020 election by the plain meaning of the law and the Constitution. Had enough Republicans in key positions gone along with him, it’s quite possible he would have successfully remained in office despite losing the election, and that would be even more true in a future scenario in which Trump allies held congressional majorities. Moreover, there’s always a danger of fighting the last war. In 2020, the threat seemed to be in what happened after the votes were counted. Next time, the threat could be in the counting of the ballots, or what happens before the ballots are counted. What this means is that those who support the republic will need to fight for it, and not just through legislative fixes.

2. Nevertheless, the more legal protections, the better. Congress should act to update the Electoral Count Act, the poorly drafted 19th century law governing the counting of electoral votes, and it’s good to see a bipartisan Senate group starting to work on doing so. But that’s not enough. Congress should also do what it can to make sure that state and local elections are conducted on the up-and-up, and should do what it can to ensure that voting is easy for all. Friends of democracy who dislike some of the elements of the Democrats’ voting-rights legislation have a responsibility to support what they can, and work for compromise on the rest; just as friends of Democrats who like all of the Democrats’ proposals have a responsibility to find common ground with folks who try to engage with them in good faith.

3. Protections such as those in the 1965 Voting Rights Act, which has been battered by the Supreme Court, are not irrelevant to the dangers facing U.S. democracy. They are crucial to preserving it, just as the original passage of the Civil Rights Act of 1964 was essential to the creation of a legitimate democracy in the first place. The same goes for other dangers to the republic that we’ve seen in recent years. The idea that everything was fine up until Election Day 2020 is wrong. That doesn’t mean that every provision in any Democratic voting bill is equally important, or even necessarily a good solution to current problems, but the idea that the dangers are simple and one-dimensional ignores a lot of democratic erosion that’s been obvious for well over a decade.

4. Supporters of democracy and the Constitution should always be ready to accept whatever allies they can find, for as much as those allies are willing to give. House Democrats have done so in accepting Republican Rep. Liz Cheney of Wyoming and even her father, former Vice President Dick Cheney, as part of the pro-democracy team; despite the strong feelings many Democrats have about what they see (correctly, in my view) as the damage that Dick Cheney did to U.S. democracy, especially by his support for torture. The nature of coalition politics is that it sometimes requires painful compromises its participants could never have imagined.

5. While everyone should plan for the worst, it’s important not to assume the worst. A lot of the people who stood up against Trump after the 2020 election seemed to be standard-issue, Trump-supporting, voting-rights-impeding Republicans right up to the point where they wouldn’t go along. It’s also true that fatalism helps no one. It’s bad enough that we need to entertain the serious possibility that some Republican-majority legislatures might attempt to overturn their own states’ elections and send rogue slates of electoral votes to Congress, and that a Republican-majority Congress might attempt to accept those votes. We have to take that threat seriously because large numbers of Republicans have suggested they would do so, and more might join them the next time the situation arises. But let’s not pretend that it’s a sure thing, or ignore the crucial fact that Republican legislatures did no such thing in 2020.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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