Why I’ve never been more worried about American democracy — and what we can do to save it
Looking back at 2021, the most significant constitutional development occurred in the first few days of the year: Our democracy survived.
The guardrails of democracy held, but just barely. The lesson should be to enact legal changes to make a coup less likely in the future. But it hasn’t happened yet, and new laws enacted in many states make the dangers even greater for the presidential election in 2024 and beyond.
The underlying facts are familiar to us all. Former President Donald Trump claimed that the 2020 presidential election was stolen from him despite losing by over 7 million votes and by a decisive margin in the Electoral College.
Many lawsuits were brought by his supporters, and, in every case, without exception, judges found no evidence of fraud. Every judge — Republican and Democrat, state and federal — concluded that there was no basis for Trump’s allegations.
Trump pressured election officials in states such as Michigan and Georgia to change the outcome in his favor. On Jan. 2, Trump urged fellow Republican Brad Raffensperger, Georgia’s secretary of state, to “find” enough votes to overturn his defeat.
Trump tried to persuade Republican legislators in states such as Arizona and Pennsylvania to overturn the popular vote and award Trump their electors. Trump supporters asked the Supreme Court to discount the votes of the states of Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.
When all of that failed, Trump pressured Vice President Mike Pence to make him the winner when the Senate met to count the electoral votes. Trump urged Pence to follow a plan developed by then-Chapman University law professor John Eastman under which the vice president, who was presiding over Congress on Jan. 6, would refuse to count the electoral votes from those six states.
Had Pence declared Trump the president, notwithstanding the popular and electoral votes, we would have been witnesses to the first coup in American history.
Jan. 6 also saw an unprecedented insurrection as supporters of Trump violently stormed the Capitol, some with the apparent intent of killing Pence. This occurred after Trump told a crowd of his supporters at a rally on the National Mall that the election was “the most corrupt election in the history, maybe, of the world.” He appealed to Pence but said that if the vice president did not come through, “we’re just not going to let” Biden become president. And he urged his supporters to go to the nearby Capitol and “fight like hell.”
The response to all of this should be to change the federal law governing presidential elections to ensure that there’s no chance of a coup in the future.
The Electoral Count Act of 1887, which governs the counting of electoral votes, must be revised. I completely agree with a recent article in the conservative National Review: “At a minimum, it should make explicit and undeniable that (1) the vice president does not decide which electoral votes to count; and (2) states that hold popular votes to choose electors cannot later attempt to have their legislatures select their own electors.”
These reforms have been proposed in Congress but not enacted. It’s urgent that they be adopted before 2024.
At the same time, some Republican-controlled state legislatures have adopted laws designed to seize more partisan control over how presidential electors are awarded. Nineteen states with Republican legislatures have also adopted laws to make voting more difficult, with the clear intent of suppressing votes among Democrats and people of color.
No form of government lasts forever. Many countries have been democracies until they weren’t.
I have never been more worried about whether American democracy can survive. We must recognize how close we came to the end of our democracy and understand the need to protect it in the future.
