Sometimes it can feel like too much of the energy put into defending American democracy is being spent on symbolic fights. Democrats rail against voter ID laws that don’t do all that much hamper turnout, even among the Black voters they are most worried about. The biggest pro-democracy push from elected officials recently took the form of a quixotic fight for a doomed bill establishing nationwide voting standards. One potential exception to this pattern has been the Senate’s efforts to reform the Electoral Count Act. Hopefully this will prevent election subversion in Congress, but even it will likely leave major issues unaddressed. Due to the parliamentary hurdle of the filibuster, this measure will need Republican support. Consequently, provisions clarifying the role federal courts can play in adjudicating state-run elections will probably be cut. These provisions might have been the most valuable part of the bill. Presidential election results must make their way through quite a process in the states before they reach Congress. And challenges to this process from partisan reforms and election-denying candidates undermine its neutrality, which scholars like Aziz Huq and Tom Ginsburg identify as a key tenet of liberal democracy. This presents American democracy with one of its most overlooked yet pressing threats.
The American election system is highly decentralized and variable by state, but the typical process for counting, canvassing, and certifying presidential vote tallies goes something like this: first, local officials count and canvass ballots. Then, they send them to state officials, typically a board of elections or secretary of state. These state-level officials must certify the tally, sometimes with a governor’s signature as well. Next, these votes result in a slate of electors being sent to the electoral college. After the electoral college casts its votes, those votes are counted by Congress. That final step was what the insurrection on January 6th disrupted, and what Senate efforts to reform the Electoral Count Act focus on.
This system has resulted in democratically questionable proceedings in the past. In 2000, Florida’s elected Republican Secretary of State certified results showing Republican presidential nominee George W. Bush won the state before a recount in Democratic counties could be completed. 2020, however, demonstrated how that system could get tripped up not just by politically-tinged interpretations of ambiguous laws like in Florida, but by outright partisan denial of results.
In Michigan, the Republican members of the Board of Canvassers of Wayne County, home of Detroit, initially voted against certifying the heavily Democratic vote total. Although they eventually relented and certified the results, the state board nearly had the same issue. Fortunately, one of its Republican members voted to certify the results despite immense pressure from some Trump supporters. And of course there was former President Donald Trump’s infamous post-election call to Georgia Secretary of State Brad Raffensperger where he asked Raffensperger to “find 11,780 votes.” If Raffensperger had somehow changed the tally by that number, Georgia’s 16 electoral votes would have gone to Trump, not President Joe Biden, who had legitimately won the state by a margin of 11,779 votes. In all these cases, officials came close to effectively rejecting the principle of Schumpeterian democracy that an electorate can rescind their acceptance of an elected leader.
There are only a handful of decisions made by responsible Republicans in a decentralized system to thank for an accurate vote tally in the 2020 election. But there is no guarantee that can be relied on in 2024. Since the election, GOP-controlled state legislatures have shifted more power in election administration from career bureaucrats to partisan officials.
There also are more and more Republicans who explicitly deny the legitimacy of the last election running for election-certifying offices. Former Georgia Senator David Perdue, who is challenging incumbent Georgia Governor Brian Kemp, has explicitly stated that he, unlike Kemp, would not have certified the 2020 election results showing that Biden won Georgia. If Perdue wouldn’t have certified the true election results in 2020, why would anyone expect him to do so in 2024?
Still, Biden would have won the presidential election even without Georgia’s electoral votes. To make a difference in the outcome of a presidential election, election subverters would probably need to swing or nullify results in multiple states. Doing so in the U.S.’s highly decentralized election system would take extensive organization. Unfortunately, that seems to be exactly what is happening. Alt-right commentator, strategist, and Trump ally Steve Bannon has promoted organizing “precinct by precinct.” And election doubters appear to be doing so. Jim Marchant, who is running for Secretary of State in Nevada, has spoken of a “coalition of America First secretary of state candidates.” This coalition includes candidates in crucial swing states — Nevada, Georgia, Michigan, Arizona, and New Mexico — exactly where a few key officials could save or sabotage the next presidential election.
What would a response to this threat look like? Federalizing and bureaucratizing American election infrastructure into a nonpartisan system is the obvious solution, but it is a political impossibility in America’s sclerotic and proudly federal system. Plus, doing so comes with its own disadvantages. A centralized election system governed by nonpartisan experts may be less vulnerable to domestic disruption, but much more vulnerable to foreign interference or cyber attacks. The myriad systems currently in place make it near-impossible for wide-scale foreign meddling in American elections to occur.
The best feasible solution is to focus the resources of pro-democracy forces on campaigns for these crucial positions. Donors should fund candidates for governor and secretary of state, Democratic and Republican alike, who are staunchly committed to accurate election counts and give no credence to falsehoods surrounding 2020. They should do this even if it means less money or energy flows to other races. The Democratic majority in the House of Representatives is so slim that typical midterm losses are likely to wipe it out. Given the House’s majoritarian structure, it ultimately matters little if the Democrats lose it by 40 seats or 10 seats. However, it does matter immensely if a responsible Secretary of State ensures that votes from Nevada are counted accurately in 2024.
These threats to a neutral electoral system are a real existential crisis for American democracy. They warrant more than symbolic fights in response. If leaders are serious about protecting American democracy, they need to start acting like it, even when it requires painful tradeoffs.