It strikes me as a difficult situation: If pro-democracy legislation is seen as passed in a partisan manner, then it’s easier to write off as partisan. Do you see a way around that? Because that would seem to have dire consequences if democracy itself is seen as an inherently partisan exercise.
The way to have avoided it would have been to go to Mitch McConnell — and if he said “no,” go to Mitt Romney and Lisa Murkowski and Liz Cheney — and say, “sit with me and draft up a bill that would counter election subversion.” That wouldn’t convince all Republicans, but it would have gone a long way.
There was a moment — I mean, go back and look at the speech that McConnell gave after the insurrection and the condemnation of Trump. Trump has only strengthened his hand, and any Republican who might try to suggest legislation that would make it harder to steal elections is going to be attacked by Trump. Already, Mitch McConnell is being attacked by Trump — and he let him get so much of his agenda through. That moment passed, but there was that moment.
So, yes, it’s a danger. But what’s the alternative? Doing nothing?
Some Republicans note that large numbers of Democrats believed that George W. Bush was illegitimately elected. A Gallup poll from July 2001 even showed something around 36 percent of Democrats believed that Bush “stole the election.” How is that any different than what we’re seeing now from Trump supporters?
Well, first of all, the Trump supporters have been manipulated from the top down. Al Gore never claimed a stolen election. Al Gore conceded after the Supreme Court ended the recount, even as some people urged him not to. Democrats never organized to try to manipulate election results illegally [in order] to counter the supposedly stolen election. A poll by CNN recently found that 59 percent of Republicans say that believing in Trump’s claims of a stolen election is what it “means to be a Republican.” I mean, that’s just awful.
The reason Bush v. Gore undermined Democrats’ confidence in the process so much was that the margin of error in the election greatly exceeded the margin of victory of the candidate. When you essentially have a tie in an election, and the tie-breaking rules are political bodies — and I consider the U.S. Supreme Court to be a political body, just like the Florida Supreme Court — you’re going to have some disgruntled people.
But 2020 was not a close election. It was not a close election in the popular vote; it was not a close election in the Electoral College vote. There is no basis in reality for believing that the winner actually lost the election.
So they’re different a number of ways. And you did not see the leader of the party seeking to denigrate the democratic process through false claims of stolen election hundreds, if not thousands, of times.
You’ve noted that it would be constitutional for a state like, say, Georgia, to give the state legislature the power to directly appoint the state’s presidential electors. But you think that’s a political nonstarter because the legislators who sought to do so would face the voters’ wrath. How confident are you that voters would care in large enough numbers for it to matter?
Oh, I think it would be huge if voters were told that they no longer could vote for president. I think that’s why it has not been tried. If you poll them, voters don’t like to lose their ability to vote for judges. We know this. There was an attempt back in the 2000s to get Nevada to switch [from elected judges to appointed judges]. Former Justice [Sandra Day] O’Connor even came out of retirement to do robocalls to get rid of the elected judiciary. And it lost. People didn’t want to give up their right to vote for judges; they certainly wouldn’t want to give up their right to vote for the most important office in the world.
Would all of this hand-wringing just be a moot point if we didn’t have the Electoral College?
Putting aside the merits of having the states vote through an Electoral College system as opposed to the popular vote, the problem is not the Electoral College; it’s how we translate the Electoral College votes into actual outcomes. First, you vote in the states, then the vote has to be certified — typically, that’s by the governor, but in some states there’s a whole certification process with room for objection. Then the Electoral College votes have to be mailed to Congress. It’s a very creaky system — which works fine when everyone abides by the norm that the winner is actually going to be the winner. But when people don’t abide by those norms, then there’s all this slack that could create room for chicanery and for manipulating outcomes.
Why do you think voting rights hasn’t been as potent a motivating issue for voters as, say, abortion?
I think it’s becoming an issue. It was an issue in the 2020 election — but was much more of a background issue. But I think it’s going to continue to be an issue as long as Trump and Trumpism are on the scene because Trump himself made voting an election issue.
You talk with a fair number of election officials and write that they’re dropping out of the field in large numbers. What effect does that have on elections?
I think it has two negative effects. First, you’re removing professionals who have experience and can withstand pressure, and new people that come in — even if they’re completely well-intentioned — are more apt to make errors because they’re going to be less experienced and potentially open to pressure. Second, it’s possible that some of those officials are being replaced by people who do not have allegiance to the integrity of the process, and would be willing to steal votes because they believe the false claims that votes were stolen from Trump.