Combating efforts that can undermine the fair administration of elections and vote counting is especially tricky. Unlike issues of voter suppression, which are easy to explain to the public (what do you mean you can’t give water to voters waiting in long lines?!?), the risks of unfair election administration are inchoate. They may materialize or they may not, depending on how close an election is and whether Mr. Trump himself or another person running for office is willing to break democratic norms and insist on an unfair vote count.
So what can be done? To begin with, every jurisdiction in the United States should be voting with systems that produce a paper ballot that can be recounted in the event of a disputed election. Having physical, tangible evidence of voters’ choices, rather than just records on electronic voting machines, is essential to both guard against actual manipulation and protect voter confidence in a fair vote count. Such a provision is already contained in H.R. 1, the mammoth Democrat-sponsored voting bill.
Next, businesses and civic leaders must speak out not just against voter suppression but also at efforts at election subversion. The message needs to be that fair elections require not just voter access to the polls but also procedures to ensure that the means of conducting the election are fair, auditable and verifiable by representatives of both political parties and nongovernmental organizations.
Congress must also fix the rules for counting Electoral College votes, so that spurious objections to the vote counts like the ones we saw on Jan. 6 from senators and representatives, including Senators Josh Hawley and Ted Cruz, are harder to make. It should take much more than a pairing of a single senator and a single representative to raise an objection, and there must be quick means to reject frivolous objections to votes fairly cast and counted in the states.
Congress can also require states to impose basic safeguards in the counting of votes in federal elections. This is not part of the H.R. 1 election reform bill, but it should be, and Article I, Section 4 of the Constitution gives Congress wide berth to override state laws in this area.
Finally, we need a national effort to support those who will count votes fairly. Already we are seeing a flood of competent election administrators retiring from their often-thankless jobs, some after facing threats of violence during the 2020 vote count. Local election administrators need political cover and the equivalent of combat pay, along with adequate budget resources to run fair elections. It took hundreds of millions of dollars in private philanthropy to hold a successful election in 2020; that need for charity should not be repeated.
If someone running for secretary of state endorses the false claim that the 2020 election was stolen, they should be uniformly condemned. Support should go to those who promote election integrity, regardless of party, and who put in place fair and transparent procedures. Ultimately, we need to move toward a more nonpartisan administration of elections and create incentives for loyalty to the integrity of the democratic process, not to a political party.
We may not know until January 2025, when Congress has counted the Electoral College votes of the states, whether those who support election integrity and the rule of law succeeded in preventing election subversion. That may seem far away, but the time to act to prevent a democratic crisis is now. It may begin with lawsuits against new voter-suppression laws and nascent efforts to enshrine the right to vote in the Constitution. But it is also going to require a cross-partisan alliance of those committed to the rule of law — in and out of government — to ensure that our elections continue to reflect the will of the people.
Richard L. Hasen (@rickhasen) is a professor of law and political science at the University of California, Irvine, and the author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.”
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