American democracy has overcome big stress tests since the 2020 election. More challenges are ahead
Dec 31, 2023, 6:27 AM
(AP Photo/John Minchillo, File)
Over the past three years, the world’s oldest democracy has been tested in ways not seen in decades.
A sitting president tried to overturn an election and his supporters stormed the Capitol to stop the winner from taking power. Supporters of that attack launched a campaign against local election offices, chasing out veteran administrators and pushing conservative states to pass new laws making it harder to vote.
At the same time, the past three years proved that American democracy was resilient.
Former President Donald Trump’s attempts to overturn the 2020 election results failed, blocked by the constitutional system’s checks and balances, and he now faces both federal and state charges for those efforts. Then the voters stepped in. In every presidential battleground state, they rejected all candidates who supported Trump’s stolen election lies and were running for statewide offices that had some oversight of elections.
The election infrastructure in the country performed well, with only scattered disruptions during the 2022 midterms. New voting laws, many of which are technical and incremental, had little discernable impact on actual voting.
“Voters have stepped up to defend our democracy over the past few years,” said Joanna Lydgate, chief executive officer of States United, which tracks those who refuse to believe in the legitimacy of the 2020 presidential election. “State and local officials have done a tremendous job in protecting our free and fair elections.”
So why all the worry? As Lydgate and anyone else who works in the pro-democracy field quickly notes, the big test — what Lydgate calls “the Super Bowl” — awaits in 2024.
Trump is running for the White House again and has been dominating the Republican primary as the first votes approach. He has called for pardoning those prosecuted for the Jan. 6, 2021, attack on the Capitol, continues to insist falsely that the 2020 election was “stolen” and says he will use the federal government to seek revenge on his political enemies.
Trump has used increasingly authoritarian rhetoric as he campaigns for the GOP nomination. If he wins, allies have been planning to seed the government with loyalists so the bureaucracy doesn’t hinder Trump’s more controversial plans the way it did during his first term.
It’s gotten to the point that Trump was recently asked by conservative commentator Hugh Hewitt whether he planned to be a dictator: “Not at all,” Trump responded. “No, I’m gonna rule as somebody that’s very popular with the people.”
The 2024 election could cause all sorts of conflict, including scenarios that have notably not materialized despite widespread concern since 2020: violence at the polls, overly aggressive partisan poll watchers or breakdowns in the ballot count.
It seems unlikely, though, that Trump could return to the White House if he loses the election. That’s what he failed to accomplish in 2020, and he’s in a weaker position now.
His strategy then was to use Republican dominance in swing state legislatures, governorships and secretary of state offices to try to send slates of fake electors to Congress even though Democrat Joe Biden won those states and captured the presidency.
Since then, Republicans have lost two of those swing state secretary of state offices — in Arizona and Nevada — the governor’s office n Arizona and control of the state legislatures in Michigan and Pennsylvania. In Congress, lawmakers passed a bipartisan bill closing some of the loopholes in the counting of Electoral College votes that Trump tried to exploit to stay in office, making it harder to challenge state certifications on the House floor.
The upshot is it will be far harder for Trump to try to overturn a loss in 2024 than in 2020. The most likely way he returns to the White House is by winning the election outright.
“It’s not to say the risks are gone,” said Rick Hasen, a law professor at the University of California, Los Angeles. “It’s to say we’ve successfully fought the last war.”
History is full of examples of authoritarians who first came to office by winning a legitimate democratic election. But the risk to democracy of someone legitimately winning an election is different than the risk of a candidate trying to overturn an election loss.
When Trump began to falsely claim he had won the 2020 election and urged Republicans to overrule their states’ voters and send his electors to Congress, every GOP official with the power to do that refused. The Republican leaders of the Michigan Legislature turned down his request to overrule voters. In Georgia, where the presidential ballots were counted three times and affirmed Biden’s win, Gov. Brian Kemp and Secretary of State Brad Raffensperger earned Trump’s fury by rejecting him. So did then- Arizona Gov. Doug Ducey and the Republican leaders of that state’s legislature.
Some Republicans did try to aid Trump. Texas Attorney General Ken Paxton led a group of 17 GOP attorneys general in filing a lawsuit urging the U.S. Supreme Court to overturn the election. The high court swiftly dismissed the case. Trump lost all but one of more than 60 lawsuits he and his allies filed in states to overturn the election, sometimes before judges he had appointed.
Then in November 2022, every swing state candidate who backed Trump’s effort to overturn his loss and who was running for a statewide office with a role in elections lost.
“There’s little doubt our democracy has gotten dinged up in a couple of moments of late, but we have decided we like it compared to the alterative,” said Justin Levitt, who served as adviser for democracy and voting rights for two years in the Biden White House and is now a law professor at Loyola Marymount University in Los Angeles.
Election deniers have been able to make gains in one area — offices where they simply have to win a Republican primary. That’s meant they have taken power in local governments in many rural areas, often disrupting elections and embracing conspiracy theories or procedures such as hand-counting, which is less reliable and more time-consuming than tabulating thousands of votes on machines.
They also have been able to expand their power within Republican legislative bodies from statehouses to Congress. U.S. Rep. Mike Johnson of Louisiana, who helped organize a brief supporting the quickly thrown-out lawsuit to overturn Biden’s victory, is now the House speaker.
If Johnson retains his speakership in January 2025, he could be in a position to disrupt certification of a Biden victory. Republicans more willing to subvert democracy also could have greater sway in state legislatures.
Then there’s the view of Trump backers. They report being even more worried about democracy than those who oppose him. Normally members of the party out of power feels like democracy isn’t working as well for them, but Trump’s situation is different. He’s the first president in history to face prosecution and is promoting the narrative that he’s being persecuted by his likely general election opponent.
Trump says the criminal cases and separate attempts to bar him from the ballot under the insurrection clause of the Constitution are a form of election interference.
The Colorado Supreme Court found his role in the Jan. 6 attack was sufficient grounds to remove him from the state’s ballot under the 14th Amendment, a ruling Trump’s campaign said it will appeal soon to the U.S. Supreme Court, where three of his nominees help form the conservative majority. On Thursday, Maine’s Democratic secretary of state struck Trump from that state’s primary ballot, becoming the first election official to take such action. Shenna Bellows suspended her ruling until Maine’s court system rules on the case.
While campaigning, Trump has adopted an “I’m rubber and you’re glue” approach, accusing Biden of being the actual threat to democracy.
A more revealing argument comes from a contention one of the former president’s attorneys made before the Colorado Supreme Court. Scott Gessler, a former Colorado secretary of state, was arguing against attempts by a liberal group to boot Trump from the ballot.
“If the entire nation chooses someone to be president, can that be an insurrection or is that a democratic choice?” Gessler asked.
Gessler was addressing the hypothetical case of a former Confederate winning the White House in the 19th century, but it’s easy to see how this applies to the election before us.
Or, as Levitt said of American democracy: “It is kind of up to us how resilient we make it.”