On Aug. 20, Rep. Colin Allred (D-Texas) introduced the “Protecting Election Administration from Interference Act” in the House. It followed on the heels of Georgia Republicans’ latest move to take partisan control of vote-counting in Fulton County.
If partisans count the votes, they can determine the result, no matter how people actually voted.
Fulton County is home to Atlanta, with its majority black population. President Joe BidenJoe BidenBiden: Democrats' spending plan is 'a bigger darn deal' than Obamacare Biden says he's open to altering, eliminating filibuster to advance voting rights Biden: Comment that DOJ should prosecute those who defy subpoenas 'not appropriate' MORE won Fulton County by a margin of 243,000 votes last year, in a state that, after three recounts, went his way by less than 12,000 votes.
Georgia’s Aug. 18 action was to name a Republican-controlled committee to do a “performance review” of the Fulton County board. Under Georgia’s new March 30 election law, that review is a key step in taking over a local election board.
The Republican move to control vote-counting calls to mind a maxim attributed to Mark Twain: “History doesn’t repeat itself, but it does rhyme.” In other words, though the same event doesn’t happen twice, patterns of human experience recur with sufficient similarity to sound in symmetry.
Manipulating electoral institutions is behavior that “rhymes” with the history of self-serving politicians finding a better route to authoritarian control than trying to seize power forcibly. A decade after his badly executed Beer Hall putsch of 1923, Hitler became German Chancellor by exploiting the tools of democracy.
He learned, as historian Benjamin Carter Hett has written, from defeat: “A sophisticated modern state could not be overturned by a violent coup … He realized he would have to work within the system.”
Modern history offers a similar tutorial. In countries such as Hungary, Russia, Turkey, Poland, Nicaragua and the Philippines, says Harvard political scientist Steven Levitsky, democracies died “at the hands of governments that were often freely or close to freely elected, who then use democratic institutions to weaken or destroy democracy.”
From the Jan. 6 Capitol insurrection and the madcap last months of the Trump presidency, Republicans across our country seem to have absorbed similar lessons on how to “game” the system in order to break it in their favor.
First, most Americans don’t like insurrections. Better to find a legal way to win.
Second, some government officials can be corrupted some of the time, but not all at the critical moment. In recent days, we’ve been learning how, in January, Acting Attorney General Jeffrey Rosen resisted Trump’s invitation to help void the 2020 election.
Third, changing the rules in the middle of the game doesn’t work. The Constitution’s Election Clause empowers state legislatures to set election rules, subject to Congressional override. But if a state legislature has already yielded its rulemaking powers to nonpartisan election boards or to Secretaries of State, the situation before November 2020, lawmakers cannot reclaim that authority during that election.
That’s why Republicans are grabbing the power in 2021.
Republican state legislatures in 10 states this year have adopted laws increasing partisan power over election-related responsibilities. The efforts are especially intense in battleground states that could also decide the 2024 presidential election.
Take Arizona: In June, its Republican legislature stripped Secretary of State Katie Hobbs’s office of the power to represent Arizona in court. Recall that in December 2020, Hobbs, a Democrat, successfully defended against a lawsuit filed by Trump backers to toss the state’s election results.
In January, Michigan’s Republican Party replaced Aaron Van Langevelde, the state’s “canvassing board” member who in November 2020 cast the deciding vote to certify Michigan’s Electoral College vote for Biden. The leader of a conservative Michigan foundation that is funded by former Trump Education Secretary Betsy DeVosBetsy DeVosMcAuliffe rolls out new ad hitting back at Youngkin on education Biden DOJ tries to shield DeVos from deposition in lawsuit over student loans The long con targeting student survivors of sexual assault MORE’s family replaced Van Langevelde.
Allred’s bill would provide a partial repair, expanding safeguards for local administrators of elections who are at the center of a disinformation maelstrom and threats of violence. The bill would also strengthen the security of ballots and authorize the Justice Department and candidates to bring lawsuits protecting election records.
In the Senate, Amy KlobucharAmy KlobucharGOP blocks Senate Democrats' revised elections bill Progressives push back on decision to shrink Biden's paid family leave program The Hill's 12:30 Report - Presented by Altria - Biden holds meetings to resurrect his spending plan MORE (D-Minn.), Jon OssoffJon OssoffDemocrats jostle over health care priorities for scaled-back package GOP blocks Senate Democrats' revised elections bill Poll: Half of voters say American democracy under 'major threat' MORE (D-Ga.), Jeff MerkleyJeff MerkleySenate Democrats call for diversity among new Federal Reserve Bank presidents Democrats look for plan B on filibuster GOP blocks Senate Democrats' revised elections bill MORE (D-Ore.) and Alex PadillaAlex PadillaSenate Democrats call for diversity among new Federal Reserve Bank presidents GOP blocks Senate Democrats' revised elections bill Progressives push back on decision to shrink Biden's paid family leave program MORE (D-Calif.) introduced parallel legislation on Aug. 5.
Passage of these measures, like adoption of the “For the People Act” and the John Lewis Voting Rights Advancement Act, will depend on modifying or limiting the Senate filibuster that requires 60 votes to adopt most legislation
Unless the Senate takes that action, those preferring Hungary’s or Russia’s one-party rule may prevail. If so, it will have been done through a “quiet coup” with “an air of respectability,” in the words of elections scholar Rick Hasen.
Without action, the way we lose our freedoms could be like that in modern dictatorships … or close enough in cadence for it to rhyme.
Dennis Aftergut is a former federal prosecutor, who successfully argued an election law case before the Supreme Court. He is currently of counsel at the Renne Public Law Group in San Francisco.