Opinion | How to Ensure This Never Happens Again
The path from the Nov. 3 election has been harrowing for American democracy. Though state and local officials ran clean, well-functioning elections, leaving no doubt that Joe Biden was the victor, President Trump and a sizable faction of Republicans in Congress have relentlessly tried to subvert the results. Their assault culminated in yesterday’s insurrection at the Capitol, a physical attack on the home of our democracy, incited by the sitting president.
This dark reality owes much to Trump’s malign political style — his narcissism and demagogy, his willingness to sell lies to his political base — and to the ways that the Republican Party has fed his worst tendencies. But certain aspects of the electoral system also helped bring us to this point. With even the soon-to-be Senate minority leader, Mitch McConnell, now conceding that elections are not supposed to look like this, the months ahead may present a once-in-a-generation opportunity to fix what’s wrong with American democracy — or risk losing it altogether.
Generally speaking, politicians don’t like to run on a platform of small “d” democratic reforms. Structural change can seem abstract and the obstacles to success too great. But history shows that it can — and must — be done. In other fraught moments, under pressure from an outraged American public, politicians have managed to transcend party and regional divisions to strengthen the democratic process.
During the Progressive Era, Congress and the states approved two constitutional amendments that changed the nature of national elections. The first, ratified in 1913, allowed Americans to vote directly for their senators rather than leaving the choice to their state legislatures. The second was the 1920 women's suffrage amendment, which roughly doubled the size of the electorate.
By the 1960s, the civil rights movement finally forced Congress, with the 1965 Voting Rights Act, to end the exclusion of most Black people from voting. A few years later, both parties reformed their primary systems to give their voters a real say in choosing their party’s presidential candidate. And in 1971, it took the states less than four months to ratify a constitutional amendment lowering the voting age from 21 to 18 in response to widespread protests over the Vietnam draft, which called up men starting at age 18.
Since then, bipartisan majorities in Congress have passed more technocratic but still useful reforms. The 1993 National Voter Registration Act (also known as the motor voter law) required states to offer voter registration materials to people who get or renew a driver’s license or apply for public assistance. The Help America Vote Act of 2002 addressed meltdowns in the 2000 election — when an estimated four to six million ballots were not counted — by providing federal funds to replace faulty punch-card and lever-based balloting.
Now we are once more in dire need of reform. But some proposals will be far easier to enact than others, and each will require a different strategy. Here are some ideas for fixing what ails, from the most feasible in the short run to the biggest reach.
Fix the Electoral College Process
The 1887 Electoral Count Act, which is supposed to govern the resolution of a disputed presidential election, is “impenetrable or, at the very least, indeterminate,” according to Edward B. Foley, a scholar who has spent his career studying it. If we’re stuck with the Electoral College, we should at least make the rules for how it operates in the event of a dispute crystal clear.
Congress could detail narrow circumstances in which a state election would be deemed to have failed (in the event of a natural disaster on Election Day, for example). A new law could also clarify that state legislatures have the power to choose electors only in those circumstances or not at all (the Constitution leaves the door open to more meddling). And it could outline what happens if a state submits dueling slates of electors, along with the current rules for choosing a president in the House if all else fails.
Establish national best practices for voting and election security
American elections don’t follow a set of best practices to enhance both access and security. Better election laws could provide for equitable access to polling places, early voting, and vote by mail, while protecting eligible voters from being purged from the rolls and ensuring that no one could vote twice. States could also build infrastructure that’s safe from hackers.
Legislation in the House provides one possible blueprint. A bill it passed in 2019 would set national standards and fund election infrastructure. It also would grant the right to vote to people who have been convicted of a felony if they’ve been sentenced only to probation or released from custody (several states have since introduced their own such laws). And it sets up a pilot program to give high school students information about registering to vote before they graduate.
Register voters automatically
Automatically registering voters — through drivers licenses, for instance — would add up to 50 million people to the rolls, according to the Brennan Center for Justice at New York University. When the House passed national automatic voter registration in 2019, no Republicans voted for it. If national legislation proves unlikely, states can enact automatic voter registration on their own. Twenty states and the District of Columbia have some version, according to the National Conference of State Legislatures.
Turn D.C. and Puerto Rico into states
The Senate’s structure, with each state, regardless of population, having two senators, favors rural, white, Republican-leaning states, creating a body that fails to reflect the national electorate. Diverse, blue-leaning California, with almost 40 million residents, has just two senators, while the states of South Dakota, North Dakota, Wyoming, Idaho and Alaska — all red-leaning and mostly white — have a combined 10 senators for fewer than five million residents overall. Statehood for Washington, D.C., and Puerto Rico would not only provide representation in the national government to millions of Americans who now lack it, but would begin to address (though not eliminate) the imbalance in the Senate by adding four new Senate seats representing racially diverse, densely populated urban areas.
The Democratic House passed a statehood bill for D.C. for the first time last year. Statehood itself would require both approval by Congress and by the state’s residents.
Partisan gerrymandering reduces the number of competitive electoral districts, contributing to the polarization of Congress and state legislatures by pushing candidates away from the center and all but guaranteeing one party’s success in most races.
In 2019, a conservative majority on the Supreme Court ruled that partisan gerrymandering claims are beyond the reach of federal courts. But state courts can limit gerrymandering based on state constitutions, as the Pennsylvania Supreme Court did in 2018. States can also adopt nonpartisan redistricting commissions, as several have done. Research shows that these commissions have succeeded in drawing electoral maps that neutralize partisan bias.
Make People Vote
Compulsory voting is, hands down, the most effective way to increase turnout. It also changes politics: Suppressing the vote is no longer a strategy. “Campaigns have to focus on persuasion, not demobilizing voters,” says Nathaniel Persily, co-director of the Stanford-MIT Healthy Elections Project.
A city or a county could pass an ordinance imposing a penalty on people who fail to vote. The idea wouldn’t be to force voters to pick a candidate. They could turn in a blank ballot. But they couldn’t ignore the election without some penalty. (A potentially more popular alternative — giving people a tax credit or another benefit in exchange for voting — would probably require a change in federal law.)
Shorten the Transition
In the early 1930s, in the midst of the Great Depression, Congress and the states came together on a constitutional amendment to shorten the presidential transition from four to two-and-a-half months. That change came too late to prevent a disastrous and lengthy transition between Herbert Hoover and Franklin Roosevelt, which accelerated the country’s banking crisis and deepened the depression. Now, the period from Nov 3 to Jan 20 itself seems too long, given the fast-paced nature of political events. Rather than a time of peaceful transition, it has this year became an opportunity for mischief that can rattle democracy to its core. A new constitutional amendment could update the transition timeline, with no partisan implications.
Eliminate the Electoral College
The Electoral College, which apportions its electors based on the size of each state’s congressional delegation, skews elections by concentrating attention on a handful of swing states. One result is that a candidate can lose in the Electoral College while winning the popular vote. Ask Al Gore and Hillary Clinton.
Eliminating the Electoral College altogether would require a constitutional amendment. As a more viable alternative, reformers have proposed a National Popular Vote Interstate Compact. States would pledge to award all of their Electoral College votes to the winner of the national popular vote. The compact would take effect once states with the winning minimum total of 270 votes join. So far, states with 196 electoral votes combined have signed on.
Beverly Gage is a professor of history and American studies at Yale. Emily Bazelon is a staff writer at The New York Times Magazine.
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