Executive Branch

The Danger of the Moment

Bob Bauer
Monday, May 24, 2021, 3:01 PM

Donald Trump is promoting, and his party is using various means of achieving, a politicized electoral process in which politicians would have more power to direct the running of elections in their self-interest.

Voters cast their ballots in the 2020 election in Des Moines, Iowa. (Phil Roeder, https://flic.kr/p/2k3drHP; CC BY 2.0, https://creativecommons.org/licenses/by/2.0/)

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The question during the Donald Trump presidency and then again after the 2020 election was whether Trump’s norm-shattering presidency would prompt a sustained reform initiative like the one following the Nixon presidency and the Watergate scandal. There is a wide range of reforms to consider. But Trump and his Republican allies are now advancing a novel reform of their own, and the “reform” effort marks a new front in the Trump-era attacks on norms and democratic institutions. Trump is promoting, and his party is using various means of achieving, a politicized electoral process in which politicians would have more power to direct the running of elections in their self-interest. Republican-controlled state legislatures are passing laws to subject election officials to partisan control, using the threat of civil fines, criminal liability, and suspension, and it appears that, beginning with Arizona, they will use unprecedented “audits” by political allies to cast doubt on these officials’ professionalism and integrity.

This is how Trump is adapting his brand of demagogic populism to his “post-presidency,” as he perhaps plots an eventual third presidential campaign but certainly maintains his grip on the Republican Party and molds it in his image. His strategy now is no different from the one he followed while president: to politicize institutions so that he can bend them to his will and personal interests. His disdain as president for the independence of the Department of Justice, his baldly political and self-interested uses of the pardon power, his effort to obstruct the presidential transition process: These and other abuses of power in the Trump presidency have the same source, in the same politics, as his drive to compromise the electoral process.

The national policy agenda is, of course, crowded with urgent public health, economic and other matters. Moreover, the space for reform, which is never unlimited, has been taken up with the Democratic congressional effort to move H.R. 1, which rightly includes proposed federal voting standards. But the battle to preserve institutional legitimacy is a fight separate from, though related to, the legislative and related litigation struggles over specific voting rules. At issue is the system for nonpartisan election administration and the role that experienced professionals, not politicians and political parties, will play in implementing voting laws and managing voting systems.

The Trump Assault on the Electoral Process

The current assault on electoral norms and institutions constitutes a radical challenge to understandings reached in the wake of the last major electoral controversy—the 2000 election and the Florida recount. The parties then came together to establish baselines for professional nonpartisan election administration. The Help America Vote Act passed on a bipartisan basis, and among other measures, it established the Election Assistance Commission as a “national clearinghouse and resource” to support the effective administration of elections. It authorized funding to the states to replace the notorious “punch card” machines and fund voter education, election official training, and improved “accessibility and quantity of polling places.”

The Election Assistance Commission has struggled to overcome the same polarizing politics that have gripped other institutions. But there nonetheless long remained a basic bipartisan appreciation of the principle that credible election administration had to operate at some remove from pure partisan political calculation. In 2014, the bipartisan Presidential Commission on Election Administration appointed by President Obama unanimously endorsed the importance of professionalized election administration. “Whatever the view taken of the role of elected officials,” the Commission reported to Obama, “the Commission found general agreement that election administration is public administration. That means that in every respect possible, the responsible department or agency in every state should have on staff individuals who are chosen and serve solely on the basis of their experience and expertise.” It made a point of noting “this is often the case in departments across the country, and it is a model to which all jurisdictions should aspire.” [Note I was a member of the Presidential Commission on Election Administration.]

Now Trump and his supporters are pressing for “election integrity” reforms in Republican state legislative bodies that would reverse course and subject election administration to systematic partisan political control and contestation. Under the voting law passed recently in Iowa, state election officials would be subject to fines for technical infractions—for failing, in the estimation of politicians in the state legislatures, to do their jobs properly. These performance failures are broadly defined to include any that “hinder or disregard the object of the law.” The penalties include $10,000 fines and suspension. Georgia has provided for the removal of election officials for “at least three” violations of law over the course of two election cycles—of whatever kind, however technical or inadvertent. Election officials managing complex systems with limited resources are sure to make “at least three” mistakes—to “violate the law”—leaving them perpetually at risk of removal for reasons unrelated to sound election administration. And, remarkably, the Georgia law prohibits counties from paying for these elections officials’ defense.

There can be little doubt about the objective behind these enactments: to have election officials aware that the politicians are hovering nearby, with new tools at their disposal to bully and intervene as partisan interests require. Nor is this an initiative we expect to occur in only two states. Similar measures to impose penalties or deny funding to officials for various infractions and failures are pending in Missouri, Texas and Wisconsin.

These “reforms” fit into a broader pattern of responses to Trump’s attack on the 2020 election. Republican election officials who aroused the wrath of Trump and his allies by doing their jobs came under direct and personal attack at the time. Georgia wrote its law to remove the secretary of state—the state official responsible for overseeing elections—from the chairmanship of the State Election Board, demoting this official to nonvoting, ex officio status. Now the Georgia General Assembly holds the power to appoint the chair: There can be no clearer signal that the politicians plan to take charge after the 2020 experience when Republican Secretary Brad Raffensperger rejected Trump’s demand that he refuse to certify President Biden as the winner and affirmed the accuracy of the president’s victory in Georgia. As Raffensperger’s chief operating officer and the director of election systems affirmed, the statute eliminating the secretary’s Election Board chairmanship was “political payback, no question”—and a message that Trump and his allies intended to be heard around the country.

Laws to bring election officials under political pressure and controls are not the only mechanisms Trump and his allies have devised. The infamous 2020 postelection “audit” launched by Arizona state Republicans is an extraordinary experiment in partisan challenges to the integrity of elections certified by election officials. Two previous, professionally conducted and bipartisan audits had uncovered no basis for questioning the certified results in favor of Biden. Yet the state senate majority decided to make up an “audit” of its own, retaining for this purpose a firm headed by a “stop the steal” conspiracy theorist. It collected all the ballots and commenced an “audit” without regard to any professional qualifications for the “auditors” or professional standards for the conduct of the “audit.”

The Maricopa County Board of Supervisors protested, on a bipartisan basis, the “failure [of the “auditors”] to understand basic election processes” and termed the proceedings a “circus” and “political theater” that could only have the effect of “encouraging our citizens to distrust elections.”

In no time, the board’s view was vindicated, as the “auditors” announced on Twitter that they had discovered the deletion of entire databases, a “spoliation of evidence”—only to have to retreat and admit that no such deletion had, in fact, occurred. Joining the county board in its denunciation of the “audit” was the Republican recorder of the county, the chief elections official, who responded to the “database deletion” falsehood by protesting on Twitter: “We can’t indulge these insane lies any longer. As a party. As a State. As a country.”

None of these problems deterred Trump from heralding this “audit” and suggesting that other states would follow in its tracks with “audits” of their own. Banned from Facebook and Twitter, Trump used his personal blog to herald the sham and now discredited claim of a “deletion of databases” as further evidence of the “unbelievable Election crime” of 2020. He has told supporters that he is expecting these “audits” around the country, in Pennsylvania, Georgia, Michigan, Wisconsin and New Hampshire. “I wouldn’t be surprised if they found thousands and thousands and thousands of votes,” Trump said. Press reports cited election officials as fearing that “these fights will be a permanent feature of future elections.”

This is far from the standard story of two parties jockeying for competitive advantage or just fighting over close elections. We have had, of course, election controversies in recent decades. Congress bitterly disputed, and the House separately recounted, the 1984 election in Indiana’s 8th Congressional District. Republicans, enraged by their perception that Democrats “stole” the seat, marched to the floor in black armbands. The conclusion to the 2000 presidential recount, which ended by order of a Supreme Court divided along “liberal” and “conservative lines,” appalled Democrats; and they were already fuming over their belief that the governor of Florida had improperly influenced the state legal process in favor of the Republican nominee—his brother. But neither event culminated in one party’s commitment to revamp in fundamental ways the norms and core processes by which elections were conducted and their outcomes eventually accepted as legitimate. The 2000 presidential election inspired the very different result of an imperfect but still concrete bipartisan effort to modernize and professionalize election administration.

Reform and the Defense of Institutions

Trump’s assault on the 2020 elections—on norms and core processes—marks a major and dangerous moment in American democracy. And it tracks the experience more broadly of the Trump presidency with its unprecedented indifference to democratic norms and, in particular, the aim of politicizing various institutional arrangements in his self-interest.

In the immediate future, these electoral institutions require a robust defense. In states like Texas and Florida, Republican as well as Democratic election officials have come out against provisions of voting laws that may serve partisan interests but disserve voters. This bipartisan opposition is an encouraging indication that basic norms of democratic life retain their vitality.

But more needs to be done to check the Trump-directed state legislative program to exert partisan control over election administration. The laws targeting election officials for illicit partisan political purposes, and any punitive actions taken against those officials, call for a vigorous response. Legal challenges can be expected. Organized public pressure on state legislatures will remain indispensable in bringing this attack on the electoral process to wide public attention and calling out those in the state legislatures who are responsible. What is needed is an integrated approach that taps the range of resources available in government, the courts and civil society.

Moreover, each point in the process in which partisans may move in the future to intervene to undermine the professionalism of election administration calls for close attention. The Electoral Count Act should be reformed to modernize and clarify Congress’s function in tallying Electoral College votes and affirming the winner of a presidential election. To be sure, this will not be easy. But it must remain on the national election reform agenda.

The link between these attacks on democratic institutions and the ones that Trump threatened and pursued while in office should be kept clearly in view. The demagogic populist agenda is alive and well and is now being actively pursued in the electoral sphere. There were more than a few indications of this in the Trump candidacy and then presidency. He declined in the 2016 primaries and general election to commit to conceding an election he lost. Once elected, he denied that he lost the popular vote to Hillary Clinton, insisting that her 3 million vote margin was the product of illegal voting. Once in office, Trump established a presidential “commission,” headed by Vice President Mike Pence, to investigate voter fraud. The irregularities in the conduct of the “commission” caused it to collapse; and, of course, it never could show the “fraud” that Trump was hoping to document and that was never there to be found.

Trump’s 2020 reelection campaign was the launching point for a renewed, full-scale attack on the norms and processes critical to nonpartisan election administration, culminating in the Jan. 6 assault on the Capitol. Then came the conversion of Trump’s bitterness over his loss into a formal program to subject the electoral process to partisan control. The demonstrable absurdities of Trump’s claims and tweets about fraud, the ignominious demise of his “commission” to investigate fraud, the scores of lawsuits he lost in challenging the 2020 election, and the events of Jan. 6 might once have seemed enough to discredit and defeat any such program. This did not turn out to be the case. A comprehensive, focused response at the federal and state levels—calling on Democrats, independents and those Republicans ready to step up—is urgently needed to address the danger of this moment.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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