By Michael Gelman
We now know that our democracy is far more fragile than we had assumed. Few would have believed that any president of the United States would not only refuse to acknowledge a seven million vote defeat but would encourage an armed insurrection, and we now know that the Trump administration seriously considered a variety of schemes to overturn the results of the 2020 election. More than 70 percent of Republicans now believe the “big lie” of a stolen presidential election. Republican legislators, falling over themselves to prove their fealty to Donald Trump, are passing bills aimed at making it harder to vote and suppressing minority votes. These challenges cannot be ignored. Appropriate legislation has already passed the House — whether it will become law depends upon whether Democrats abolish or reform the filibuster to allow a majority vote in the Senate.
But as important as these issues are, we cannot ignore two insidious threats waiting to metastasize: the overturning of legitimate presidential election results by state legislatures and acquiescence in election chicanery by a U.S. Supreme Court packed with Republicans who see the judiciary as another avenue to advance Republican interests. The Supreme Court has a recent track record of ruling against democracy, whether by allowing legislative gerrymandering or invalidating campaign finance reform in Citizens United, and we can count on the current Court to exacerbate the damage that has already been done.
The Electoral Count Act, passed in 1887, allows state legislatures to appoint presidential electors in the event the election has “failed to make a choice.” But what that means is unclear. It is not farfetched to imagine that, following claims of election fraud, real or imagined, Republican legislatures might attempt to replace lawfully elected Electoral College electors with their own electors. Indeed, this idea was floated by some Republicans following Trump’s defeat in 2020, and Republicans continue to embrace this so-called “independent state legislature” doctrine.
In normal times, we could rely on the Supreme Court to protect our democracy from blatant attempts at subversion. But this Supreme Court is packed with Republican loyalists, in large part because then-Majority Leader Mitch McConnell (R-Ky.) broke precedent and refused to even hold hearings on President Barack Obama’s nominee and then broke precedent again to ram through a last-minute Trump appointee. It will be of little surprise to see this Republican Supreme Court refuse to take a case that involves a state legislature overturning the will of the people to seat Republican electors. If we have to rely on this Supreme Court to prevent a Republican election grab, we will have already lost.
Until all Americans embrace the fundamental respect for democracy and fair play that the success of our democracy depends on — which includes placing the values of our democracy and the peaceful transition of power above other policy preferences — it will not be enough simply to win. Democrats must win by margins large enough to minimize the likelihood that Republican efforts to overturn the will of the voters will succeed. We cannot be complacent; we must vote and encourage others to vote as well. We must elect legislators who care more about our democracy than their lust for power. The survival of our democracy depends on it.
Michael Gelman serves on the board of the Jewish Democratic Council of America and is a member of the ownership group of Mid-Atlantic Media, publisher of Washington Jewish Week.