Donald Trump continues to wreck the engine of our democracy before turning over the keys to President-elect Joe Biden. His unconscionable use of the pardon power; veto of a defense bill for all the wrong reasons; threat to the civil service system; firing of statutory Inspectors General without cause; illegal profiting from business interests; and violations of the Hatch Act represent Trump’s assault on governance. But the most worrisome aspects of his wretched legacy are his attacks on the rule of law, our electoral system, and our tradition of stable succession—indeed, his attack on democracy itself.
President-elect Biden will inherit a crisis worse than those facing Barack Obama in 2009 or Franklin D. Roosevelt in 1933. The international situation is dominated by a raging nationalism, a climate catastrophe, and a devastating pandemic. At home, we have a dysfunctional Congress, a struggling economy, and social tensions worsened by institutional racism. Biden’s cabinet appointments reveal his recognition of these domestic challenges as he has appointed experts prepared to address a damaged public health system, immigration system, and the environmental program.
At the risk of adding to the list of problems facing the Biden-Harris team, I called attention last week to the perilous nature of our democracy itself. Senator Chris Murphy (D-CT) termed Trump’s actions the “most serious attempt to overthrow our democracy in history,” and that is not an overstatement. If a democratic government had been working effectively, then Trump would not have been elected. What is to be done?
The Founding Fathers produced a very liberal document in the Declaration of Independence in 1776, proclaiming the rights of “we the people.” They produced a very conservative one a decade later, however, creating a Constitution giving such rights to white men with wealth. In addition to ignoring the horrific treatment of Native Americans and African-Americans, their fears of the “tyranny of the majority” produced undemocratic systems for deciding presidential and legislative elections. The integrity of our democracy was compromised from the start. The 17th Amendment eventually created the direct election of Senators in 1913 and the 19th Amendment allowed women to vote in 1920. African-Americans gained the right to vote in the 15th Amendment in 1870, but their ability to exercise that right had to wait for a century after the Civil War for the right to vote. Their rights are still suppressed in many parts of the country.
It will require a functional legislative branch to address our electoral problems, using Article I, Section 4 of the Constitution that gives Congress the power to “make or alter” regulations affecting elections. In view of the continuing battle over whether State Legislatures can appoint rival slates of electors, we sorely need a federal elections agency or a nonpartisan board to manage elections and replace the partisan officials who currently do so. The partisan officials conducted themselves well in the current election, but there is no guarantee of continued success in view of the polarization of the electorate in so many states.
A federal board is needed to standardize rules for voter registration and mail-in voting in order to combat voter suppression. Voting and registration rules differ from state-to-state. Some states have automatic registration and easy access to mail-in ballots, but too many states apply arbitrary standards for the right to vote. Long lines to vote and inefficient voting equipment in many states testify to the inequality and unfairness of the current system, which allows each state to create its own rules and regulations. We could learn from the newer democracies in South America and Southeast Asia that have national election standards.
It is difficult to imagine a straightforward constitutional amendment to abolish the Electoral College, but there is a National Popular Vote Interstate Compact that requires electors to award their electoral votes to the presidential winner of the overall popular vote rather than the winner of their particular state. Thus far, 16 States and the District of Columbia have signed the Compact, representing nearly 200 electoral votes. When additional states join the Compact to represent the required 270 electoral votes to produce an ultimate winner, then presumably there will be a court challenge that would allow the Supreme Court to decide on the basis of Article II, Section 1 of the Constitution, which determines that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….” At the very least, we need a national election system that ensures conformity among all States.
The fact that Trump created a potential constitutional crisis on the basis of conflicting laws and regulations in an election that produced a seven million vote victory margin for his adversary points to the need for reform. The year 2000 produced a winning candidate who lost by 500,000 votes; the year 2016 saw a winning candidate who lost by nearly three million votes. These two “winners” have named five justices to the Supreme Court, the most reactionary Court in our history. Trump’s electoral majority in 2016 was secured by 77,000 in three battleground states. An additional 43,000 in several battleground states in 2020 could have allowed Trump’s electoral success. Trump has already tried to enlist members of Congress from Alabama (Rep. Mo Brooks and Senator Tom Tuberville) to introduce alternate electoral slates in the key battleground states.
Federal judges and state officials have thus far stood up to Trump and his sycophants. Trump summoned two Republican lawmakers to the White House in an effort to block the certification process and overrule Michigan voters. He personally called the Republican speaker of Pennsylvania’s House of Representatives to do the same. Trump’s leading sycophant in the Senate, Lindsay Graham (SC) failed to get the Georgian secretary of state, a Republican, to do the same in Georgia. But Republican legislators in battleground states are already moving to toughen state rules on voting by mail and on voter identification. Moreover, Trump’s lawsuits have increased public cynicism regarding the fairness of our elections as well as Republican majorities that find the 2020 election fraudulent.
There is still one more hurdle that will take place in the Congress on January 6th. Congress is ultimately responsible for counting and certifying the Electoral votes. There is always the possibility that Republican legislators will try to appoint a pro-Trump slate in opposition to their voters, or that Brooks or Tuberville will offer their own challenge in the House or Senate respectively. This is unlikely, but there should not be so much uncertainty regarding a process that produced a large electoral and popular majority for Joe Biden. We need to end the uncertainty regarding the ability of state legislators to appoint their own electors in defiance of popular votes.
Political crises such as Watergate in the 1970s and Iran-Contra in the 1980s have produced reforms such as the War Powers Act; the congressional oversight process for the intelligence community; the Foreign Intelligence Surveillance Act; the Civil Service Reform Act; and the statutory Inspector General Act for agencies such as the Central Intelligence Agency. Over the past four years, we have witnessed misuse of the president’s pardon power; intimidation of journalists and the free press; abuses of the Hatch Act; and challenges to the Emolument Clauses of the Constitution. Illegal gerrymandering has already determined that a Democratic candidate for the presidency typically needs five million more votes than his or her Republican opponent in order to carry the electoral college.
If we fail to introduce any elements of reform in the wake of the Trump debacle, the United States will have determined that Trump’s attack on the will of the American people succeeded. It is up to Congress to make sure that a president cannot self-pardon, and that a future postmaster general, unlike Louis DeJoy, cannot undermine absentee voting. The Department of Justice must ensure that a future attorney general, unlike William Barr, cannot prejudge ongoing investigations.
Sadly, there is no reform that will address the fact that approximately 74 million Americans voted to reelect a president who was incompetent and loathsome. He refused to respect our basic democratic values concerning the rule of law, fair elections, and a peaceful transfer of power. Democracy is ultimately based on trust, and Donald Trump has single-handedly compromised our faith in our system of governance. There is no easy fix for his treachery.