Those who support democracy are not as prepared or as focused as those who seek to subvert it.
In the six months since I wrote those words, I have received countless questions about election subversion: what it is, how to combat it and what role federal and state governments play in fighting it.
Often the people asking me these questions begin by talking about voter suppression – efforts to prevent people from registering to vote, obtaining their ballots and voting – but really what they fear is election subversion – how ballots are counted and how elections are certified. They immediately then ask, “What can the federal government do? Can Congress pass a ‘simple’ — perhaps even bipartisan — law to prevent this subversion?” The short answer is no, they can’t. Like clockwork, the discussion turns to the Electoral Count Act – a law dating back to 1887 that governs how the Electoral College results are received and tallied in Congress.
When I try to explain that combating subversion is more complicated than simply reforming one archaic law, people are disappointed and often discouraged. But we cannot afford to be discouraged. We do not have that luxury. The fight for our democracy is urgent and requires each and every one of us to play a part.
The 2020 election — and more importantly, its aftermath — showed us just how far Republicans are willing to go to disregard the will of the voters. While we watched the violent insurrection at the nation’s capital on Jan. 6 in horror, too many Republicans did not. Many of us hoped that this attack would represent a turning point in how our country views — and treats — free and fair elections. But in the year and a half since, Republicans have made clear that they view that horrific day as the starting point for 2022, 2024 and beyond.
For decades, voting rights lawyers and activists have zeroed in on the beginning of the voting process, with many of them focusing in particular on voter registration. This is understandable given that securing the right for Black Americans to simply register to vote was central to the historic civil rights movement in the 1960s. Since then, the fight for voting rights has broadened to also include obtaining a ballot and the act of voting. Once voters cast their votes, it is assumed by most that the war against voter suppression has been won. But, as we saw in 2020, it doesn’t end there.
Prior to litigating pre-election voting rights cases, I was known mostly for focusing on the other end of the electoral process — recounts and election contests. In those cases, the focus was on how ballots are challenged, counted and certified. In that role, I’ve seen how Republicans use what happens before and during the election to try to subvert the results in their favor. In the weeks after the 2020 election, my team and I successfully litigated 64 cases against Trump and his allies while losing only one.
Contrary to what some argue, I don’t expect Republican election officials to blatantly ignore the election results and declare that the candidate who received fewer votes has won. The Republican election subversion plan is more sophisticated than that. Instead, I expect Republicans to use false allegations of fraud as a pretext to remove ballots from the vote totals and then certify those incomplete results.
To accomplish this, Republicans — before an election takes place — will seek to sow doubt in the legitimacy or integrity of the ballots they aim to challenge. Maybe they’ll say that ballots cast in a certain kind of drop box are invalid or that ballots collected by third-party organizations are illegal or that voters who were given food and water while waiting in line should have their ballots discarded. The list of potential unsubstantiated claims of voter fraud is endless.
If you think that this is fanciful, then you were not paying attention to what happened after the 2020 presidential election and to what Republican state legislatures have done in the meantime. After losing to now-President Joe Biden, Trump, with the help of his Republican allies, went from state to state with the sole goal of discarding hundreds of thousands of votes to secure the presidency for himself.
In Wisconsin, Trump sought to invalidate 170,000 votes — every mail-in ballot in Dane and Milwaukee counties — because he claimed that the application form used in those heavily-Democratic counties (as well as the rest of the state, which he did not challenge) was technically flawed. In Pennsylvania, he sought to throw out nearly seven million votes after claiming that virtually every aspect of the election was tainted by illegality. There was no evidence that any of the voters in Wisconsin or Pennsylvania were ineligible to vote nor that they did anything wrong. Rather, it was simply an effort to create controversy around large numbers of votes as a pretext to remove them from the totals that the state would certify.
It should come as no surprise that Republicans in states across the country are already applying Trump’s 2020 blueprint to 2022 and 2024. After the 2020 election, nearly half of the Republican state legislators in the nine states where the election was most narrowly decided – think Michigan, Wisconsin, Pennsylvania – tried to overturn the results. In addition to introducing 229 election subversion bills in 33 states, Republicans have been laying the groundwork to challenge legally-cast ballots in two major ways. First, they have focused on changing the personnel who are responsible for certifying election results on state and local levels. Second, they have passed a wave of laws aimed at bolstering their own claims of voter fraud to be used to disqualify otherwise legal ballots.
Take a simple example — a ban on giving food and water to people waiting in line to vote in Georgia. While it is true that laws like Senate Bill 202 are a form of voter suppression as they make it less appealing to wait in line to vote, they are also set up to be tools of election subversion. By criminalizing the benign practice of handing a bottle of water to a thirsty person waiting in the hot sun to vote, Republicans will argue that any ballot cast by a voter who receives food or water while waiting in line is illegal. This is how a simple voter suppression law becomes the pretext by which ballots are removed from the count and elections are subverted.
So how do we prevent this subversion from happening? First and foremost, we must elect pro-voting rights candidates into election offices — not just secretaries of state, but local elected officials as well. Equally important, we must expose these efforts and deprive Republicans of the tools needed to suppress the vote. Election subversion should be getting just as much, if not more, attention than voter suppression. Whether it’s writing a letter to the editor, speaking up at your local community meeting or calling your elected representatives, we need people to sound the alarm on the next phase in Republicans’ ongoing assault on our democracy. When all else fails, we take them to court.
After comprehensive voting rights legislation like the Freedom to Vote: John R. Lewis Act failed to pass, it’s clear that the war against election subversion is not going to be waged in the halls of Congress. It will be fought in state, county and local election offices and decided in courthouses across the country. Republicans are ready for this — they have the extensive and well-funded operation needed to subvert elections and fight these battles. We see it every day in the morning newspaper and on the nightly news. The real question is whether our democratic institutions can weather the assault that is sure to come.