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How to Defend American Democracy
Moving beyond warnings to concrete actions
This entry in Nicholas Grossman’s newsletter is open to all. To get full access to all posts, subscribe.
To understand the violence at the Capitol building a year ago on January 6, you have to put it in the context of then-president Donald Trump’s unprecedented attempt to stay in power after losing reelection. As a still-rising mountain of evidence shows, Team Trump’s plotting was extensive, aimed at disrupting the legal transfer of power any way they could. Lying about election results, lying about fraud, filing bad faith lawsuits, pressuring the Justice Department to open baseless investigations, pressuring state officials to “find” enough votes for Trump to win, and preventing Congress from recognizing the Electoral College results on Jan. 6 were all part of that.
Trump and supporters of his attempted coup — technically autogolpe, or self-coup, in which a leader tries to stay in office after the law requires him to leave—focused on that vote in Congress. Some Republicans, including Senator Ted Cruz, called for a 10-day delay to investigate accusations of fraud they surely knew were false. Trump and various allies tried to get Vice President Mike Pence to reject Electors from some states Trump lost (which the vice president does not have the power to do). The president told supporters to come to D.C. that day to “stop the steal” and told rally-goers to march to the Capitol.
We don’t know if Trump and his fellow plotters explicitly intended to stoke a violent riot, but that’s a tree in the forest. We know it wouldn’t have happened if Trump hadn't lied about the election. We know he didn’t do anything to stop it for hours, even as people close to him (Fox News hosts, Donald Trump Jr.) implored him to. And we know how obstructing the vote fit into coup plans.
If Congress doesn’t carry out the up-til-now rubber stamp of recognizing Electoral College results, then arguably there’s no official majority. If there’s no officially recognized Electoral College majority, the election goes to the House, where the rules say each state delegation gets one vote, rather than each individual Representative. Since 26 out of 50 House delegations are majority-Republican, they could have thrown the election to Trump. At minimum, that would have put the country in uncharted territory, creating uncertainty Trump could exploit to further his effort. More drastically, any protests against the manipulated Congressional vote could’ve been an excuse to deploy troops, as advisors such as retired general Michael Flynn were urging.
The most concerning aspect of all this is not the riot itself — which could’ve been even worse — nor the attempted coup that caused it, it’s the Republican Party’s reaction. Throughout 2021, the GOP minimized or even embraced the Capitol attack, shunning the few Republicans who wouldn’t let it slide (most notably Rep. Liz Cheney). Leading conservative media figures, such as Tucker Carlson, push conspiracy theories about it, and a majority of Republican voters say the attackers were “defending democracy.” Right-wing activists, spurred on by 2020 coup-plotter Steve Bannon and others, are sending death threats to election workers and trying to take over those jobs where they can. Multiple Republican-controlled state legislatures gave themselves more power over election administration as sponsors vowed to fight the fraud that Donald Trump made up. All this amounts to a group effort to remove the institutional guardrails and rule-following individuals that thwarted Trump’s coup attempt, making a future effort more likely to succeed.
One positive: mainstream discourse is finally catching up. The Atlantic devoted an issue to January 6 and the ongoing threat to American democracy, including a harrowing article by Barton Gellman, a writer whose 2020 warnings proved prescient. NPR ran a piece by Melissa Block, “The clear and present danger of Trump’s enduring ‘Big Lie,’” that didn’t hedge by attributing concerns to Democrats or trying to assuage Republicans. For its New Years 2022 editorial, bastion of “both sides” journalism The New York Times pulled no punches, using the term “self-coup,” and stating that the United States “faces an existential threat from a movement that is openly contemptuous of democracy and has shown that it is willing to use violence to achieve its ends.”
These articles usually stop there, describing Republican preparation to subvert future elections without recommending responses. Asked about this on the Bulwark podcast, Gellman told host Charlie Sykes he aimed to cover what’s happening and raise awareness. That’s an important first step. But the ultimate point of raising awareness is to get people to recognize a serious problem and act.
In that spirit, I offer this breakdown of the attack on American democracy and some ways that we — by which I mean the pro-democracy American majority — can respond. I didn’t want this to happen, but it’s happening, so we have to deal with it.
First, this is about national power. We’re dealing with people who fundamentally do not believe in Constitutional democracy, including the acceptance of electoral loss. Whether opposed to democracy on principle or caught up in a persecution complex that rationalizes undemocratic measures, the effect is the same. Though they may sometimes follow institutional rules, that’s merely strategic; they do not respect them, and will cheat if they can. A traditional horserace frame is the wrong way to see this. It’s a contest beyond the normal rules — a fight over the rules themselves.
Second, this takes precedence over policy fights. Government policy matters a lot, impacting many lives. But democracy is how we manage disagreement over contentious issues in this large, diverse country. Every pro-democracy American, no matter their policy views, is welcome to help. This is a fundamentally nonpartisan effort — though forced to take sides until the Republican Party returns to its pre-Trump commitment to the Constitution — and must not be bogged down by anything else. With stakes this high, we need all the help we can get.
Third, everything we do must adhere to the laws and norms of Constitutional democracy. If our opponents do not, and that gives them an advantage, so be it. Breaking the rules, or manipulating them with lies, undermines confidence in the system, no matter the reason. To defend democracy, we have to work within it.
The threat to American democracy is real, but that doesn’t mean it’s likely to succeed. As in 2020, there’s a decent chance the effort fails, as enough people in relevant positions refuse to go along with it and courts reject baseless claims. But the probability it works isn’t as close to zero as any supporter of the Constitution should find comforting. The lawsuits will be more prepared, some election officials more willing. And as the violence of January 6 and ongoing threats to election workers show, efforts to overthrow democracy can hurt the country, even if they ultimately fail.
The good news this time is the executive branch. There’s no risk of the sitting president threatening state officials, manufacturing investigations, or telling the vice president to claim election-deciding powers. There are, however, increased risks in other areas, especially at the state level.
We can’t stop Republicans from attempting the election subversion they’ve spent the last year setting up, but we can anticipate it, preemptively cut off avenues for it, and prepare to counter the parts we can’t stop in advance. Here’s how:
Win the 2024 Presidential Election
If Donald Trump or someone following in his footsteps wins the White House in 2024, that’s a different sort of problem. Trump’s presidency marked a period of democratic backsliding, similar to that seen in Turkey, Hungary, and Poland, where a leader wins office democratically and then abuses power to erode institutional checks-and-balances and manipulate future elections. A second Trump term would almost certainly bring more of that, along with another attempt to stay in power beyond legal limits, subverting American democracy from within.
But winning a fair election is a legitimate Constitutional outcome, and pro-democracy Americans are bound to respect it, much as Hillary Clinton and Barack Obama recognized Trump’s win right after the 2016 election, despite various concerns. If the Republican nominee wins, Republican efforts to subvert the outcome are a moot point.
Hold at Least One House of Congress
Under current rules, rejecting a state’s Electors requires majority votes in both houses of Congress. With a pro-democracy, pro-truth coalition controlling either the House or Senate, lie-based attempts to stop or delay the process won’t succeed.
For this reason, as New York magazine’s Ed Kilgore argues, Democrats should see 2022 Congressional elections through the lens of 2024. Historically, the party that doesn’t hold the White House gains seats in the midterms, but even if Republicans win, keeping it close in 2022 makes 2024 easier.
I’ll leave debates over how to win Congressional elections to campaign strategists, except for one thing: I said “pro-democracy coalition” rather than “Democrats,” because there are still a few Republicans who stand up for democracy, and even a little bipartisanship adds to public perceptions of legitimacy. In particular, Democrats should help Liz Cheney get reelected in Wyoming.
The House Republican caucus stripped Cheney of a leadership position because she wouldn’t go along with their effort to downplay Jan. 6, and the Wyoming Republican Party kicked her out. Presumably, the Republicans will nominate someone else for Congress in 2022, and if Cheney wants to run as an independent, Democrats shouldn’t field a candidate. A Democrat winning in Wyoming would be difficult anyway, and Cheney has proven an outspoken defender of American democracy, including as vice chair of the committee investigating Jan. 6. No matter what one thinks of Cheney’s record or policy preferences, having her in Congress instead of a Trumpist Republican will help.
With Republicans likely to gain control of at least one house of Congress in the midterms, the window to reform election laws is closing. The low-hanging fruit is the Electoral Count Act, the 1887 law Congress was executing on January 6. Clarify the vice president’s role and raise the threshold for objections, which currently allow a single Senator and Representative to force debate (a la Ted Cruz).
Another relatively easy option is updating the criminal code, making unethical but legally ambiguous activity explicitly illegal, and raising the penalties for obstructing the electoral count in Congress. Any part of the coup attempt that was technically not illegal — because no one tried anything like it before, so no one thought it needed outlawing — should come under scrutiny. The Jan. 6 committee is reportedly considering recommendations along these lines, and if they do, Congress should prioritize it immediately.
If they can pass these changes in a big voting rights bill that includes measures addressing voter suppression, partisan gerrymandering, and other problems, great. But since most Republicans oppose those measures, and a few key Democrats oppose changing filibuster rules to allow a simple majority to pass bills through the Senate, that will be difficult. Unless a big bill stands a good chance of success, Democrats should break up electoral reforms into small, focused bills.
Congressional Republicans may be open to a tailored Electoral Count Act reform, which would spare them risks to their personal safety when counting Electoral College votes in 2024. Some conservatives, such as the editors of the Washington Examiner, support ECA reform, and polls show the public does too.
Maybe Congressional Republicans, aware that their party aims to misuse electoral laws to gain power undemocratically, will unite in opposing changes to the ECA. But it would still be worth trying. Passing these reforms would be ideal, but as The Washington Post’s Greg Sargent argues, bringing them up for a vote will “raise the question of whether Republicans would support such a move.” If they don’t, that clarifies the issue for the public.
And that’s doubly true for revisions to the criminal code. For example, Republicans might support substantial penalties for violence or intimidation of election workers. Ideally, a bill narrowly focused on that would pass. But if any member of Congress prefers to stand up for people issuing death threats, political opponents should be able to make use of it.
State Election Administration
The opportunities to address the threat with federal legislation are limited, because the biggest concern is in the states. If states send the “right” Electors, then members of Congress don’t have to reject them. If states internally dispute their results and send two slates of Electors, Congress or courts could declare the results unknowable, potentially sending the election to the House (where Republicans will likely have an advantage).
There are two ways to do that if the “wrong” (i.e. Democratic) candidate gets more votes. One, throw out enough votes so the Republican leads in the state-recognized total. Two, have state legislatures overrule voters.
Inside the conservative media bubble, election officials who did their job with integrity, most notably Georgia Secretary of State Brad Raffensperger, are villains. Around the country, Trumpists are running for positions that oversee election administration, openly vowing to manipulate them. For example, on Steve Bannon’s popular podcast, Nevada Secretary of State candidate Jim Marchant said there is a “coalition of America First Secretary of State candidates around the country” working “behind the scenes to try to fix 2020 like President Trump said.”
Most concerningly, Republicans in purple states with a lock on the state legislature — gerrymandering and population concentrations give them more seats even when they win fewer votes — took power over election administration from county and statewide officials. Georgia was a bellwether, as the GOP-dominated state legislature gave itself power to replace county election boards, including positions that play a role in adjudicating accusations of voter fraud, as sponsors openly said they would have used the powers to help Trump in 2020 if they had them.
In 2021, Georgia used this law to change the boards in six counties, and launch politicized reviews of urban areas that voted for Biden. In Spalding County, for example, they removed three Democrats (all Black women) from a five-member panel and replaced them with Republicans (all white). On social media, the new chair of the Spalding panel has expressed support for Trump’s lies about voter fraud. If the Democratic candidate wins Georgia again in 2024, there’s a good chance some of these election officials use false claims of fraud to toss legitimate votes.
Countering these efforts won’t be easy. Individual citizens can run for these offices, volunteer as election workers, and vote strategically for secretaries of state (or whichever positions oversee elections, it varies by state), backing the most competitive candidate of either party against any Big Lie purveyors. The Democratic Party should prioritize these races, recruiting talented candidates, funding their campaigns, and emphasizing the importance in get-out-the-vote efforts.
But that still leaves the problem of state governments overruling their voters. Some tried to do that in 2020 (e.g. Michigan), but they weren’t ready, and acted too late, or too haphazardly, to gain traction. Since then, some conservative attorneys and Republican politicians have promoted the “independent state legislature doctrine.” Article II, Section I of the U.S. Constitution says “Each State shall appoint [Electors], in such Manner as the Legislature thereof may direct.” The doctrine takes the traditional understanding that this refers to state laws, and reinterprets it to mean state legislatures acting on their own. Since legislatures overruling voters isn’t explicitly forbidden, the argument goes, they can do it, no matter how undemocratic or unprecedented it may be.
As Barton Gellman notes, four Supreme Court “justices — [Samuel] Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas — have already signaled support” for a version of this doctrine. It’s not clear how far they would take it, or if a fifth justice (Amy Coney Barrett?) would join them. But while the judiciary did the right thing in 2020, it’s important to recognize that Trump’s lawsuits were so weak, with such blatant lack of evidence, that the courts weren’t really tested. If they had a legal pretext, and knew their actions would decide the presidency, maybe they’d still side with the core democratic principle that voters decide elections. Or maybe they’d rule in favor of state legislatures.
Pro-democracy election lawyers should prepare to counter these arguments, if they aren’t already. Pro-democracy citizens in states that allow ballot measures, such as Wisconsin, can gather signatures to ask voters something like “should all of our state’s Electoral College Electors go to the presidential candidate who wins the state’s popular vote?” Even if non-binding (as citizen-sponsored ballot measures are in Wisconsin), it would strengthen the case against legislatures overruling voters.
To counter both vote-tossing and voter-overruling schemes, pro-democracy Americans should vote in large numbers. Needing more than a simple plurality to ensure victory isn’t fair, which is understandably frustrating, but the bigger the margin, the harder it will be to overturn.
Hold Conspirators Accountable
This one’s straightforward. Anyone who participated in the autogolpe attempt that doesn’t face consequences will be encouraged to try again, while legal punishment creates a disincentive and marks the action as wrong.
By the end of 2021, the Department of Justice had indicted over 700 people for actions on January 6, securing numerous guilty pleas and convictions, including for conspiracy charges against some members of the Oath Keepers militia. The criminal investigation will keep growing, but whether any political leaders will be charged is an open question.
The Jan. 6 Committee is reportedly considering recommending prosecutions for criminal obstruction of a Congressional proceeding. It’s crucial that DOJ act within the confines of the law, using normal prosecutorial discretion to refrain from bringing charges unless there’s a good chance of conviction. Beyond that, holding back — perhaps out of concern that Trump supporters would be angry — would be a serious mistake.
Like The Week’s Damon Linker, I’m skeptical that journalists can save democracy, and worry that trying could backfire. In particular, reporters and analysts shouldn’t go easy on Biden on the grounds that his political success will stop Trump.
What they should do is prioritize truth. Don’t treat lies as equal to facts, don’t act as a mouthpiece for known liars, and don’t frame voter suppression or election subversion as normal political strategy.
On balance, mainstream media has done a good job with January 6, treating it as serious and presenting the facts as they develop. If anything, media criticism gets too much emphasis, and democracy defenders would be wise to see media more as a feature of the playing field than an ally on it. Whatever improvements mainstream organizations make probably won’t have much effect, given the reach of conservative media and alternative sources. But prioritizing truth over a forced balance is still the right thing to do.
Don’t Let the Military Split
Noting that a disturbing number of participants in the Capitol attack had a service record, three retired generals warned in the Washington Post that “the military must prepare now for a 2024 insurrection.” It might not be likely, but the risk isn’t zero, the impact would be huge, and therefore it’s worth taking seriously. Here’s how the generals put it:
The potential for a total breakdown of the chain of command along partisan lines — from the top of the chain to squad level — is significant should another insurrection occur. The idea of rogue units organizing among themselves to support the “rightful” commander in chief cannot be dismissed.
As per their recommendation, the Pentagon should conduct a review of personnel — including for ties to the Oath Keepers and other extremist groups —emphasize the military’s apolitical role, and do more to “guard against efforts by propagandists who use misinformation to subvert the chain of command.”
Stand for Democracy
My final suggestion is something everyone can do: argue for American democracy. In person and on social media, advance a fact-based understanding of what Team Trump did, what the Republican Party has done since, and the serious risk of what could happen in 2024. If democracy matters to you, say so.
There’s a lot of energy on the anti-democracy side, and quite a few of the liars appear inexhaustible. Many pro-democracy Americans are quieter about it, perhaps because they’re busy with other things, because it (and everything else) is exhausting, or because it’s earnest in a way that feels uncool, or they feel like they did their part in 2020. But unfortunately, it’s not over.
It’s hard to confront that, and tempting to think it’ll all work out, that someone else will stop it. But governing institutions aren’t like the laws of physics. They’re fragile human constructions that fall apart if powerful people stop honoring them and others let it slide. So it’s up to us.