Democracy's Saviors: Too Late, and (Not Their Fault) Too Little
by Neil H. Buchanan
I am currently in lockdown with my first bout of Covid-19. It appears that I caught it in Lisbon, where I spent July 12-17 at the (mostly in-person, after two years of Zoom-only) annual meetings of the Law & Society Association. Portugal has been a Covid trouble spot all summer, the conference was a high-risk event, and I was physically run down after traveling for several weeks. It all added up to take me down.
I will say this: Science rocks! My Physician's Assistant told me that, because I am fully vaccinated and boosted, I was in virtually no danger of serious disease or death. She also put me on the now-standard course of Paxlovid, a Pfizer treatment of five days worth of pills to treat people who have caught the virus. I am already feeling great.
Even so, as I explained in a column this past January, written during an illness that turned out not to be Covid-19, being able to say that an illness is "no big deal" is inherently an ex post concept. That is, "it'll most likely be mild and short" is not the same thing as being on the other end without having become the exception. Still, even though I have been suffering through moderate flu-like symptoms (and flu, of course, can also be fatal), the overall experience was amazing, given that this is a deadly, very new disease. Again: Thanks, science!
To preserve my strength as I convalesce, I will limit my remarks today to three thoughts on why Democracy is still doomed, even though there have recently been reasons to hope that we might be spared the worst.
Teaser: My last point is that even a win by Stacy Abrams in this year's Georgia gubernatorial race will be neutralized by Republicans -- not just in terms of Georgia's role as a swing state in 2024 but in every other way.
My thoughts here are mostly inspired by the -- yes -- inspiring work of the January 6th Select Committee of the U.S. House of Representatives. Although I have not watched any of the hearings live (or all the way through, even after the fact), it is impossible not to be impressed by the work of the committee and the compelling presentation of evidence that some of this country's best elected representatives have provided to the public. Surely, one would think, this is a moment for optimism.
It is difficult, however, to see what the committee's work will lead to. Indictments? Maybe even the conviction and imprisonment of several very bad people, including Donald Trump? Perhaps. But because Trump is at worst the disease accelerant and not the disease itself, we will not be vaccinated against White nationalist autocracy by even the best outcomes that might flow from what the committee is doing. If anything, the most malevolent and ruthless would-be dictators waiting in the wings in this country would love to see Trump and his clown-show pushed aside.
What matters is whether the United States as a constitutional democracy, governed by the rule of law and with fair and competitive elections, can survive. I have been saying for years here and on Verdict that it is too late. As much as the January 6th Committee should be cheered for their herculean efforts, even their equivalent of 12 Labors cannot change the course of history.
Beyond my usual litany of reasons for believing that it is all over but the shouting, allow me to note three somewhat-related thoughts regarding some recent developments:
(1) In his Dorf on Law column yesterday, Professor Dorf summarized the proposed revision to the Electoral Count Act (ECA), saying that it and a companion bill are "pretty good." He is surely right about that. He also notes tartly that "the closest thing you'll find to optimism on this blog" is his suggestion that the nine Senate Republicans who have announced their support for the bill are likely to be able to find a tenth, to allow them to break the filibuster. He notes that the nine senators in question are "nothing if not timid," which suggests that they would not have stuck their necks out even this far if they did not believe that they could find a tenth Republican vote.
That is, as Professor Dorf himself made clear, a weak reed indeed. Even so, I suspect that there is no tenth Republican vote, and the other nine are using this process to try to prove that Republicans are willing to negotiate and that those nine in particular are small-d democrats who deserve to be invited onto the political TV shows. They will not suffer any consequences from being part of a failed effort, and I suspect that they will not hesitate to let this fail.
And even if I am wrong about that, there is every reason to believe that nominal-Democrat Joe Manchin will back out at the last minute. Why? Because inflation, maybe. Who cares why? Manchin is as Manchin does.
(2) Even if the new ECA were to pass, I am not confident that it would matter. Professor Dorf offers this:
[E]ven someone who takes a stingier view [than Professor Dorf does] of congressional power under Article II, § 1 should be willing to uphold the most critical provisions of the proposed bill--the ones that make clear that the power of state legislatures with regard to presidential elections must be exercised through laws "enacted prior to election day." Those provisions govern timing, and they would preclude the worst shenanigans that Trump and his allies in state legislatures attempted following the 2020 election.
The infamous (or at least once-infamous) Georgia election law that passed in early 2021 -- the one that resulted in the baseball all-star game being taken out of Atlanta, the one that made it a crime to give water to people waiting in line to vote -- made it possible for the state legislature to replace local elections officials with partisans who would "find" votes as needed. The law did not need to include a line saying, "The Republicans who run Georgia's state government will declare the winner of all future elections," which led gullible fact-checkers (and even once-admirable actors like Gabriel Sterling) to deny that the Republicans' law does what it obviously does.
Similarly, even if the ECA revisions pass as currently written, the "enacted prior to election day" rule will not stop anything like the shenanigans of 2020 from happening again. A state legislature can pass, and -- making the Independent State Legislature (ISL) move unnecessary -- the governor can sign, a law well in advance that puts contingencies into the law that amount to poorly hidden land mines. "This state's electors will be awarded to the presidential candidate who wins a certified majority of the statewide popular vote, unless there is evidence of ...," at which point "the people's elected representatives will convene to determine whether that evidence threatens the public's confidence in the integrity of the Peach State's elections; and if so, the legislature will exercise its best judgment to award electoral votes to the true winner of the election."
I simply do not see how the new ECA rules any of that out. And because it would be couched in the language of responding to supposedly serious allegations of voting irregularities, there would barely be a bad news cycle for the legislature to wait out. Again, states like Georgia and Arizona do not need a favorable Supreme Court ruling on ISL to make this happen, because they have Republican governors working hand-in-hand with their gerrymandered two-house legislative majorities.
(3) Speaking of Georgia, and as I teased above, what if Stacy Abrams were to win the race for governor this year against the man who stole it from her in 2018, Brian Kemp? After all, things are looking pretty good in Georgia for Democrats right now, with a very strong incumbent senator (Raphael Warnock) raising all kinds of money to defeat the best opponent a politician could ask for -- the incoherent liar Herschel Walker. Meanwhile, Abrams -- possibly the most gifted politician of her generation -- might be able to turn out voters in spite of the many roadblocks that the state's Republicans have erected. She could, it seems, win.
Setting aside my point above about the 2021 Georgia law essentially creating a fail-safe for the state's Republicans in every election, what would happen if somehow Abrams's voters were allowed to register and were able to turn out, the votes were counted fairly (or fairly enough for her to win), and the result were certified by election officials? That would be a step in the direction of saving democracy nationwide, would it not?
It would seem so. As I have noted elsewhere, the 2024 road to autocracy might to a large degree depend on the outcomes of the 2022 races for governor in Michigan, North Carolina (if somehow it comes back into play as a swing state in 2024), Pennsylvania, and Wisconsin, All four have permanently gerrymandered Republican majorities in their state legislatures, and all currently have Democrats in their governors' chairs.
If Republicans do not want to have to rely on the Supreme Court giving them the ISL route (which would permit them to ignore governors and empower the legislatures to determine election outcomes), they need to flip at least one of the Michigan/Pennsylvania/Wisconsin triumvirate. That would (assuming other factors that I describe here) mean that the Republican nominee in 2024 could hold everything from 2020 and have Arizona, Georgia, and the Michigan/Pennsylvania/Wisconsin flipper guarantee a win in the Electoral College.
I agree with Professor Dorf that the Supreme Court's Radical 5 are likely to give Republicans the ISL anyway, but what if they surprise us? The point here is that Abrams's potential victory in 2022 would appear to make it necessary for Republicans to flip two of the other three swing states, because she would never sign on to a law along the lines of the one that I described above.
But wait. Note that three of the other states in this discussion are Wisconsin, Michigan, and North Carolina. Completely apart from this discussion of election law, those states saw the most naked power grabs imaginable when their current Democratic governors won their elections.
In those states, the outgoing Republican governors and their perma-majority Republican legislatures spent their lame-duck sessions stripping their governors (and, where necessary, other officers such as state attorney general that a Democrat might have won in a statewide vote) of powers, from traditional and previously uncontroversial matters like appointing the governing boards of the state university system to core executive powers such as appointing the governor's cabinet, administering health care and elections, and carrying out economic policy.
You heard it here first: A Governor Stacy Abrams would take office as the first purely ceremonial state chief executive in American history. She would be prevented -- under laws to be signed by her defeated opponent before he leaves the Governor's mansion in ruins -- from saving the system by which Georgia chooses its slate of electors to the Electoral College, but it would not end there. Every power that could be stripped from her office would be gone in a heartbeat. The state constitution might require that some powers be changed only with super-majorities, but even where that is impossible, the legislature can hamstring the governor with inadequate funding and by packing the state's courts.
So, when Professor Dorf noted that his final point in yesterday's column -- tentative thought it was -- was "the closest thing you'll find to optimism on this blog," he was not kidding.