Election Deniers Set Their Sights on Democracy

There's still a lot to be done to shore up our election systems

By Paul Rauber

September 22, 2022

Top of the US Capitol building, with an American flag flying out front and a cloudy sky overhead.

Photo by Bryan Olin Dozier/NurPhoto via AP

Former president Donald Trump's coup attempt didn't end when Capitol janitors cleaned up the bloodstains and broken glass, or with the prosecutions of hundreds of low-level insurrectionists, or even with the riveting January 6 committee hearings. Trump's efforts to overturn the democratic system in the United States are still gathering steam, and we are careening toward a fateful reckoning in 2024.

Trying to forestall that day is Rick Hasen, a law professor and legal scholar at the University of California, Los Angeles, who is as close to a celebrity as the field of election law has to offer. (He scores a 10 from Twitter's "Room Rater" for his well-lit surroundings, interesting bookcase, and colorful modern art, the background to innumerable Skype interviews.) His first challenge is convincing a weary public that our democracy is on a knife's edge.

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"I think there was a lot of fatigue after the Trump presidency, which also came in the middle of a pandemic," says Hasen, who sounds rather fatigued himself as he recovers from COVID. "A lot of people withdrew from public concern and public life. But for those of us who focus on these issues, the risks are very real."

Among those risks are scores of election-denier political candidates who support Trump's lie that he won the 2020 election, making them questionable guardians of a fair vote in 2024. As of late summer, more than 100 had either won nomination or advanced to runoffs prior to the November 2022 midterms. These include Jim Marchant, the Republican nominee for secretary of state in Nevada, who says that he would not have certified Biden's victory; Mark Finchem, the GOP secretary of state nominee in Arizona and a member of the Oath Keepers militia; Kristina Karamo, Michigan's Republican candidate for secretary of state, who claimed that Dominion voting machines flipped ballots for Biden; and Doug Mastriano, the Republican nominee for governor in Pennsylvania, who attended Trump's "Stop the Steal" rally on January 6 and has boasted that he could "decertify every [voting] machine in the state with the stroke of a pen."

"These are things I never thought I would have to worry about in the United States."

"My biggest concern about 2022 is that it will help to choose some people who will be in charge of running elections in 2024," Hasen says. America has never before had to deal with secretaries of state pledged to a particular candidate or party. On a more local level, Trump adviser Steve Bannon and others are seeking to recruit poll workers who believe the false claims that the 2020 election was stolen. The US electoral system presupposes officials of good faith, and "there are lots of places where people not acting in good faith could mess with the system," Hasen explains.

Just look at the advantages bad faith has won. Instead of voters picking their politicians, blatant gerrymandering allows politicians to pick their voters. States can freely make it harder for certain groups to vote (in July, the Wisconsin Supreme Court outlawed ballot drop boxes). Political disinformation thrives to the extent that three-quarters of Trump voters still believe he won the last election. And now the Supreme Court has taken up a case called Moore v. Harper, elevating a fringe and extreme theory that state legislatures can overrule state and federal judges, governors, and even their own state constitutions when it comes to election law. The Supreme Court's endorsement of this theory could legalize the scheme advocated by John Eastman, Trump's election-subversion mastermind: to have Trump-friendly legislatures in states won by Biden simply ignore the voters and declare Trump the winner.

"The crucial thing is the next step," Maryland representative Jamie Raskin told the January 6 committee in July, "what all of us will do to fortify our democracy against coups, political violence, and campaigns to steal elections from the people."

Many are taking up that challenge, including the Sierra Club's own Democracy Program, which works with partners and lawmakers to protect and strengthen our election processes. Hasen has launched (in conjunction with the UCLA School of Law) an election-integrity effort called the Safeguarding Democracy Project. At any other time, such a moniker might come across as grandiloquent, but now it's just straightforward. "These are things I never thought I'd have to worry about in the United States," he says, "but unfortunately that's where we are."

Hasen is insistent that safeguarding democracy has to be a cross-partisan effort. The advisory board of his pro­ject includes prominent Republican attorney Benjamin Ginsberg, who played a key role in the 2000 Florida recount, and former federal judge J. Michael Luttig, who helped Clarence Thomas get on the Supreme Court but also testified before the January 6 committee, where he called Trump and his allies "a clear and present danger to American democracy."

"We brought together people who come from very diverse backgrounds and ideologies," says Hasen. "On things like immigration, taxes, or the environment, you probably wouldn't find a lot of consensus. But what brings us together is a concern about continued free and fair elections in the United States and a desire to assure the peaceful transition of power."

Practically, there's a lot that can be done between now and November 2022 (and 2024) to shore up our tottering democratic edifice. A bipartisan group of senators introduced legislation to update and simplify the Electoral Count Act of 1887, whose notorious ambiguities Eastman tried to exploit. The Disclose Act would help rein in dark money, which topped over $1 billion in the last election cycle. Other nonpartisan reforms that pro-democracy legislators might make, suggests Hasen, include requiring voting machines to issue paper ballots, increasing criminal penalties for tampering with federal elections or intimidating election workers and voters, and forbidding disinformation about when, where, and how people vote.

Election activists like those in the Sierra Club are focused on the issue, but Hasen worries about a lack of urgency from President Biden and the Democratic leadership on the issue. "Anti-election-subversion legislation should have been at the top of the list right after the second impeachment of Donald Trump," he says. Even so, election protection "is not an on-off switch. The more you can do to minimize the risks of the election being stolen, the better off we're going to be."

This article appeared in the Fall 2022 quarterly edition with the headline "Election Protection."