The greatest threat to American democracy today is not a repeat of January 6, but the possibility of a stolen presidential election. Contemporary democracies that die meet their end at the ballot box, through measures that are nominally constitutional. The looming danger is not that the mob will return; it’s that mainstream Republicans will “legally” overturn an election.
In 2018, when we wrote How Democracies Die, we knew that Donald Trump was an authoritarian figure, and we held the Republican Party responsible for abdicating its role as democratic gatekeeper. But we did not consider the GOP to be an antidemocratic party. Four years later, however, the bulk of the Republican Party is behaving in an antidemocratic manner. Solving this problem requires that we address both the acute crisis and the underlying long-term conditions that give rise to it.
Addressing the short-term threat
Last year, for the first time in U.S. history, a sitting president refused to accept defeat and attempted to overturn election results. Rather than oppose this attempted coup, leading Republicans either cooperated with it or enabled it by refusing to publicly acknowledge Trump’s defeat. In the run-up to January 6, most top GOP officials refused to denounce extremist groups that were spreading conspiracy theories, calling for armed insurrection and assassinations, and ultimately implicated in the Capitol assault. Few Republicans broke with Trump after his incitement of the insurrection, and those who did were censured by their state parties.
From November 2020 to January 2021, then, a significant portion of the Republican Party refused to unambiguously accept electoral defeat, eschew violence, or break with extremist groups—the three principles that define prodemocracy parties. Because of that behavior, as well as its behavior over the past six months, we are convinced that the Republican Party leadership is willing to overturn an election. Moreover, we are concerned that it will be able to do so—legally. That’s why we serve on the board of advisers to Protect Democracy, a nonprofit working to prevent democratic decline in the United States. We wrote this essay as part of “The Democracy Endgame,” the group’s symposium on the long-term strategy to fight authoritarianism.
As we argued in How Democracies Die, our constitutional system relies heavily on forbearance. Whether it is the filibuster, funding the government, impeachment, or judicial nominations, our system of checks and balances works best when politicians on both sides of the aisle deploy their institutional prerogatives with restraint. In other words, when they avoid applying the letter of the law in ways contrary to the spirit of the law—what’s sometimes called constitutional hardball. When contemporary democracies die, they usually do so via constitutional hardball. Democracy’s primary assailants today are not generals or armed revolutionaries, but rather politicians—Hugo Chávez, Vladimir Putin, Viktor Orbán, Recep Tayyip Erdoğan—who eviscerate democracy’s substance behind a carefully crafted veneer of legality and constitutionality.
This is precisely what could happen in the next U.S. presidential race. Elections require forbearance. For elections to be democratic, all adult citizens must be equally able to cast a ballot and have that vote count. Using the letter of the law to violate the spirit of this principle is strikingly easy. Election officials can legally throw out large numbers of ballots on the basis of the most minor technicalities (e.g., the oval on the ballot is not entirely penciled in, or the mail-in ballot form contains a typo or spelling mistake). Large-scale ballot disqualification accords with the letter of the law, but it is inherently antidemocratic, for it denies suffrage to many voters. Crucially, if hardball criteria are applied unevenly, such that many ballots are disqualified in one party’s stronghold but not in other areas, they can turn an election.
Republican officials across the country are laying the legal infrastructure to do just that. Since January, according to Protect Democracy, Law Forward, and the States United Democracy Center, Republicans have introduced 216 bills (in 41 states) aimed at facilitating hardball electoral tactics. As of June, 24 of these bills had passed, including in the battleground states of Arizona, Florida, Georgia, and Texas. Approved measures allow Republican-controlled state legislatures or election boards to sideline or override local election administrations in Democratic strongholds. This would allow state legislatures or their appointees to meddle in local decision making, purge voter rolls, and manipulate the number and location of polling places. It would also allow Republicans in Arizona, Georgia, and elsewhere to do something Trump tried and failed to do in 2020: throw out ballots in rival strongholds in order to overturn a statewide result. Finally, the new laws impose criminal penalties for local election officials deemed to violate election procedure. This will enable statewide Republican officials to compel local officials, via threats of criminal prosecution, to engage in electoral hardball. Throwing out thousands of ballots in rival strongholds may be profoundly antidemocratic, but it is technically legal, and Republicans in several states now have a powerful stick with which to enforce such practices.
Republican politicians learned several things in the 2020 election’s aftermath. First, Trump’s failed campaign to overturn the results revealed a variety of mechanisms that may be exploited in future elections. Second, Republicans discovered that their base would not punish them for attempting to steal an election. To the contrary, they now know that efforts to overturn an election will be rewarded by Republican voters, activists, local and state parties, and many donors.
The 2020 election was, in effect, a dress rehearsal for what might lie ahead. All evidence suggests that if the 2024 election is close, the Republicans will deploy constitutional hardball to challenge or overturn the results in various battleground states. Recent history and public-opinion polling tell us that the Republican activist base will enthusiastically support—indeed, demand—such tactics. The new state election laws will make that easier. Democratic strongholds in Republican-led swing states will be especially vulnerable. And if disputed state-level elections throw the election into the House of Representatives, a Republican-led House would likely hand the presidency to the Republican candidate (no matter who actually won the election).
The American system has faced crises before—including the disputed elections in 1824, 1876, and 2000. Given the considerable authority that the Constitution grants to state legislatures, the processes of voting, vote counting, and even the selection of electors can easily be subverted for partisan ends. Electoral guardrails must therefore be hardened through federal legislation prior to the 2024 election.
To save democracy, democratize it
Beyond the acute crisis facing American democracy, however, is a deeper problem: the radicalization of the Republican Party. Unless and until the GOP recommits itself to playing by democratic rules of the game, American democracy will remain at risk. Each national election will feel like a national emergency. Therefore, the de-radicalization of the Republican Party is a central task for the next decade.
Normally, in a two-party democracy, if one party veers off course, it is punished at the ballot box. Electoral competition is thought to be a natural corrective for political extremism: Parties that stray too far from the average voter’s positions lose votes, which compels them to moderate and broaden their appeal to win again. When a professional sports team loses, it fires its coach, acquires new players, and regroups. The same should hold for political parties. Indeed, if you ask moderate or Never Trump Republicans what will get Republicans back on course, they will almost invariably answer “devastating electoral defeat.”
They may be right. There is a hitch, however: Competition’s effects are being undermined in the U.S. today by what political scientists call countermajoritarian institutions. We believe that the U.S. Constitution, in its current form, is enabling the radicalization of the Republican Party and exacerbating America’s democratic crisis. The Constitution’s key countermajoritarian features, such as the Electoral College and the U.S. Senate, have long been biased toward sparsely populated territories. But given that Democrats are increasingly the party of densely populated areas and Republicans dominate less populated areas, this long-standing rural bias now allows the Republican Party to win the presidency, control Congress, and pack the Supreme Court without winning electoral majorities. Consider these facts:
- Republicans have won the popular vote for the presidency only once since 1988, yet have governed the country for nearly half of that period.
- The Democratic and Republican Parties each control 50 seats in the U.S. Senate, even though Democratic senators represent 40 million more voters than do Republican senators.
- The three justices who most recently joined the Supreme Court were appointed by a president who did not win the popular vote—and were confirmed by Senate majorities that did not represent a majority of Americans.
Countermajoritarian institutions shield Republicans from genuine competition. By allowing Republicans to win power without national majorities, this constitutional welfare allows the GOP to pursue extremist strategies that threaten our democracy without suffering devastating electoral consequences. Most Americans oppose most of the Republicans’ current positions. But if we do not reform our democracy to allow majorities to speak, expecting the GOP to change course would be naive.
Americans tend to view countermajoritarian institutions as essential to liberal democracy. And some of them are. In the United States, the Bill of Rights and judicial review help ensure that individual liberties and minority rights are protected. But many of our countermajoritarian institutions are legacies of a pre-democratic era. Where they pervade the electoral or legislative arenas, they do not protect minority rights so much as empower partisan minorities and, in some cases, enable minority rule.
To save our democracy, we must democratize it. A political system that repeatedly allows a minority party to control the most powerful offices in the country cannot remain legitimate for long. Following the example of other democracies, we must expand access to the ballot, reform our electoral system to ensure that majorities win elections, and weaken or eliminate antiquated institutions such as the filibuster so that majorities can actually govern. Congress is considering limited democratizing reforms, such as banning legislative gerrymandering. But those proposals pale in comparison with the extent of the problem.
Serious constitutional reform may seem like a daunting task, but Americans have refounded our democracy before. After the Civil War and during the Progressive era and the civil-rights movement, political leaders, under pressure from organized citizens, remade our democracy. Always unfinished, our Constitution requires continuous updating. American democracy thrived because it allowed itself to be reformed. Given the scale of the threat, reforming our democracy over the next decade is among the most pressing challenges we face today.