Republicans protested. Senator Mitt Romney of Utah complained: “Donald Trump is down the same path, trying to legitimize the election.”
But Trump and Biden’s paths are not the same. They point in opposite directions.
In other words, Trump tried unsuccessfully to substitute illegal election results for legitimate election results; his allies aimed to improve their chances of succeeding next time. Biden seeks safeguards against illegal outcomes in the upcoming election.
That doesn’t make the current president’s comments about 2022 sensible. First, every contemporary and historical marker of the political situation points to a fair and legitimate Republican victory, even if new state-level Republican laws are not passed.
The laws are designed to limit the registration and voting processes that have helped Democrats in the 2020 election as turnout is hurt by the pandemic. But even targeting them “with surgical precision,” as Democratic Sen. Amy Klobuchar of Minnesota put it last week, may not overcome this “voter suppression” reactionary effort. Fire often. In any case, Democrats have exaggerated their influence, some election law experts say.
“At some point, voter suppression was so extreme that the legitimacy of the election was called into question,” said Rick Hasson, a professor of law and political science, president of the UC Irvine School of Law. “But none of these laws came close to that.”
GOP steps toward “electoral subversion” — making it easier for party officials to alter results by disqualifying legal votes — pose a bigger threat. However, this is especially important in the 2024 presidential race as states prove their electoral vote winners.
The danger of warning of “illegal” elections lies in undermining public confidence and the democratic process that Biden wants to strengthen. Meanwhile, Trump and his Republican allies clearly intend to undercut them.
“Democrats are right to complain about voter suppression and electoral subversion,” said Nathaniel Persili, a Stanford law professor who worked on the President’s Board of Elections during the Obama administration. “But we need to be very careful about how we use words like ‘illegal’.
“How do you sound the alarm without questioning the results? It’s very difficult. But now it’s a critical needle.”
American democracy has long been a role model for the world. But some U.S. elections, as expressions of public opinion, are unquestionably illegal.
Democratic election lawyer Marc Elias cited the races in southern states prior to the passage of the Voting Rights Act. It’s not because the votes were cast inaccurately; it’s because the mass disenfranchisement of black Americans makes it impossible for them to vote at all.
That doesn’t exist anymore. The trend in states in recent decades has been to make it easier for everyone to vote through easier registration, early voting periods and voting by mail.
But Republicans are uneasy about the trend, as demographic shifts have eroded the influence of their white electoral base, helping Democrats win the popular vote in seven of the past eight presidential elections.
For example, in 2018, Florida voters approved a ballot initiative to restore voting rights to felons who have served their sentences. The following year, at the behest of Trump ally Gov. Ron DeSantis, the Republican-controlled legislature pared the initiative’s impact by rehabilitating felons who were disproportionately black and poor. Rights, subject to payment of outstanding court costs, fines or damages.
The new state law after Trump’s defeat reflects the same urge to limit the vulnerability of the Republican Party. There is no similar Democratic effort to raise voting barriers or upend election management for Republican-leaning districts.
That’s why even pundits who criticize Biden’s rhetoric about legality can’t control comparisons to Trump.
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