Democracy Checkup: Preparing for the 2024 Election
May 10, 2024
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Authors Richard Hasen and Lawrence Lessig, along with editor Sarah Isgur, discuss vulnerabilities in the American election system and propose constitutional amendments to enhance election integrity. They delve into topics such as universal voter registration, election security, challenges surrounding the 2024 election, and the Senate's role in judging elections. The conversation highlights the importance of safeguarding voting rights and addressing potential risks in democratic processes.
Congress may need a statute to disqualify votes, highlighting uncertainty in electoral procedures.
Proposed constitutional amendment aims to simplify and strengthen the U.S. election system for fairer processes.
Textualist justices' differing perspectives in Trump v. Anderson underscore the court's lack of clarity on electoral guidelines.
Deep dives
The Uncertainty Surrounding Congress's Power to Disqualify Electoral Votes
The Supreme Court's decision in Trump v. Anderson left uncertainty about Congress's power to disqualify electoral votes if a candidate is deemed an insurrectionist. While some believe a statute is required for such disqualification, others are not so sure. There is a lack of a definitive answer on whether Congress can act under the 12th Amendment or if prior statutes are necessary.
The Need for a Constitutional Amendment to Address Election Systems Flaws
The scenarios discussed highlight the need to simplify the convoluted election system in the U.S. The proposed constitutional amendment aims to favor voters and streamline courts in close cases, ensuring a fairer election process. The patchwork of rules and decentralized system could lead to potential chaos and disenfranchisement, emphasizing the necessity for a constitutional amendment to address flaws in the election system.
Differing Judicial Approaches to Institutional Legitimacy
The diverse approaches of textualist justices such as Alito, Gorsuch, Thomas, and Barrett to Trump v. Anderson reflect differing perspectives on institutional legitimacy. While Alito, Gorsuch, and Thomas adapted an institutionalist stance, Barrett favored a more narrowly tailored ruling. The court's failure to provide clear guidelines for January 6, 2025, raises concerns about uncertainty surrounding electoral processes.
Challenges to Trust in Institutions and Civil Society
The erosion of trust in institutions by partisan interests poses a grave threat to civil society. The incentive to degrade faith in institutions for political gain could have far-reaching negative consequences. Concerns about continued distrust in institutions overshadow specific election-related catastrophes, highlighting the pressing need to safeguard the integrity of democratic processes.
Clarity Needed on Congress's Role in Disqualification and Vote Counting
Uncertainty persists on whether Congress can disqualify votes based on insurrectionist concerns and the authority to count electoral votes. Differing interpretations on Congress's role as judges of state elections vs. vote counters create ambiguity around disqualification procedures. Clarity is essential to prevent misinterpretation and ensure proper adherence to constitutional principles.
The National Constitution Center's Role in Facilitating Constructive Constitutional Discourse
The National Constitution Center serves as a forum for substantive discussions among scholars from diverse perspectives, fostering critical debates on democratic challenges. By engaging in respectful exchanges like the one with Rick Aspen, Larry Lessig, and Sarah Isker, the Center advances constitutional education and promotes thoughtful dialogues on pressing constitutional issues.
Richard Hasen, author of A Real Right to Vote, Sarah Isgur, senior editor of The Dispatch, and Lawrence Lessig, author of How to Steal a Presidential Election, join Jeffrey Rosen for a health check on the state of American democracy. They look ahead to potential areas of vulnerability in the run-up to the 2024 election, and identify ways to strengthen our democratic processes in response. This program was streamed live on March 21, 2024, as part of our America’s Town Hall series.
