How best can we keep America from entering a constitutional succession crisis or suffering a turn toward authoritarianism? As readers may remember from my post last month (see also), several of us at Cato contributed as “Team Libertarian” to the National Constitution Center’s essay project “Restoring the Guardrails of Democracy” on this topic. This week the Volokh Conspiracy is hosting a symposium featuring participants, with me writing for Team Libertarian, Prof. Ned Foley for Team Progressive, and David French for Team Conservative. Each of us is starting off with a post laying out our affirmative case. Mine is here.
You should read the whole thing, but a few highlights from my point‐by‐point proposals for preventing an election crisis:
- Electoral Count Act reform should confine each actor to its proper role after a presidential election, clear up ambiguous and confusing terms in the present law, and keep partisans from using the process to re‐litigate the underlying election.
- Congress should move to constrain the executive branch’s resort to dangerous emergency powers. The law should make clear (or even clearer than now) that presidents do not have unbounded discretion to invoke the Insurrection Act, seize voting machines without a court order, declare martial law when civil order has not broken down, or in other ways use peremptory executive power to overturn or block an election.
- Counter distrust with a credibility agenda, recognizing that in an age of distrust systems need to be both secure against fraud and bad practice, and visibly so. Examples: improve methods of keeping voter registration rolls accurate and up‐to‐date; strengthen audits. States should facilitate, and where appropriate mandate, reporting of substantially complete returns on election night, to counter the viral popularity of “overnight steal” claims.
- Look for ways to incentivize losing candidates to concede. Former President Trump has set the worst example in crying fraud after losing a contest, but he has not been the only offender.
- Watch out for proposals to gather ever greater election say over election administration to Washington, D.C., which would provide a single attractive target for bad actors to pressure or subvert. We should be wary of what economist Steven Landsburg calls “centralizing the power to decide who will yield power.”
- Avoid innovations that invite succession crises. One example: the ill‐thought‐out National Popular Vote Compact, in which states pledge to cast their electoral votes for the national popular vote winner even though no way is offered to secure an authoritative tabulation of that vote, so that it can be agreed who won.
- Turn down the temperature and stop delegitimizing key institutions. Both sides need to listen on this. It’s one thing to decry worsening polarization as if it were all the other team’s fault. It’s another to resist the partisan temptation to delegitimize the existing institutions and machinery of our republic – whether the Supreme Court, the U.S. Senate, or local election administrators – because they don’t yield the short‐term results you want.
I go on to summarize the report’s two other sections, by Cato colleague Clark Neily on the role of the jury and by Volokh Conspirator (and George Mason lawprof) Ilya Somin on the benefits of choice between governments.
I think classical liberals and libertarians can play a constructive role in a conversation about guardrails given our particular attachment to the rule of law, constitutionalism, checks and balances, and limitations on government power in general. By instinct, we understand and fear how a government is likely to start behaving once its top officials know that voters cannot turn them out of office.
Later in the week Foley, French, and I will each write a post responding to, and sometimes taking issue with, the proposals from the others. Check back to see how that develops.