Joe Biden, who ran for president promising to restore trust in American democracy, recently undermined it. It's not what he was elected to do, and he needs to repair the damage.
During his marathon press conference last week, Biden was asked whether the failure of voting-rights legislation in Congress would render this year's elections illegitimate.
"I'm not saying it's going to be legit, as the increase in the prospect of being illegitimate is a direct proportion to us not being able to get these reforms passed," Biden responded. Because the reforms didn't pass, by implication the midterm elections later this year may indeed be illegitimate.
The White House tried to clean up the president's comments on the legitimacy of our elections. Press Secretary Jen Psaki tweeted out a statement saying "@potus was not casting doubt on the legitimacy of the 2022 election." But the harm was done.
Whether one agrees or disagrees with the reforms Republicans have been pushing in several states, the notion that they qualify as "voter suppression" is at best questionable, and Biden's claim that they amount to a "21st-century Jim Crow assault" is indefensible. The new Georgia law, for instance, left intact no-excuse absentee balloting and actually expanded in-person early voting. In fact, the state has more early-voting days (17) than New York or New Jersey (nine each). According to PolitiFact, liberal New York has, in this and other respects, more restrictive voting laws than Georgia. And according to the nonpartisan Center for Election Innovation and Accessibility, even after the passage of Georgia's new election law, Georgia is among the top states in voter accessibility.
Whether the federalization of election rules that Democrats were pushing in their voting bills would have made the system somewhat better or somewhat worse, the rhetoric that has surrounded this issue has been hyperbolic and bordering on incendiary at a time when our democratic discourse is way too hot. The intentions of some (not all) Republicans who pushed for voting reforms were partisan and opportunistic--as is often the case when politicians draw up voting rules and political boundaries. But exaggerating the bills' effects and making hysterical predictions only heightens the distrust in democracy that Biden promised to reduce.
The debate over voting rights was not one of those moments that are "so stark that they divide all that came before and everything that follows," in the president's words. It was not the case of "democracy over autocracy." And it wasn't a choice between siding with Martin Luther King Jr. or George Wallace, John Lewis or Bull Connor, Abraham Lincoln or Jefferson Davis. It was an argument on the margins concerning laws that reasonable people can disagree about.
The most levelheaded summary of the current state of affairs was written by Yuval Levin of the American Enterprise Institute, who points out that it's easier than ever to vote, and that voter fraud is vanishingly rare. Levin told me that his view of the Republican bills in the states is like his view of the reforms championed by Democrats: They are not necessary, because the problem they claim to respond to is basically imaginary--and therefore the fact that they are being advanced is bad for our confidence in democracy, even though they would not actually do very much. In this sense, the "debates" we are having about election administration are a bigger problem than any of the problems that either side says it wants to solve.
But this has to be said: The wounds inflicted on American democracy by Donald Trump and the Republican Party just since last November--attempting to overthrow the 2020-election results, encouraging a violent attack on the Capitol, continuing to peddle lies that the election was stolen in the "CRIME OF THE CENTURY," releasing fake Electoral College certifications that declared then-President Trump the winner of states that he lost, planning to manipulate the certification process in key states--are far worse than anything the Democrats have done in this area. Republicans, starting with Trump but now including virtually the entire political apparatus of the GOP, have engaged in a sustained effort to undermine confidence in our elections and the peaceful transfer of power.
Which brings us back to Biden. From here on out, what he can say, and should say, is that efforts to corrupt the counting of the vote, and thus to reverse the voters' will, are an attack on the legitimacy of the election--by definition, in fact. In Arizona, for example, Republicans hired the group Cyber Ninjas to conduct an election audit of ballots in Maricopa County, the state's most populous, which turned out to be an embarrassing bust. (Cyber Ninjas found that Biden won by 360 more votes than the official results certified in 2020.) Simultaneously, Biden must counter the narrative being pushed by the Democratic Party--that because its voting-rights bills failed, voter suppression will happen and our elections will be illegitimate.
One constructive step Biden could take to defend voters' supremacy is to put his shoulder to the wheel on behalf of the effort to modernize the Electoral Count Act of 1887, which governs the way Congress counts and certifies votes from the Electoral College after each presidential election. Ambiguities and loopholes in that law create potential maneuvering room for partisan governors, state legislatures, and members of Congress to nullify the election by submitting alternative slates of electors and throwing the decision to the House of Representatives.
Legal scholars from across the ideological spectrum have urged its reform, and a bipartisan group of senators, led by Republican Susan Collins, are working to do just that, in order to avoid a repeat of the circumstances that led to the January 6 attack on the Capitol.
According to Collins, "The model for us coming up with an election reform bill that is truly bipartisan that would address many of the problems that arose on January 6 and that would help restore confidence in our elections is the approach that we used for the bipartisan infrastructure bill."
In his inaugural address, Biden said, "This is a time of testing. We face an attack on democracy and on truth." He was right. The attack on democracy and truth was led by his predecessor, a man who did nearly unfathomable harm to our country. Biden's task is to repair the damage, not to add to it. He can do that by modeling equanimity when possible, and by speaking with precision rather than exaggeration.
The temptation in a time like this for all of us--for me--is to get caught up in the heat of the moment, to let your frustrations get the better of you, to rhetorically overreach because you face opponents who might be unreasonable. Calling others out with conviction and moral force without speaking recklessly or uncharitably isn't easy. But being president never is.