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The dilemma: How to avoid undermining trust in the electoral process – while preventing the serial theft of elections?

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There is now no denying that our country, the self-anointed “beacon of democracy,” is facing a crisis of confidence in its elections and the legitimacy of their results. This crisis, which encompasses both the casting and counting of votes, has a long taproot, stretching back at least to the 2002 passage of the Help America Vote Act, and the ensuing rush to fully digitize our elections.

But the pressing question now is what is to be done — indeed, what, if anything, can be done — about the predicament in which we find ourselves? And what can journalism do to at least bring us closer to solutions?

There are two ways of looking at the predicament. From a “process” standpoint, the current, still highly opaque protocols for recording and tabulating votes are unable to prove the legitimacy of their results to the losers’ satisfaction (winners never complain) — not just beyond a reasonable doubt but, in the wake of Election 2020’s dramatics, beyond even the unreasonable doubt they figure to face going forward.

From a more partisan, pro-democracy and pro-Democratic, “outcome” point of view, the predicament is that forces on the far right — which, at best, could not give a straw for democracy itself — are on the move. They are rapidly gaining steam and threatening to impose a durable minority rule, if not outright autocracy, achieved by various schemes and distortions as we move through the next two election cycles.

The danger — long warned about and now perceived more broadly, even by those oblivious to everything but the horse races in our politics — is that one side will not simply achieve electoral success by dubious means, but will then deal a mortal blow to the capacity of elections to course-correct such veers.

The proverbial swinging pendulum will be grabbed and held in a tight procedural fist.

Defending the Indefensible

While election integrity should be a nonpartisan goal, there can be little mistaking the partisan tilt of the current reality. The GOP has leveraged Donald Trump’s “Stop the Steal” upheaval into an open campaign to shrink the electorate through targeted voter suppression. 

And it is, even more ominously and radically, positioning itself to legally subvert unfavorable electoral outcomes as soon as 2022 and certainly in 2024. 

These efforts, primarily at the state and county levels, are drawing significant media attention. They are also the occasional target of proposed federal remediation by Democrats — who, however, having failed to unify in eliminating or carving exceptions from the almighty filibuster, seem unable to legislate their way out of a paper bag, even when it comes to a matter as urgent and existential as the conduct of free and fair elections.

In the wake of the 2020 election and Stop the Steal, however, the media and Democrats seem all the more determined to ignore the very real vulnerabilities of our concealed, computerized vote-counting process to outcome-altering manipulation, especially by those with access to the programming and vote-processing pipelines. 

Trump’s Stop the Steal jihad has driven both the media and Democratic strategists towards a full-throated defense of the security and legitimacy of our elections. But they are defending the indefensible. The reality is that, paper or no paper, our cyber-concealed and poorly audited vote-counting processes will no longer satisfy apparent electoral losers. But facing that reality has become all the more unpalatable after Stop the Steal than it was before. 

And meanwhile it looks as if we’ve reached a point where losing MAGA candidates — and certainly Donald Trump — would find reason to reject election losses even with absolutely perfect and verified vote-counting processes.

That blind spot necessitates a different journalistic lens. If the media herd understandably circles the “perfect election” wagons in reflexive response to Stop the Steal, that begs for coverage that can raise critical questions about the security and transparency of our elections, and point the way to necessary repairs and reforms, while at the same time calling out GOP suppression and subversion “reforms” for the cynical, anti-democratic play that they are.

Anti-Democratic Time Bombs

For the United States, this is a moment of existential confusion, caused by the collision of historical fact and cultural perception. To wit: No democracy, republic, government of, by, and for “the people” has proven immortal; yet generations of Americans believe, as a matter of inborn faith, that theirs will be the glorious exception. Exceptional America, a perpetual-motion machine defying the laws of political physics.

Popular Science magazine, Norman Rockwell, perpetual motion machine

Cover of the October 1920 issue of ‘Popular Science’ magazine, painted by American illustrator Norman Rockwell. It depicts an inventor working on a perpetual motion machine. Photo credit: Norman Rockwell / Wikimedia

Suddenly, it seems, the question for our time has become “Is it just alarmist panic or is the sky really falling?” We find ourselves sailing through an urbanized, digitized, putatively equalized era with a Constitution designed for a slavery-dependent nation that grew and shipped tobacco, cotton, and textiles. 

That Constitution has proven astoundingly resilient. But, in a soon to be majority-minority nation encompassing “coastal elites” and “flyover country,” very serious strains are showing. Specifically, some of its hallowed structural and procedural provisions are going off like anti-democratic time bombs, affecting every branch and function of government:

      • We currently have a Senate in which half the population is represented by 83 senators, the other half by 17. 
      • We have a US House so efficiently and ruthlessly gerrymandered that barely a fifth of its seats remain remotely competitive, and it is not uncommon for elections to produce state delegations bearing no relation to the respective parties’ statewide vote shares. 
      • The Electoral College, like the Senate, significantly advantages small, and mostly red, states — now frequently putting it at odds with the national popular vote.
      • The Supreme Court, an inherently undemocratic institution, has — by a combination of dubious electoral outcomes, cynical machination, and dumb luck — veered into chronic, and now egregious, alignment with the aforementioned anti-democratic vectors. 
      • All point hard right. All resist progress toward sane climate policy, social justice, and the various teleological aspirations that have defined the American experiment. 

And all these vectors have become mutually reinforcing. So, for example, SCOTUS has, in its recent scorched-earth marches through election law: 

      • Equated money with speech, putting down the welcome mat for billionaires and corporations to buy elections (and politicians) with essentially unlimited dark money; 
      • Greenlighted partisan gerrymandering, putting most ruthlessly drawn redistricting maps effectively beyond legal challenge — and absurdly leaving it to gerrymandered legislatures to magically de-gerrymander themselves; 
      • Gutted the key sections of the Voting Rights Act that prevented states from ginning up the very voter-suppression schemes to which most red states have now predictably turned.

And that SCOTUS has, in turn, been built by a combination of our 83/17 Senate, its cynical party-before-country then-Majority Leader Mitch McConnell, and the presidential elections of 2000, 2004, and 2016 — all razor-thin and all of dubious outcome. SCOTUS, fruit of the poisoned tree, is now its own poisonous branch bearing yet more fruit — in an endless cycle.

Mitch McConnell John Roberts, 2009

Sen. Mitch McConnell (R-KY) with Chief Justice John Roberts, who visited the University of Louisville as a guest of the McConnell Center, April 17, 2009. Photo credit: McConnell Center / Flickr (CC BY-NC-ND 2.0)

The Quest for Perpetual Rule

Still, the structural tilt of the table is just one problem and, in itself, might be survivable with the kind of ordinary course corrections that have punctuated our political history. There is, however, another element: an implacable quest for what Karl Rove alternately termed a “permanent Republican majority” and “perpetual rule.” 

Such a goal would require first distortion — and ultimately destruction — of the “swinging pendulum” model of our politics, the traditionally accepted idea that you could rule today or rule tomorrow, but not both. It is hardly coincidental that this aspirational shift came about with recognition of a profound demographic trend in precisely the opposite direction.

In 2002, political sociologists John Judis and Ruy Teixeira published The Emerging Democratic Majority, a study of the demographic trends pushing America inexorably to the left. Such movement had motivated the American Right — Christian and corporate — to begin, decades earlier, the construction of what amounted to a political war machine whose weaponry ranged from think tanks to dedicated media outlets to election equipment vendors. But by 2002, even with Bush riding high in the saddle courtesy of 9/11 (and, of course, Bush v. Gore), the demographic (and political) writing was on the wall and it was time to operationalize all forces.

The timing of passage of the Help America Vote Act (HAVA) in 2002 was not coincidental. The new law was mind-bogglingly sold to the Democrats by the GOP — its chief architect was Ohio Rep. Bob Ney, who subsequently served 30 months in federal prison on corruption charges, with able assistance from McConnell — as a way to boost turnout. 

This rationale begged the question, apparently never asked by the Democrats: Why would the GOP, the notorious engineer and beneficiary of low and suppressed turnout for decades, suddenly be interested in increasing turnout? 

In other words, what was in it for them? HAVA rapidly computerized our elections (see chart), with various carrots and sticks and virtually no serious provisions for security or transparency.

And HAVA handed over the whole enterprise to corporations like Diebold and ES&S – and their various satellites — all boasting right-wing pedigrees. Thus was spawned the Computerized Voting Era, through which we have come, in just 20 years, to our current predicament. Henceforth, tens of millions of votes would be counted in the pure pitch-dark of proprietary cyberspace and tens of millions more in the semi-dark, with paper trails that were available for recount or audit in theory but rarely in fact.

Barack Obama’s election and reelection (and Joe Biden’s) notwithstanding, the political veer of the Computerized Voting Era has been unmistakably and inexorably to the right. The GOP’s grip has strengthened at both state and federal levels, alternating between the power to obstruct and the power to rule outright. The down-ballot “infrastructure” of American politics has steadily reddened.

The Reddening of America: Organic or Synthetic?

You could build a good-sized library from the books, studies, and articles dedicated to explaining this phenomenon. Almost all account for it “organically,” as the product of structural advantages, shrewd and disciplined messaging, backlash, exploitation of technology, and coordination. 

A book such as Anne Nelson’s Shadow Network paints a comprehensive and chilling picture of the whole enterprise, a coordinated campaign (with the Council for National Policy in the driver’s seat) to both influence office-holders and impel droves of right-thinking voters to the polls, while making sure wrong-thinking (i.e., left-thinking) voters are kept away. And lying, and exploiting every possible scheme to bring about favorable electoral outcomes. One cannot help but be impressed by the far-right’s fierce will to power and relentless probing of the weak points and vulnerabilities of our political processes and flagging democracy.

Over and over, in Nelson’s book and in the “organic” literature more generally, we are brought face to face with an ends-justify-the-means mindset. And, since the focus of all these activities has been to shape electoral politics, it is reasonable to suspect that the vulnerabilities of that process — including its vote-counting component — have been among those probed.

My work in election forensics (some of it published by WhoWhatWhy, most of it reviewable in my book CODE RED: Computerized Elections and The War on American Democracy) strongly suggests that elections have been targeted and compromised for the benefit of the GOP and, more specifically, the far right. This raises the question whether, given the manifest vulnerabilities of the counting processes, there is some ethical bright line between, on the one hand, the overt tactics of disinformation and voter suppression, and, on the other hand, the even more insidious covert tactic of vote-count manipulation. Why, presented such opportunities, would such table-tilting cynics pull up short of flat-out numerical cheating?

Ironically — maddeningly — in the wake of the 2020 election and Stop the Steal it is the MAGA crowd that is now, by far, more inclined to distrust electoral outcomes and the concealed processes of vote tabulation. The plain fact of Election 2020 is that it went shockingly badly for Democrats not named Joe Biden. Yet the hue and cry went up — and will continue going up — from the MAGAs (joined in short order by nearly all of the GOP), while nary a peep was heard from the Democrats or their media allies. 

Even though 27 of 27 US House contests rated as toss-ups were won by Republicans; even though Biden’s own popular vote margin was cut in half from both tracking and exit poll predictions; even though Democrats were drubbed at the state level; and even though there was some powerful evidence (published by WhoWhatWhy) of millions of ballots either unsuccessfully cast or not counted throughout Blue America.

Stop the Steal insurrection, January 6th

Stop the Steal insurrection on January 6, 2021. Photo credit: Tyler Merbler / Flickr (CC BY 2.0)

A Journalist’s Dilemma

This pervasive meta-pattern — the very reverse of the evidence-free “steal” that Trump was screaming had to be stopped — presents a bevy of questions and a dilemma. 

Can responsible journalists even take judicial notice of such patterns, ask more questions, probe them further, without sounding like the very Stop-the-Steal yahoos who threaten to undermine whatever trust may be left in our elections? 

How do we defend democracy from one kind of attack (undermining trust in the electoral process) while protecting it from an equally deadly attack (the serial theft of elections, resulting in Rove’s forecast of “perpetual rule”)? 

Can the MAGA outrage and energy be harnessed in any constructive manner? What happens if, hypothetically, it is replicated among Democrats and progressives, such that neither side will accept close electoral losses and the legitimacy of the winners? 

Alternatively, what happens if, as is more likely, it remains asymmetrical warfare, such that the right cheats to win and storms the Capitol if it loses, while the left plays it straight and meekly accepts even highly suspect defeats?

These are the kinds of questions we need to ask and find answers for, even if those answers are disturbing or imperfect ones. The reality now is that one side is vaguely committed to process while the other side is nakedly committed to outcome. There is virtually no convergence around sound, secure, democracy-promoting electoral principles and processes. Rather it is, for one side, a pure question of partisan advantage in a political/cultural total war perceived by that side (and perhaps, belated and equivocally, by the other side) as existential.

The battle is raging at every governmental level — from SCOTUS and Congress to school boards and county election administrations. The outlook can hardly be considered bright. There’s immense anger bubbling up. Climate change and extreme weather loom; COVID-19 continues to divide and disrupt; education is in the crosshairs; long-established and hard-won rights are under fierce assault and falling one by one; talk of national divorce is no longer confined to crackpots and zealots. There’s even talk of blue (or red) voters “colonizing” swing states to get around (or preserve) the seemingly immutable tilt to the modern political table wrought by the intended and unintended consequences of our Constitution’s design. Some now assume a collapse is simply in the cards.

If we agree that our work is to stave off such a collapse and restore health and functionality to our republic — “keep it,” in Benjamin Franklin’s memorable “if you can” — then first and foremost we should agree that the point of convergence, the funnel that all will have to pass through, will be our next two biennial elections, this year and in 2024. 

The radicalized, Trumpified, Talibanistic GOP certainly knows that and has been feverishly putting into place the structures and procedures that it believes will make them winners — and confer the power to lock it all in place — by hook or by crook. The Democrats, slow off the mark and tripping over their own feet, are, as of this writing, playing pathetic catch-up.

The media does a decent job shedding light on already visible GOP schemes to suppress the Democratic vote, and to subvert the electoral process administratively, legislatively, and judicially.

But the media is not exposing the vulnerabilities of the counting process, or of electronic fraud. It’s stuck in anti-Stop the Steal mode, unwilling to countenance the kind of flaws that have led other democracies — the Netherlands, Norway, Germany, Ireland, New Zealand — to restore public, observable vote counting. And nearly all remain allergic to any data suggesting that such flaws may already have been exploited to alter key election outcomes. 

What we desperately need now are journalists who are as brave as they are agnostic. Journalists who will reveal the issue in its full complexity, and who will warn the country that this battle for its soul will come down to voting and counting processes that have become increasingly dangerous to democracy — that nearly blew it up in 2021 and are odds on to be even more explosive next time — and are crying out for reform.

Solutions would actually not be difficult technically but, politically, they are all but impossible. As long as our elections are anointed “perfect” and “the most secure ever” — as long as that remains the conventional herd wisdom — the path of those bent on election rigging might as well be lined with rose petals.


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