Learning the Lesson of January 6

Hopefully, after this year's elections, America will get another chance to adopt the structural reforms necessary to assure that elections produce the results that a majority of voters want.

I fear we have failed to understand what needs to be done to protect the nation from the forces that caused the January 6 attack on the Capitol and continue to threaten the country’s capacity to conduct free and fair elections according to the rule of law.

The good news is that a majority of Americans still believe votes should be counted honestly and accurately and the results of these tallies should be respected, as required by a basic commitment to the principle of republican self-government. Furthermore, a majority also believe that the effort by Trump and his supporters to overturn the outcome of the 2020 election, which led to the violence of January 6, was antithetical to this basic democratic principle.

The bad news, however, is that a substantial minority of Americans do not believe these crucial points. Even worse, the current institutions of American democracy are structured in a way that enables this substantial minority to win free and fair elections and then, once in power, to subvert future elections so that they are no longer free and fair, thus enabling this minority to remain in power even when free and fair elections would require their replacement with officeholders who represent the will of a majority sizable enough to overcome the anti-majoritarian structural features of the existing electoral system.

The implication of this combination of good news and bad news should be clear: it’s necessary to alter the structural institutions of American democracy so that they permit the will of the majority, rather than a minority, to prevail. This is essentially the correct and important message of Tyranny of the Minority, the recent book by Stephen Levitsky and Daniel Ziblatt (the authors of How Democracies Die).

Unfortunately, the response to January 6 has not focused on addressing this need. Instead, the effort has been devoted to voter turnout and persuasion, as if getting enough voters to cast ballots for pro-democracy candidates can overcome the anti-majoritarian impediments of existing electoral structures.

For the two years that Democrats were the majority party in Congress after the January 6 attack, they pursued an election reform agenda that emphasized measures to facilitate higher voter turnout—like expanded vote-by-mail. There is nothing wrong with making it easier for voters to cast ballots, except that in this case Democrats pursued it in a way that could not get support from even those Republicans (like Liz Cheney and Mitt Romney) who were energetically opposed to Trump’s authoritarianism, and the Democrats’ insistence on prioritizing these voter turnout measures distracted them from pursuing a targeted structural reform agenda that might have secured enough support from moderate Republicans to overcome a Senate filibuster.

For example, Democrats should have sought to enact a stand-alone bill to eliminate congressional gerrymandering, as gerrymandering has been a major factor in leading to a House of Representatives dominated by the MAGA wing of the Republican party, as reflected by the speakership of “MAGA Mike” Johnson. Democrats included anti-gerrymandering provisions within their 800-page monstrosity of an omnibus election reform bill that could not get even a single Republican vote, but they never attempted a bill focused solely on stopping gerrymanders, which might have been able to find enough Republican votes in the Senate. After all, Senate seats are not gerrymandered, and so no Senator personally benefits from the practice. Protecting democracy from the kind of authoritarian tendencies exhibited so much more prominently in the House of Representatives—like the 147 Republicans in the House who voted to overturn Biden’s valid victory on January 6—might have attracted moderate GOP senators to support a modest and limited anti-gerrymandering measure. We will never know, because Democrats never tried.

Nor did Democrats attempt to address the most significant structural problem that cause the overrepresentation of MAGA authoritarians in Congress: the way partisan primaries interact with plurality-winner general elections. In non-gerrymandered Senate seats, and even more so in gerrymandered House districts, winning the Republican primary is often all that matters because voters in November will elect the GOP nominee over the Democrat even if the GOP nominee comes from the MAGA wing of the party. But this fact does not mean November voters prefer the MAGA candidate over a non-MAGA opponent in the Republican primary. It just means that the November voters never have the chance to express their preference for the non-MAGA Republican, because the dominance of the party’s MAGA wing in the primary blocked the non-MAGA candidate from being on the November ballot.

Congress could have addressed this problem by narrowly tailored legislation aimed at ameliorating the anti-majoritarian tendencies of partisan primaries. There might have been a chance to build a bipartisan Senate coalition in support of this reform, because it would have kept the non-MAGA wing of the Republican party from becoming eviscerated by the dominance of the MAGA faction.  In this situation, what would have been good for the country would have been good for Mitch McConnell and his non-MAGA contingent. But Democrats never undertook an effort to sell traditional Republicans on why this kind of structural reform is in both their self-interest and the public interest.

Now the opportunity for much-needed structural reforms, at least before this year’s elections, has passed. As a consequence, Democrats are left to plead with voters to care enough about democracy to turn out and vote against Trump and the MAGA candidates he endorses. But this plea is problematic because attitudes have hardened. Again, the current combination of good and bad news: a majority supports small-d democracy, but a substantial minority doesn’t. So, absent the kind of structural reforms that are necessary, pleading with voters might not be enough.

Moreover, pleading with voters to support democracy solidifies an overly simplistic message. It makes voters think that democracy is an all-or-nothing proposition: either democracy exists, or it doesn’t. But the key truth is that democracy comes in degrees: America has a democracy, but it is an insufficiently majoritarian one.

Voters, like the representatives they elect, need to understand that structural reform is required in order to make elections genuinely reflect the will of the majority. Relying on voter turnout is not an adequate safeguard. But that is not a message that Biden and Democrats are in a position to convey in this most dangerous of moments. As Biden’s speech yesterday at Valley Forge demonstrates, he’s confined to exhorting voters to cast ballots against Trump and other MAGA candidates as the only means of defense against authoritarianism.

This predicament also affects the issue of Trump’s potential disqualification now pending before the Supreme Court. Because America’s electoral institutions are insufficiently majoritarian, Trump may be able to win this year’s election without being the majority choice of America’s voters—and this is true because of the structural defects associated with the partisan primary, as well as the nature of the Electoral College system. To be sure, Trump should not be disqualified unless that’s what the applicable law requires. But disqualifying Trump, in addition to not denying a majority of Americans their preferred choice for president, may be a regrettably necessary one-time emergency measure in order to prevent the anti-majoritarian election of an authoritarian dictator who has already proven himself willing to seize power contrary to the Constitution and its requirements.

It is a very frightening realization that American democracy may not survive this year’s elections, given the anti-majoritarian nature of America’s current electoral procedures. But if it does survive, and the nation gets another chance at electoral reform in starting in 2025, I hope we will have finally learned the lesson that we failed to learn after January 6. If given a second chance, I hope we take advantage of it in order to adopt the kind of majoritarian measures that will be the best defense against the authoritarian tendencies that unfortunately exist not just in Trump alone but in a substantial segment of the population.