Impeachment Was Supposed to Protect the 2020 Election. Now, It’s Worse Off.
President Donald Trump’s impeachment awakened debates about political corruption, foreign aid, executive privilege, the meaning of the Constitution and more. But what the country just went through was fundamentally about something else, as well: the integrity of our elections. Both Republicans and Democrats said their positions on impeachment were intended to protect the 2020 election. Yet, as it ends, the process looks like it could have the opposite effect. American election integrity is at serious risk, not so much because of the outcome of the trial, but because of the way the two sides argued their cases.
After resisting calls for Trump’s impeachment for months, fearing the process would be seen as an effort to undo the 2016 election, House Speaker Nancy Pelosi changed her mind because Trump’s Ukraine call was about the next election; Democrats felt they needed to stop Trump from gaining an unfair advantage in 2020 by attempting to enlist a foreign country’s help. Yet, when impeachment moved to the Senate, the House managers argued that unless Trump was removed from office, the 2020 election couldn’t, as Representative Adam Schiff put it, be “assured” of being “fairly won.” This argument suggests that as long as an acquitted Trump is on the ballot in November, there is a risk the election will be unfair, and that its results cannot be trusted as the genuine choice of the American electorate—a recipe for chaos.
Republicans, too, said their position on impeachment was meant to protect election integrity, by making sure voters have the opportunity to reelect Trump to a second term if that their electorate’s preference. Yet, many Republicans in Congress joined Trump in claiming that the president had done nothing wrong in trying to recruit Ukraine to undermine Joe Biden as a 2020 electoral opponent. To suggest that an incumbent president can do whatever he wants to win reelection, as long as it is not a crime, is an intolerable position from the perspective of protecting America’s free and fair elections.
In other words: Republicans (with a few notable exceptions) have condoned a form of cheating in the presidential race, while the Democratic impeachment managers claim that Trump, even if he makes no further attempts to cheat, already has lost any chance to be a legitimate winner. If both parties genuinely thought they were protecting the electoral process, they have been proved wrong: The prospect of holding an honest election has never seemed so fragile, at least not in modern times.
Is there anything we can do about it now? It won’t be easy, especially after the searing experience of the impeachment trial, but if both parties are serious about election integrity, it’s possible to salvage this post-impeachment moment and America’s election process. There is no better time than the aftermath of an intense fight for political leaders to act, and there are a number of practical steps they could take before November.
To start, enough Republicans should join Democrats on some sort of official Senate resolution asserting that there need to be limits to presidential mischief in a reelection campaign. While it seems unlikely at this point that the Senate will formally censure Trump over his Ukraine-related misconduct, surely there are at least four GOP votes for a measure that, without mentioning Trump or Ukraine, categorically rejects the “anything goes” argument heading forward. Acquitting the president in order to protect his place on the ballot was one thing, but now that that’s been accomplished for the sake of the party, a few GOP senators for the sake of the country should go on record saying that, for this and future elections, incumbent presidents running for reelection must not seek or allow improper election interference. This sort of Senate resolution could say something as specific as: “It shall henceforth be a high misdemeanor, punishable upon impeachment by removal from office and future disqualification from the same, for a first-term president to exercise powers of the presidency to interfere with the choice of American voters to decide whether or not to reelect the president.”
A reasonable debate might be had in the Senate over whether such impeachable behavior should be limited to presidential decisions that directly interfere with voters’ right to cast their ballots—as would be the case, for example, if an incumbent president perniciously ordered federal immigration agents to patrol polling places on Election Day hoping to disenfranchise eligible voters. Alternatively, the impeachable behavior could extend to obtaining assistance, from foreign governments or other recipients of federal funds (like state and local governments), to undermine a potential rival candidate through intentionally deceptive messaging. Either approach, albeit to differing degrees, would put the president on notice that, his acquittal over the Ukraine matter aside, there is presidential misbehavior that the Senate cannot condone. One free pass is not a permanent “get out of jail free” card.
While Trump undoubtedly would speak out against any such proclamation, considering it an implicit rebuke to him, it is precisely because he would resist it that the Senate should show some firmness. Deterring Trump from committing misconduct would not be the only, or even the main, purpose of a Senate resolution. It would be a statement of principle from the legislative branch, and if Trump were to violate that principle, it would be a test of whether the Senate would abide by the standard it set for itself. Senators currently can justify their acquittal of Trump on the ground that the “law” of impeachment was murky before the Ukraine matter arose. But once this resolution is on the books, the issue is murky no more.
For all of this to mean anything, Democrats also must extend an olive branch: some sort of magnanimous retraction of their position, expressed by House managers, that the 2020 election inherently would lack legitimacy with Trump on the ballot. Think of it as the equivalent of a losing candidate’s concession speech at the end of a hard-fought campaign. Trump won. The Democrats lost, and so they must concede Trump’s ongoing legitimacy as president. Beyond this, the Democrats should acknowledge that if Trump engages in no further “cheating,” then he can win the election fair and square, in which case the Democrats will accept the victory as valid. (This concession speech would come, most meaningfully, from Pelosi, but that seems less likely after her reaction to Trump’s State of the Union speech. It would still be meaningful coming from Schiff as the lead House manager.)
Beyond such efforts at reconciliation, there are additional bipartisan steps Congress could take to put election integrity on firmer footing. Recall that a minimal degree of bipartisan cooperation is necessary to complete any presidential election; the House and Senate must come together for a special joint session to count the electoral votes from the states and declare the winner. In order to shore up voters’ confidence that this year’s election will be conducted fairly, Congress, as well as organizations of state-level election officials, between now and November should expressly recognize the necessity for bipartisanship in the administration of the election.
Furthermore, given the current political atmosphere, it is highly likely that partisans on one side or the other—or both simultaneously—will challenge the legitimacy of the electoral process as it unfolds this fall. “Rigged,” someone will shout, or tweet. “Cheating,” someone else will say, echoing the language of impeachment. The initial reactions to the technological failures in this week’s Iowa caucuses—namely, observers who jumped to the conclusion that the results themselves were compromised, even though there was no evidence of that—is an early warning sign that America needs help in navigating what’s correct and incorrect about the process of counting votes.
If and when there are charges of voter suppression or miscounted ballots this fall, it would be good to have in place a bipartisan body, even if only advisory in nature, to assess whether the charges are founded and merit formal investigation, while helping to diffuse confusion and controversy. Ideally, the panel would be established by Pelosi and Senate Majority Leader Mitch McConnell. Alternatively, any two Senators from opposite sides of the aisle could step up (how about Lamar Alexander and Tim Kaine?), or ex-presidents George W. Bush and Barack Obama, given the advisory nature of the enterprise.
Even short of creating this kind of advisory body, Congress would do well to hold hearings on the kind of challenges the electoral process might face in the fall. Although there have been hearings about cybersecurity and foreign interference, less attention has been paid to the basic concept of conducting a free and fair election in a hyperpolarized environment. Some resulting, narrowly targeted statutory fixes would be especially valuable. For example, Congress could clarify that the existing prohibition on the deployment of federal military troops at polling places applies to other “armed” federal personnel as well, even if they are Homeland Security, rather that Defense Department, troops.
Despite all the pitfalls that this impeachment now poses for a successful 2020 election, the vote in November still can be successful—meaning it accords with the will of the American electorate, whichever candidate wins, and is accepted by both sides as legitimate. But just as failure is not inevitable (despite what some Democrats might say), success also is not guaranteed. And the impeachment process, in the immediate aftermath of Trump’s acquittal, makes success more difficult and uncertain. If both Republicans and Democrats in Congress are serious about their rhetoric over the past few months—that theirs is the party that cares about election integrity—Congress should step up to show the American electorate the two parties are still capable of conducting a free and fair election. That is not too much to ask.
