Republicans protested. “The same path that Donald Trump went down, which is attempting to delegitimize an election,” complained Sen. Mitt Romney of Utah.
But the Trump and Biden paths are not the same. They point in opposite directions.
In other words, Trump unsuccessfully sought to replace a legitimate election outcome with an illegitimate one; his allies aim to improve the chances of succeeding next time. Biden sought safeguards against illegitimate outcomes in elections to come.
That doesn’t make the current President’s comments about 2022 wise. To begin with, every contemporary and historical marker of political conditions points toward a fair and legitimate Republican victory even if none of the new state-level GOP laws had passed.
Those laws seek to curb registration and voting procedures that aided Democratic turnout in a 2020 election shadowed by the pandemic. But even targeting them “with surgical precision,” as Democratic Sen. Amy Klobuchar of Minnesota put it last week, may not overcome the countermobilization efforts that such “voter suppression” often ignites. Some election law experts say Democrats exaggerate their impact in any case.
“There is a point at which voter suppression is so extreme it would call the legitimacy of the election into question,” observed Rick Hasen, Chancellor’s Professor of Law and Political Science at the University of California-Irvine School of Law. “But none of these laws come close to that.”
Republican steps toward “election subversion” — making it easier for partisan officials to change outcomes by disqualifying legal votes — pose a greater threat. That looms larger in the 2024 presidential contest, however, when states certify the winners of their electoral votes.
The hazard of warning about “illegitimate” elections lies in eroding public confidence and weakening the democratic processes Biden wants to strengthen. At the same time, Trump and his Republican allies plainly intend to weaken them.
“Democrats are right to complain about both voter suppression and election subversion,” said Nathaniel Persily, a Stanford law professor who worked on the Presidential Commission on Election Administration during the Obama administration. “But we need to be very careful about how we use words like ‘illegitimate.’
“How do you sound the alarm without questioning outcomes? That’s very difficult. But it’s a critical needle to thread right now.”
American democracy has long served as an example for the world. But some American elections have indisputably been illegitimate as expressions of the popular will.
Democratic election lawyer Marc Elias cites contests in Southern states before passage of the Voting Rights Act. That’s not because votes cast were inaccurately counted; it’s because massive disenfranchisement of Black Americans kept them from casting votes at all.
That no longer exists. In recent decades, the state-by-state trend has been to make voting easier for everyone through more convenient registration, early voting periods and mail-in balloting.
But Republicans have grown uncomfortable with that trend as demographic change shrinks the clout of their White electoral base, helping Democrats win the popular vote in seven of the last eight presidential elections.
In 2018, for example, Florida voters approved a ballot initiative restoring voting rights for felons who had completed their sentences. The following year, at the behest of Trump ally Gov. Ron DeSantis, the Republican-controlled legislature slashed the initiative’s effects by making restored rights for those felons, who are disproportionately Black and poor, contingent on payment of outstanding court fees, fines or restitution.
New state laws in the wake of Trump’s defeat reflect the same impulse to limit Republican vulnerability. There is no comparable Democratic effort to raise voting barriers for GOP-leaning constituencies or subvert election administration.
That’s why even experts critical of Biden’s remarks about legitimacy dismiss comparisons to Trump out of hand.