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When Impeachment Fails

If impeachment won’t cure an abuse of presidential power, what will?

Some scholars argue that even without removal, impeachment still serves a purpose. New comparative research from Tom Ginsburg, Aziz Huq, and David Landau on impeachment provides “the first comprehensive analysis of how constitutions globally have addressed [removals], and what the consequences of different design choices are likely to be.” Looking at a large data set regarding impeachment and removal along with case studies of South Korea, Brazil, Paraguay, South Africa, and the United States, they argue that impeachment allows presidential or semi-presidential systems to get out of a major crisis.

However, this “exit” from crises works best when the process of impeachment culminates in new elections immediately or soon after a head of state is impeached. In South Korea for example, new elections must be called 60 days after the impeachment process has concluded. Huq, Ginsburg, and Landau argue that this process allows a reboot of the system.

In the United States, we do not have such an immediate-election requirement — but we did coincidentally hold elections last November. What can this tell us about whether impeachment can provide this cleansing process? Some might say the election’s outcome proved that here too impeachment can serve such purpose. But because our election occurred only because the calendar dictated, we cannot rest on this comforting conclusion.

Some commentators believed that a “reset” election would allow Americans to say, definitively, “Trump is not who we are.” To serve as a reset, impeachment ought to result from elections that reflect the popular verdict — who we actually are and what we actually believe — about a president’s conduct.

It is fair to say that the last election reflected “who we are.” More than 159 million people voted in the 2020 federal election and 2021 Senate runoffs, the highest voter turnout in more than a century. As we have noted elsewhere, voters gave Democrats “trifecta” leadership of the White House, the Senate, and the House — a definitive rebuke of Trump and his congressional backers.

But even if the 2020 election was a cure, there’s little guarantee that future elections will be, given the ways Republicans are seeking to undermine elections in the Senate and state legislatures.

Contrary to the intent of the Constitution’s authors, Congress responds to issues slowly — or not at all — because the Senate does not represent the population, but rather states, and the House is gerrymandered to a fare-thee-well. Senators from low-population states — more likely rural, white, conservative, and Republican — are at least as powerful as senators from higher-population states, in part because they represent more homogeneous interests. Further, the arcane Senate rule of the filibuster exaggerates the already antidemocratic nature of the body. So proposed federal initiatives to fix problems of democracy laid bare by the last election — by easing voter registration, preventing or curing partisan gerrymandering, and making voting itself more accessible — are stymied by the ability of the Republican minority to deny a filibuster-proof supermajority in the Senate.

Worse, where Republicans are in control of state governments, they are changing the rules to make it harder to vote, especially for people of color. Republican legislators and other Republican officials, including several governors, assert that these new restrictions on voting will restore public confidence in “election integrity.” Their assertion, however, is unsupported by any evidence of election-security…

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