Bob Bauer has been involved in many of the biggest political struggles in the five decades since the post-Watergate 1970s. He has been a leading legal adviser to the national Democratic Party and to its candidates on strategies for winning elections and protecting voting rights, and he has represented the party in national political conflicts and controversies. He was the chief counsel to both of President Obama’s presidential campaigns and was the President’s White House counsel. He was counsel to the Democratic Senate leader during Bill Clinton’s impeachment trial. He was a senior adviser to the Biden presidential campaign on voting rights and election protection, and on vice presidential selection, and his responsibilities included playing the role of Donald Trump in preparation for the general election debates. Bauer is also now on the faculty of the New York University School of Law, teaching political reform and the ethical challenges facing lawyers in public life. He coauthored with Jack Goldsmith After Trump: Reconstructing the Presidency.

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Excerpt from Chapter 4

In a period of angry, politicized politics, the weapons may be turned in fresh, expanded directions. For once the fire is trained on a candidate’s supporters, weapons can be turned on voters. This is not “collateral damage”: this is an emergency for American democracy, as has become plain for all to see in just the last few years.

The attack on voters has become a staple of the partisan wars now underway, and the Republican Party at the national, state, and local levels have to answer for it. It starts with state legislatures enacting laws to restrict the vote by burdening voters with the expectation that some will be deterred from voting and others will make errors that disqualify their ballots. The intention is clear: making it harder for certain communities of voters who, not at all coincidentally, are more likely to support the opposing party. So partisan lawmakers try to limit voting by mail or restrict ready access to locations for the casting of ballots; they complicate the signature and witnessing requirements for casting a ballot; they restrict the assistance voters can receive from parties and voting rights organizations; and they refuse requests from election officials for more funding to enable them to run more efficient, well-staffed polling places. It is just one way that government power is used to terrorize civilians and enhance the chances of battlefield victory.

Sometimes, but far from always, these restrictive measures targeted at voters are successfully challenged in court. Many of them—most of them—survive legal attack, because legislatures can assert broad power to regulate the terms and conditions of participating in the voting process. This power includes putting great weight on “secure” voting to protect against “fraud” and far less on making voting more accessible. Now we see the rapid pace of escalation of this attack into the use of criminal laws to intimidate voters in the name of guarding against fraud. Yet there is no reasonable disagreement, among Democratic or Republican experts, that fraud in U.S. elections is exceedingly rare.