The January 6 committee hearings have put into stark relief just how close Donald Trump and his supporters came to overturning the 2020 presidential election. But the insurrection itself was just one part of a broader political trend of our democracy — and its constituent institutions — coming under assault.
The Supreme Court has been an essential part of this anti-democratic story. In recent years, the Court has undermined campaign finance regulations, gutted safeguards to the ballot and given the green light to Republican partisan gerrymanders. Far from slowing down, conservatives on the Court are at it again this year, working to undermine our government supposedly of, by, and for the people. In the face of this onslaught, organizers are pursuing strategies to protect the right to vote at the local and state levels.
This term, the justices on the Supreme Court put two lower court rulings on hold, allowing racial gerrymanders in Alabama and Louisiana to be enacted for the upcoming election in 2022. The radical wing of the Court likewise struck down state legislative maps in Wisconsin for including too many majority-Black districts, and unraveled core civil liberties by overturning Roe v. Wade and curtailing Miranda rights.
In the next judicial term, there will almost certainly be even more destruction. The Supreme Court will hear arguments on whether to let the racial gerrymanders in Alabama and Louisiana remain operative for the entire decade (i.e. they will decide to what degree the Voting Rights Act guards against racial gerrymanders). Should the Court again gut the Voting Rights Act, as it did previously in 2013 and last year, it would represent a code red for the promise of a multi-racial democracy.
Equally troubling, the justices added to the fall docket Moore v. Harper, a case seeking to override the North Carolina Supreme Court’s decision to strike down the state GOP’s new congressional partisan gerrymander. If the plaintiffs are successful, the egregious gerrymander — one that would undemocratically lock-in Republican electoral dominance — would be reinstated.
Moore also serves as a vehicle for a radical conservative legal theory that would severely constrain avenues to push back against anti-democratic actions in the states. Democracy advocates are sounding the alarm about the case, and continuing their efforts to elect pro-democracy politicians and pass policies to protect our representative system of government.
Plaintiffs in Moore argue that the Constitution grants the power to set regulations for federal elections only to state legislatures (with the caveat that this power is subject to federal oversight). As such, state constitutions and state supreme courts cannot, in their view, overturn state legislative action as it pertains to the conduct of federal elections.
Referred to as the “independent state legislature theory,” this interpretation of the Constitution has “long [been] relegated to the fringe of election law.” In its most radical interpretation, it could mean that the governor, secretary of state, and election boards also lose the power to constrain the actions of state legislatures regarding federal elections. And delegation of authority to election officials, independent redistricting commissions, and ballot measures regulating elections could be undermined, as well.
The adoption of independent state legislature theory could lead to extreme cases of voter suppression and, potentially, GOP efforts to overturn federal elections results — including presidential elections by unjustly awarding presidential electors. (Some scholars argue that such brazen subversion tactics would have to begin before any ballots were cast.)
“Federal courts are already hostile to voting rights claims, narrowly interpreting the U.S. Constitution’s implicit protection for the fundamental right to vote,” University of Kentucky Law Professor Joshua Douglas tells In These Times. “Voting rights advocates have turned to state courts, which is smart given that state constitutions go further than the U.S. Constitution because they explicitly confer voting rights. Under this independent state legislature theory in Moore v. Harper, state courts would be unable to use their state constitutions to protect voters.”
While Douglas is skeptical that Moore will directly lead to outright election subversion, he argues that “it would give state legislatures more leeway to pass whatever voting rules they want without judicial oversight. So, in that sense, it will make it easier for a state to enact measures that lead to voter suppression, which of course can have its own effect on election outcomes.”
Should the Supreme Court rule in favor of the independent state legislature theory, gerrymandered state legislatures, including in key swing states such as Wisconsin, Arizona, Georgia and North Carolina, would become far more unconstrained in their control over elections. At least four of the conservative justices appear open to the independent state legislature theory, with Justice Amy Coney Barrett serving as the likely deciding vote.
Douglas calls the idea that state legislatures are not bound by their state constitutions “a radical concept” and “anti-democracy at its core.” State legislatures would be “free agents to enact whatever voting policies they want, even if those policies are contrary to the protection embedded within a state’s foundational document.”
Given the Court’s disregard for established precedents, there is little reason for optimism regarding the Moore case. And Republican legislatures are hardly waiting for judicial action to push the boundaries of anti-voter policies.
Texas, for example, implemented new identification requirements last year for mail-in ballots. In the first primary election after its adoption in March, an astounding 12 percent of mail-in ballots were rejected. (This number declined in the runoff elections in May, but the number of rejections nevertheless remained significant.) In Florida, Republican Gov. Ron DeSantis shepherded the creation of a police force to investigate claims of election crimes, a solution for a problem that does not exist — and one that appears to be a clear attempt to intimidate voters of color and community organizations. Not to be outdone, Missouri Republicans have banned drop boxes and adopted a new strict photo ID requirement to vote in-person or by mail.
These laws are buttressed by new gerrymanders passed by legislatures in states such as Texas, Kansas, Florida and Wisconsin. Republicans in Ohio were so intent on manipulating electoral maps that they essentially ignored seven separate state court rulings and ran out the clock to have their extreme state and congressional maps go into effect this November.
It isn’t just state legislatures causing havoc. Conservatives on the Wisconsin Supreme Court recently banned most drop boxes for mail ballots, despite irrefutable evidence showing no widespread problems with drop boxes in 2020. Republican groups are using an anti-voter law passed last year in Georgia to try to cancel thousands of voter registrations across the state. Even more frightening, three Republican counties in Pennsylvania are refusing to count legally submitted votes from this year’s primary election in defiance of vote-by-mail regulations.
The pro-democracy movement
For those who have been fighting to protect and expand our democratic institutions, the current situation is bleak. Gerrymandered maps inoculate radical anti-democratic politicians from challenges, and the Supreme Court looms large as a reactionary roadblock. Earlier this year, national Democrats squandered their best chance to preempt many of the GOP election subversion and voter suppression efforts when Sens. Joe Manchin (D‑W.V.) and Kyrsten Sinema (D‑Ariz.) chose to preserve the Senate filibuster instead of passing the Freedom to Vote Act.
Still, no matter the odds of success, protecting and expanding democracy remains the cornerstone of a multi-racial polity — and a bulwark against creeping authoritarianism. The challenges may feel insurmountable, yet the current generation is not the first to face democratic retrenchment. And rather than despair, advocates are turning to grassroots organizing to open pathways for legislative gains.
One of the most successful strategies for pro-democracy organizers over the past decade has been the ballot initiative, and this fall, there are a number of initiatives that could reach the ballot. In Arizona, advocates submitted signatures earlier this month for an initiative that would enact dozens of pro-democracy reforms, including limits on voter purges, same day voter registration, campaign finance restrictions and a curtailment of the legislature’s ability to overturn a presidential election. Only a week later in Michigan, advocates announced that they collected almost 670,000 signatures for a measure that would create nine days of early voting, increase the number of absentee ballot drop boxes, place limits on the legislature’s ability to pass anti-voter laws and safeguard against election subversion tactics.
Victories on the local level can have a profound impact, especially if they push the boundaries of existing policy. Voters in Oakland, California, for instance, will soon decide whether to adopt an innovative system of public campaign financing wherein every registered voter would receive four $25 vouchers to donate to eligible local politicians. The program is based on Seattle’s highly successful public financing program, and could catalyze more interest in public funding of elections.
Only around half of states currently have a process on the books that allows citizens to — either directly or indirectly — propose and vote on policy. In these states, direct democracy could be leveraged to override anti-democratic measures, and to experiment with innovative policies to empower the electorate. This could include proposals such as automatic and same day voter registration, protections against voter purges, independent redistricting commissions and even more transformative reforms such as universal voting or proportional multi-member districts.
Where initiatives aren’t available, grassroots campaigns to pressure lawmakers can still work. New York, long home to some of the most regressive voting laws in the country, just passed a state Voting Rights Act, a major legislative package that could serve as a model for other states. The law would impose pre-clearance on local governments and school districts with a history of racial discrimination. In order for these jurisdictions to change election and voting laws, they will have to seek approval from state officials. The policy also includes additional protections for communities of language minorities and bans voter suppression and vote dilution that targets specific racial or language-minority groups. Advocates in Massachusetts, meanwhile, after spending much of the past year lobbying lawmakers, finally won a codification of Covid-era vote-by-mail and voter registration rules.
For organizers, Congress remains a critical target of pressure, as well. The federal government has the power to preempt the negative impact of the independent state legislature theory by passing laws codifying rules and procedures for federal elections. And the Freedom to Vote Act can still be passed at any point.
Yet, until the filibuster is reformed, federal reform remains improbable. So upcoming elections will matter. Electing anti-filibuster senators and pro-democracy House candidates remains a necessary strategy for democracy protection. So too is electing state lawmakers, election administrators, and sheriffs and prosecutors who support democracy. Sheriffs and prosecutors are particularly neglected in terms of their link to a healthy democracy. The right to vote is, after all, contingent on incarceration status in many states, and some sheriff groups are now organizing to lend their credibility to election denial.
Those seeking to undermine democracy are already organizing electorally — and garnering unprecedented success. At least 120 Republicans who have won primaries for key federal and state races deny the legitimacy of the 2020 election.
Elections, simply put, cannot be ignored. Key senate races are now underway in Georgia, Arizona, Nevada, New Hampshire, Pennsylvania and Wisconsin, the results of which will determine how many more pro-democracy federal judges — and potentially Supreme Court justices — President Biden can appoint. Likewise, competitive gubernatorial elections in Pennsylvania, Kansas, Wisconsin, Michigan, Arizona and Texas will help determine what constraints GOP state lawmakers face, affecting the rules for the 2024 presidential election.
For pro-democracy advocates, the majority of the 21st century has been defined by the simultaneous attempt to raise awareness about sinister voter suppression tactics utilized by Republicans, and to advocate for policies to expand and innovate democratic access. While plenty of progress has been made over the years on the latter, pro-democracy policies consistently run up against the wall of political salience, rarely becoming an issue of public discussion worthy of its value.
Now, however, the January 6 hearings are helping reveal the depths of the right-wing attacks on democracy. The question, then, is: What do we do with this political moment?
“As extremist lawmakers and secret money groups across the country continue to restrict equal access to the ballot box and plan future election sabotage, the need to defend against these attacks on our freedom to vote and secure federal standards for our elections remains vital and urgent,” says Christine Wood, co-director of the Declaration for American Democracy coalition. “We will persevere.”