After Donald Trump’s loss to Joe Biden, the United States experienced an unprecedented rejection of a presidential election’s legitimacy. Although these tensions culminated in the January 6th attack on the Capitol building, the “Big Lie” has remained influential among much of the Republican party’s base. To most casual observers of TV news, American democracy is in a uniquely precarious state. The image of Viking-helmet-clad petit bourgeois tyrants stampeding through the halls of Congress provokes a visceral reaction in anyone who still somehow believes in the sanctity of our government’s institutions. However, this orgy of camo-wearing Confederate flag wavers could’ve never posed the threat to Joe Biden’s inauguration that they imagined. They planned to change the election to Trump’s favor by storming Congress during its tallying of electoral college votes. As a largely symbolic procedure, the interruption – or even blocking of this counting – would’ve had no effect. In each state, ballots had been counted (and often recounted, thanks to Trump’s litigious campaign) and the slate of electors had been confirmed. The result was already established. No sit-in of Congress by Pepe-loving Nazis was going to change that.
Despite the futility of the January 6th insurrection, American democracy, or what’s left of it, is gravely endangered. Big business corruption, media manipulation, and other authoritarian methods have already insulated our politicians from the people’s will for decades and made the USA more of an oligarchy than a true democracy. A Princeton study in 2014 found that “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.” The International Institute for Democracy and Electoral Assistance classified the United States as a “backsliding democracy” for the first time in 2021. The Republican party has driven this transformation of politics for one reason: with the US’s shifting demographics, they cannot remain politically competitive with their current ideology. When the US becomes majority-minority by 2045 – meaning white people will no longer make up over half the population – white supremacy, whether covert or overt, will likely be a failing strategy. Fortunately for Republicans, institutions like the Senate and the Electoral College serve to undemocratically boost the political power of citizens in majority conservative, rural states. In terms of electoral college votes, one vote for president in Wyoming equals 3.7 votes in California. With distortions like that, it’s not surprising that the last two Republican presidents got to the Oval Office while losing the popular vote. Although neither Trump nor Bush still occupies the White House, the five Supreme Court justices they appointed are still with us. With no democratic mandate and often against public opinion, the Supreme Court has started handing down decisions that could’ve been written by Ben Shapiro. The court has overturned Roe v. Wade, kneecapped the EPA’s ability to regulate carbon emissions, and nullified New York gun control laws. The upcoming case Moore v. Harper, which will be heard during the 2022-2023 session, and likely decided upon in July of next year, pertains directly to how states’ electoral systems are organized and is especially keeping legal scholars up at night.
To get a sense of what we should expect on the national level, we can look at a state-level Republican success story in killing democracy. In Wisconsin’s 2018 midterm elections, Democratic candidates for the House of Representatives received 1.3 million votes, while Republican candidates got 1.1 million. However, Republicans held on to their five seats, while Democrats only won three. The results were even more jarring in state legislature elections. While Democrats won 54% of the votes, they gained only 36% of the assembly seats, while the voting minority of Republicans walked away with a nearly veto-proof majority. Simply put, in Wisconsin, voters may be equal, but some voters are more equal than others. This deformed system is the result of partisan gerrymandering, or the redrawing of electoral districts, pushed by Republicans in the state since 2011. As the urban centers of Milwaukee and Madison were growing and becoming more diverse, Republican politicians decided to change the rules of the game while they still could. A Republican-dominated state legislature redrew Wisconsin’s Congressional and state legislative districts to increase the weight of rural conservative voters relative to urban liberal voters. Republican legislators got to choose their own voters rather than let the opposite occur. The governorship of Wisconsin, which remained elected by popular vote, responded to changing demographics and public opinion when Democrat Tony Evers was elected in the 2018 midterms. However, as seen above, he had to contend with a Republican-dominated legislature that prevented him from enacting a popular agenda and preserved the policies put in place by the previous governor, Republican Scott Walker. In a government with checks and balances, undemocratic actors only need to corrupt the judiciary in order to maintain their power over the entire government.
Seeking to restore some semblance of democratic decision-making to Wisconsin politics, Evers and Wisconsin democrats drew up new districts which would loosen the Republican stranglehold. One crucial part of the plan was to increase the number of black-majority assembly districts from 6 to 7 and reverse the Republican policy of “packing” black voters into a small number of districts to reduce their political influence. Such racial gerrymandering strategies are far from new, first employed by white supremacist politicians in the Jim Crow South. Democrats argued that the redistricting would be necessary to fulfill requirements established in the Voting Rights Act, and in a 4-3 decision, the Wisconsin Supreme Court supported that claim. Justice Brian Hagedorn, the court’s moderate who voted with the liberal justices, ruled that there were “good reasons to believe” that such a redistricting was necessary to bring Wisconsin’s electoral system today to the standards established in that key 1965 civil rights law. However, an appeal by GOP lawmakers and the Wisconsin Institute of Law and Liberty brought the case to a conservative-skewed Supreme Court in March 2022, which proceeded to strike down the Wisconsin Democrats’ redistricting plan based on Republicans’ argument that it violated the U.S. Constitution’s Equal Protection Clause by redrawing districts based on racial demographics. Infuriatingly, the Court essentially argued that gerrymandering on racial lines that favored Republicans isn’t discriminatory but that reversing that same race-based gerrymandering is a threat to civil rights. Justices Sotomayor and Kagan were the only voices of dissent, calling the majority’s ruling “unprecedented.” As part of their challenge to the Democrats’ plan, Republican politicians also drew their own redistricting plan, which would further cement their advantage in legislative elections to the point where they could win a veto-proof majority in the state assembly while still receiving less than half of the popular vote. This would finally neuter Evers’ governorship and ensure Republican dominance. Although the decision stopped short of explicitly endorsing the Republican redistricting plan, the effect was the same. Since the ruling was made shortly before the beginning of the 2022 midterms campaigns for the state assembly, time constraints ensured that Democrats wouldn’t have time to draft a new redistricting plan. On March 23rd, in another 4-3 decision, the Wisconsin Supreme Court followed the Supreme Court’s lead and confirmed the Wisconsin Republicans’ plan as the last one standing. “The remaining option is to choose one of the proposed maps we received as the baseline,” wrote Justice Hagedorn, who switched over to the side of his conservative colleagues. “Only one proposal was represented as race-neutral in its construction: the maps submitted by the [Republican-dominated] Legislature.”
Buried under all of this legalese and political maneuvering is a terrifying truth. Demagogues in the Wisconsin Republican party were able to exploit institutions created to ensure democratic accountability to establish the exact opposite of that. Then, the Supreme Court, the branch responsible for defending the Constitution and democracy from partisan overreach (at least according to the average high school civics class), not only failed in its chief responsibility but furthermore ushered in an even more authoritarian election regime. Even more concerningly, this entire episode took place with little to no national media coverage. Unfortunately, that shouldn’t be surprising for those familiar with today’s media environment. Electoral procedures aren’t sexy and certainly don’t garner as many clicks as photos of a scruffy Capitol rioter with his feet up on Nancy Pelosi’s desk. Additionally, our education system trains Americans to associate the collapse of democracy with the obvious signs of political violence and overt hatred and less so with the institutional failures and exploitations that lead up to that conflict. That’s a flaw that those who wish to undermine our democracy are well aware of. The smarter Republicans understand that something like January 6th will not secure minority rule for them. The heavy lifting has to be done by the states, and with the Supreme Court the way it is, they have a good shot at achieving that goal.
The question at the center of Moore v. Harper, is to what extent state legislatures should get the final word on how elections for federal offices should be regulated. Amicus briefs filed by Republican organizations are pushing the court to follow the controversial “independent state legislature” theory, which argues that state legislatures can override governors, state courts, and even state constitutions and non-partisan state redistricting committees (created to combat gerrymandering) in deciding how elections should be run. Although such a decision wouldn’t allow state legislatures to reject election results with which they disagree, it gives a lot more room to tilt the scales. Voter ID laws, gerrymandering, insufficient polling stations in urban areas, and restricting mail-in or drop-box voting have all proven to be successful measures for advantaging Republican candidates. A decision favoring the “independent state legislature” theory would allow such policies to be pursued with fewer limitations. Considering what Republicans in Wisconsin were able to achieve within those boundaries, it’s scary to think where they could go without them. Since this ruling would only apply to federal elections, governors and state constitutions would maintain their power in regulating state-level elections. However, ensuring that the above mentioned undemocratic measures apply only to federal elections could make the electoral system even more chaotic and susceptible to manipulation by creating a two-tiered voting system where totally different rules apply to elections that appear on the same paper ballot. This opens up a startling possibility where, according to NYU professor Richard Pildes, “state legislatures might try to insert themselves into some state of the vote-counting process” and claim they were seeking to prevent election fraud, which is exactly what Trump was calling on Republican legislators to do in Georgia, Pennsylvania, and Arizona after the 2020 election.
The conflict that precipitated Moore v. Harper is another case in point. After the 2020 census, The Republican-dominated legislature in North Carolina used this legitimate opportunity for redistricting to push through an electoral map that favored Republicans. Critics argued that, in the situation of a 50-50 split between Democrats and Republicans, ten of the state’s fourteen members of Congress would be from the GOP. Although North Carolina courts struck down the map for violating the state constitution’s guarantee of free and fair elections, the case has been successfully appealed to the Supreme Court. That’s why this case now presents Republicans with their long-desired opportunity to argue for the “independent state legislature” theory in front of a Supreme Court exceptionally stacked in their favor. If they win, it’s not just North Carolina or Wisconsin’s electoral system draining down the toilet. Ohio, Texas, Florida, Michigan, Pennsylvania, Georgia, and other states with Republican-dominated state legislatures that are trending demographically toward the Democrats could take advantage of the decision. That’s tens of millions of citizens, and all of their corresponding Congresspersons and electoral college votes, that could simply cease to be represented on a democratic basis in favor of a destructive right-wing ideology. If Republicans can do away with democracy, there is little hope for expanding civil rights to racial, sexual, and religious minorities that continue to be systematically oppressed. The roadblocks in front of addressing impending climate change and increasing corruption and inequality will only grow larger. This slow, creeping advance of authoritarianism could pervade every part of our civil society and deprive us of the means, under this Constitution, through which to save ourselves and our future.