The Laboratories Of (Un)Democracy

I’ve already written about the unprecedented power grab by Republicans in Michigan and Wisconsin in this lame-duck period after the election. In both states, Republican-dominated legislatures passed laws that would restrict the powers of the incoming Democratic governor and had those bills signed by their lame-duck, outgoing Republican governors.

The modern precedent for these actions comes from North Carolina which voted to restrict incoming Democratic governor Roy Cooper’s powers in the lame-duck period after his election in 2016. Cooper was only able to retain some of those powers by challenging those laws in court. And now North Carolina is breaking new ground in partisan power grabs.

There is only one 2018 Congressional race that is still not decided at this time. It is the election in North Carolina’s Ninth District, which the state elections board has still refused to certify because of clear evidence of election fraud committed by the Republican candidate, Mark Harris. An operative working for Harris illegally obtained absentee ballots and then made sure that pretty much the only absentee ballots that would be submitted were votes for the GOP candidate. In addition, early vote totals may have been leaked to the Harris campaign so that he could estimate just how many fraudulent absentee ballots he might need to win. As it happened, Harris only won election by a margin of 905 votes. Further investigation has shown Harris used this same tactic against his opponent in the GOP primary.

As this information became public, North Carolina Republicans took the position that, if any election fraud was proven to have occurred, then a new election should be called. The state party was further relieved when the news of similar problems in the primary came out as it gave the Republican-controlled legislature the opportunity to pass a law requiring a new primary if a new election is called, allowing them to throw Harris overboard.

All that seemed remarkably reasonable from the Republicans, so you knew it couldn’t last. Now the state party has taken an entirely different tack, claiming that there must be absolute proof that the number of fraudulent ballots would have changed the result of the election in order for the state board to order a new one. The GOP executive committee passed a resolution that states “Absent clear and convincing evidence presented in public by the State Board of Elections that any alleged voting irregularities changed the outcome of the race or there is a substantial likelihood it could have been changed, the law requires Dr. Harris to be certified as the winner”.

As the Democrats noted in their response, “This is an attempt to steal an election after being caught red-handed. It’s shameful, harmful to our democracy and North Carolina voters, and undermines the integrity of our elections”. But that’s never stopped North Carolina Republicans before.

Believe it or not, however, this may not be the worst attack on election integrity that North Carolina Republicans have made since the 2016 election. Through a variety of tactics and judicial appeals, North Carolina has managed to keep in place unconstitutional and then partisan gerrymanders for this entire decade. The chances that may finally end became greater when Democrats won a 5-2 majority on the State Supreme Court after the November elections. Voting rights activists, taking their cue from what happened in Pennsylvania, filed a suit challenging the state’s gerrymandered legislative districts as a violation of the state’s constitution which guarantees all its citizens have “substantially equal voting power”. As in Pennsylvania, a ruling by the State Supreme Court that the state constitution was being violated could not be challenged in federal courts where the US Supreme Court has shown its total indifference to partisan gerrymandering and voting rights in general.

With the prospect that they would not be able to access the protection of the federal courts that had allowed their gerrymanders to stay in place for every election this decade, Republicans are attempting to use those federal courts to prevent any state Supreme Court decision occurring until it is too late to change them for the 2020 election.

The Republican-controlled General Assembly, which has already abrogated the power from the Attorney General to defend the gerrymander in court as part of its earlier power grab against Cooper, filed a motion to move the voting rights case to federal courts, using some unusual arguments. The Assembly now claims the state case violated the Voting Rights Act (VRA), and the 14th and 15th amendments that cover equal protection and voting restrictions based on race.

The ridiculousness of these arguments is hard to overstate. Their arguments based on the 14th and 15th amendments basically amount to the Assembly stating that it would be impossible to redraw legislative districts without discriminating against racial minorities. The fact that the unconstitutionally racially gerrymandered districts were specifically replaced by partisan gerrymanders in 2016 and 2017 on orders from the federal courts federal puts lie to that claim by the Assembly. In essence, the Assembly is saying it is impossible for them to draw districts that are not racially gerrymandered. In addition, the claim that new districts would violate the Voting Rights Act is even more laughable because the Assembly specifically stated in federal court that the new districts were drawn without consideration of the VRA because the Assembly believed that the VRA did not require it. Essentially, the Assembly is arguing against the very case it made just two years ago,

As the Slate article summarizes, “It’s easy to see what’s going on here. The General Assembly must know its arguments are meritless. It recognizes that, at some point, the North Carolina Supreme Court will probably invalidate its gerrymander. So it is trying to put off that decision for as long as possible by using the federal judiciary to gum up the works.” North Carolina Republicans are just reprising a successful tactic of using the slow moving wheels of justice in order to deny democracy.

While North Carolina has led the way in lame-duck shenanigans, Michigan has further expanded the playing field. The Republican-controlled legislature considered nearly 400 bills in the lame duck session and passed over 300 of them in order to send them to Republican governor Rick Snyder’s desk before he is replaced by Democrat Gretchen Whitmer. As I’m sure we’ll discover, this was just one last orgiastic feast at the government trough for the Michigan GOP’s rich and corporate donors before Whitmer took charge. One of those bills passed severely weakened the minimum wage and sick leave law that the legislature intentionally passed before the election in order to keep those issues from appearing on a ballot initiative. Now that the election has passed, it was time to gut the original law. In addition, bills passed would make it harder to get initiatives on the ballot, make it harder to register to vote on election day despite a ballot initiative that did pass that intended to make voting easier, and one to protect dark money donors.

Judge Louis Brandies is credited with the phrase describing the states as the “laboratories of democracy”. Increasingly, however, Republicans are using them as the laboratories for one-party rule.