Democracy Defended, Peril Persists

American democracy dodged a bullet with the Democrats’ historic midterm election results. In the post-war era, there have been only three elections where the president’s party lost ten or less House seats while also not losing a Senate seat – 1962, 1998, and 2002. It is also the first time in the post-war era that the president’s party posted a gain in gubernatorial posts and had every incumbent Senator re-elected in its first midterm election. Democrats also made midterm history for a party in power by flipping four state legislative chambers. Republican anti-democracy election subverters were defeated in elections for critical positions across the country. GOP election subverter candidates for secretary of state in Arizona, New Mexico, Nevada, Kansas, Michigan, and Minnesota all lost, as did GOP election subverter candidates for governor in Arizona, Michigan, Wisconsin, Pennsylvania, and Massachusetts. Republican election subverter Senate candidates also lost in Arizona, Nevada, New Hampshire, and Pennsylvania. Supporters of the right to healthcare that includes abortion won every ballot initiative in the five states – Kentucky, Michigan, Vermont, Montana, and California – where that was on the ballot.

The election was a strong rejection of the Republican party in general, election subverters in particular, as well the Supreme Court with its extraordinary overreach on abortion, the associated implications for privacy rights in general, and its apparent open corruption. For those interested in the survival of American democracy, the election was a remarkable relief, especially considering Biden’s (un)popularity as well as the current bout of inflation caused by supply chain issues associated with Covid, the war in Ukraine, and the underinvestment in US infrastructure, particularly housing, ever since the Great Recession.

And yet…Yes, dodging the bullet in this election was critical, but all that means is that we get to fight to save American democracy from the autocratic and theocratic Republican party and associated anti-democratic forces for another day, the next election. The truth is the anti-democracy forces are probably stronger and certainly more strident in the wake of this election. Not only did Republicans win control of the House, but the House GOP caucus will probably contain over one hundred election deniers. While swing-state election deniers suffered defeat, their compatriots in deep red states such as Wyoming, Idaho, Indiana, Alabama, and Florida won resounding and frightening-for-the-future victories. In Arizona, GOP election subverters in one county, one of whom was at the 1/6 insurrection, refused to certify November’s election despite a Republican winning the House seat there. Losing GOP candidates for governor and attorney general in that state are still denying the results. The Arizona refusal to certify builds on similar Republican refusals in New Mexico and Pennsylvania in the aftermath of primary elections earlier this year. In all three cases, courts were required to intervene.

With the margin so thin for the GOP in the House, it is easy to look at a handful of races where perhaps Democrats could have done better and retained control. But the reality is that the courts, specifically the Supreme Court, determined the GOP victory more than anything else. While not as brazen as stealing the presidency in 2000, the Court’s decisions regarding voting rights in general and specifically the electoral maps used in this election ended up being determinative for the GOP. Using the Supreme Court’s Purcell principle that restricts changes close to an election, courts allowed electoral maps which every federal judge involved ruled illegal under racial or partisan anti-gerrymandering laws to still be used in Ohio, Georgia, Alabama, and Louisiana. Those illegal maps cover around 10% of the total seats in the House and every one benefitted Republicans at the expense of Democratic voters.

The story of Ohio’s illegal map is truly indicative of just how damaged our democracy has become. In both 2015 and 2018, Ohio voters overwhelmingly passed an amendment to the state constitution that would eliminate partisan gerrymandering. With 2022 being the first redistricting opportunity, the Republican-controlled redistricting commission simply ignored that new constitutional requirement and drew a heavily gerrymandered electoral map, which the State Supreme Court then ruled unconstitutional. This process was repeated for four iterations until finally the state legislature got a federal court to declare that the unconstitutional map must still be used because of the Purcell principle. Importantly, one of the arguments the state made before the federal court was that the State Supreme Court had no authority to dictate how the state legislature ran elections, exactly the “independent state legislature” theory that is in front of the US Supreme Court this term. In what’s basically a 55-45 red state, Republicans won ten House seats and Democrats won five and in only two of those 15 races did the winner receive less than 55% of the vote, both won by Democrats.

What happened in Ohio stands in stark contrast to what happened in New York. There Democrats tried to maximize their advantage through gerrymandering by having the state legislature draw the electoral map after the independent redistricting commission could not agree on one. The State Supreme Court declared that map a violation of the state constitutional amendment eliminating extreme partisan gerrymandering and ordered a special master to draw the map instead. The result was that Democrats lost four House seats. Yes, the New York Democratic party has a lot to answer for its efforts (or lack thereof) in the election, but the fact is that the illegal gerrymander that would have helped Democrats in New York was blocked by the courts and the illegal gerrymander that helped Republicans in Ohio was allowed by the courts.

Ohio Republicans ignoring the expressed will of their state’s constituents and a state constitutional amendment is just a reprise of what happened in Florida. In 2018, the state overwhelming passed a constitutional amendment that allowed former felons to regain their right to vote, potentially allowing hundreds of thousands of Floridians to vote. But the Florida legislature then added a requirement that all felons fulfill their legal financial obligations, including fines and fees they incurred while incarcerated, before they could be re-enfranchised, essentially creating a poll tax for ex-felons. Unsurprisingly, however, the state was often unable to tell prospective ex-felon voters how much they actually owed, making it difficult for them to know whether they were actually legally allowed to vote. In 2018 a federal court upheld this process, allowing the state to avoid providing any accounting of obligations owed by a prospective voter. Just weeks before the 2022 election, DeSantis added to this uncertainty by getting his state “election integrity” force to indict 20 individuals for voter fraud, all of them ex-felons. Every one of them had applied for and received a valid voter registration card from the state. These cases have collapsed when they finally reach court, but the voter intimidation factor had already had its effect.

DeSantis also engaged in the gerrymandering game, not only sabotaging a bipartisan effort at redistricting in the state legislature but also taking the unprecedented step of proposing his own redistricting maps that eliminated two Democratic majority-minority districts. A state judge ruled the DeSantis map an illegal dilution of minority voting rights, but that decision was overturned on appeal and the State Supreme Court refused to even take up the case, bizarrely claiming it had no jurisdiction, a kind of silent nod to the independent state legislature theory.

As noted earlier, Democrats won admittedly tight election races for governor, attorney general, and secretary of state in both Wisconsin and Arizona, though the Arizona attorney general’s race will go to a recount. Democrats also won the Senate seat in Arizona pretty handily and lost the Senate race in Wisconsin by about 27,000 votes. One would think, therefore, that the House seats in those states would be pretty evenly divided, even if you accounted for some more than usual split-ticket voting by Republicans this year. Instead, the GOP won 6 of the 9 seats in Arizona and 6 of the 8 seats in Wisconsin. What the results illustrate is the power of gerrymandering and the ability of even “independent” redistricting commissions with partisan members to skew the electoral maps, as was the case in Arizona.

Wisconsin Democrats have won more votes than Republicans a number of times over the last decade but can barely keep the GOP from gaining a supermajority in the state legislature, much less gain a simple majority themselves. And gerrymandered Republican state legislatures keep Democrats who are elected from being able to govern. In 2018, the Wisconsin Republican legislature stripped the incoming Democratic governor, Tony Evers, of certain powers. They have refused to confirm many of Evers’ appointments to certain offices and Republicans who held those positions have refused to leave even though their terms have expired. Now the GOP has gerrymandered their way to two-thirds control of the State Senate which gives them the power to impeach and remove the governor and/or any of his cabinet. In Ohio, the gerrymandered Republican legislature has moved to strip powers from the State Board of Education now that Democrats have finally won control of that body.

The Supreme Court’s decision to allow Alabama’s illegal electoral maps stand under the Purcell principle did not specifically rule on the merits of the case. The reality is that it appears the conservative majority will use the Alabama case and others like it to hack away another part of Section 2 of the Voting Rights Act, effectively taking less than a decade to neuter the Act in its entirety. The radical conservatives on the Supreme Court have entirely reconstructed how we run elections in just a little over a decade with the opening of the floodgates of corporate and dark money, including foreign money, in the 2010 Citizens United decision; the demolition of Sections 4 and 5 of the Voting Rights Act in 2013 Shelby v Holder decision; the elimination of other protections in Section 2 of the Voting Rights Act in the 2020 Brnovitch decision; and the endorsement of partisan gerrymandering in the 2019 Rucho decision.

The electorate in general does not seem to have fully internalized, nor has the media accurately conveyed, just how radically the way we run elections today has changed from what was the norm just two decades ago. Ron Johnson’s senatorial campaign was funded to the tune at least $3 million by just three billionaires. Dark money groups spent over $1 billion on the 2020 election. States like Wisconsin are democracy deserts that have been gerrymandered into one-party rule. There has been an explosion of voting restrictions, exemplified by aforementioned Florida ex-felon poll tax and the absurd process we just saw in Georgia where you are given a form to fill out and a number; when your number is called, your form gets processed and then you sign it; then you are given a green card that allows you to access a real voting machine where you have to respond to a number of prompts before you can actually cast your ballot; when you are finished, the machine spits out a sheet which you then have to walk over and feed into a reader; you have finally voted. The reason there are hours-long lines to vote is because voting is designed to cause hours-long lines so people will not have the time or get fed up waiting to actually do it.

(BTW, did you ever wonder why Georgia, unlike every other state in the country except Louisiana, even requires a runoff election when no candidate gets 50% of the vote? The state implemented runoffs in 1964 with the specific intent of diluting Black voting power and ensuring a white candidate would win election after a massive increase in Black registration in the early 1960s and a Supreme Court ruling that invalidated the state’s county unit electoral system that privileged white rural voters resulted in wins for less segregationist candidates. And now that the runoff system isn’t producing the desired results, the Georgia GOP will change the rules again. One of my favorite tropes from the “everything is just fine” brigade of centrists is their retort to Trump’s claim of election rigging by pointing out that actually doing so would be impossible because in the US every election consists of hundreds of smaller elections. This, of course, seems to blithely ignore the fact that Black voters were effectively totally disenfranchised for nearly a century, not because vote totals were rigged but because the electoral laws made it impossible for them to vote.)

Nor has the electorate or the media firmly grasped just how much of a power grab the Supreme Court and certain federal courts have also made over the last decade, seizing power from Congress, the executive branch, states, and even lower courts themselves. The Voting Rights Act that the Supreme Court has basically eviscerated was reauthorized by an almost unanimous Congress in 2006. Citizens United undid the McCain-Feingold campaign finance laws that Congress passed with bipartisan support in 2002. The Court created an option for states to opt out of Medicaid expansion that had no legal basis other than Justice Roberts’ desire to placate his conservative critics. The Court has blocked federal agencies’ ability to regulate environmental and labor issues, as well as states from regulating public health and public safety, as both had done without issue for decades. Those who object to the policies of a Democratic president or Congress can file absurd cases in certain federal districts where they can not only guarantee the judge that will hear the case but also be almost certain of obtaining the outcome they desire and a concurrent nationwide injunction. The Supreme Court continually ignores longstanding procedural rules, hearing cases before the full appellate record has been completed or using the shadow docket to essentially make merit rulings.

This week, the Court heard a purely speculative case where no discrimination has actually occurred in order to fuel its desire to create a religious exemption for discrimination. The Court has ignored decades of precedent to allow states to force women to give birth while also creating new rights for favored groups that undercut existing rights of others. And if the Court upholds the independent state legislature theory, which it appears a majority of the conservative justices are inclined to do, it will essentially destroy American democracy, stripping the right of state Supreme Courts to interpret their own state constitutions and abrogating that right to the Court itself. As legal professor Mark Lemley notes, the Court has become an “imperial” court that largely exerts its power “not by giving power to an entity whose political predilections are aligned with the justices’ own, but by undercutting the ability of any entity to do something the justices don’t like”.

Earlier this year, when the GOP prospects for winning Congress seemed quite high, Mitch McConnell was asked what the Republican legislative agenda might be. He responded, “That is a very good question. And I’ll let you know when we take it [the majority] back.” There is a reason that Republicans have no legislative agenda and that is because the courts that McConnell has stacked over the last two decades will take care of their agenda for them. Yes, we all know that Republicans would pass more tax cuts for the rich and gut Social Security and Medicare, as Rick Scott stupidly proposed, but virtually no Republican actually runs on those issues because they are electorally toxic. As Ian Millhiser writes, “Yet while the party appears to have no legislative agenda, it’s a mistake to conclude that it has no policy agenda. Because Republicans do: They have an extraordinarily ambitious agenda to roll back voting rights, to strip the government of much of its power to regulate, to give broad legal immunity to religious conservatives and to immunize many businesses from a wide range of laws. It’s just that the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court.”

The Republican party is a minority party. It has won the popular vote for presidency just once since 1988, a 3 million vote margin for the war-time incumbent Bush in 2004. It hasn’t represented the majority of Americans in the US Senate in over 20 years and relies on the Constitution’s preference for land over people for even relevance in that body. Today, Senate Democrats represent 58.5% of Americans but can barely eke out an outright majority. The GOP increasingly relies on gerrymandering, voter suppression, and compliant courts to compete in the House. Its domination in certain state legislatures relies on similar tactics. Its policy agenda is toxic and instead the party focuses on ginning up culture war issues and faux scandals to motivate its increasingly violent base. It has created its own vast yet insular media universe that feeds and foments fear, hatred, and conspiracy theories among its largely white, exurban, and rural base that is increasingly removed from the economic engines of the country.

The GOP party leaders certainly understand their minority position and a portion of their base does as well, while the remaining portion has fallen down the rabbit hole of conspiracy theories their leaders have offered for their own failure. The result is a desperate game of scapegoating – overt racism, anti-Semitism, anti-LBGTQ, anti-women, anti-Asian, election denial, political violence, and domestic terrorism.  The evaporation of the red wave into not even a red ripple has only exacerbated that scapegoating with even Trump now the target of blame, while calls for overthrowing the government have increased. The former president has declared the Constitution must be discarded and he returned to power. The party intellectuals are claiming elections need to be abandoned.

We are also clearly now facing a significant and probably sustained domestic terror threat. The 1/6 insurrection should have made that abundantly clear. Mass shootings, whether politically motivated or not, are a daily occurrence. We are seeing increased displays and threats from armed vigilantes, mass killings of gay and trans people, more attacks on Jews and synagogues, and continued state violence against Blacks. There is an apparently highly coordinated attempt across multiple states to disrupt the power grid, in an apparent effort to sow domestic unrest that will be exploited by right-wing extremists. Republican leaders don’t even bother to pay lip service to the victims of this political violence anymore, nor to decry the calls for ending the constitutional order and overthrowing the government by force if necessary.

The important thing to note is that the targets of the Republican right are also, and have been for some time, the same targets of the Supreme Court. The conditions that helped create the authoritarian GOP were in fact created by the Court. Its rulings have made it virtually impossible to convict a politician of accepting bribes. The Court’s fraudulent interpretation of the Second Amendment and its embrace of “stand your ground” laws are largely responsible for the ease with which violence can be used while providing the legal cover for the tolerance of that violence. The Court has made it abundantly clear with its decisions on the Muslim ban, abortion rights, religious requests from death row prisoners, and other religious exemptions that the only religions it cares about are Christian. We clearly see a similar approach in the Court’s decisions to give primacy to discriminatory religious views over the rights of gay and trans people. Likewise, with Jewish views on abortion. With its Dobbs decision, the Court is also signaling its indifference to the right of privacy for both women and the LGBTQ community. Decisions on voting rights, gerrymandering, no-knock warrants, and qualified immunity are all, in their own way, green-lighting state sponsored attacks against Blacks. Those gerrymandering decisions provide Republicans with political power far beyond their voting strength. The deference shown to executive power under Republican administrations, the slow-walking of cases and sometimes outright refusal to involve itself in support congressional oversight of the executive branch when officials simply defy valid subpoenas has only encouraged the authoritarians in the Republican party. The Court’s willingness to involve itself in cases before the full appellate record has been completed has emboldened lower courts to create an almost lawless environment with their increasing willingness to hear ludicrous legal arguments, discard precedent, and overturn existing law in the hopes the conservative Court will hear and accept their arguments. The independent state legislature theory, which would effectively end democratic elections in this country, itself originated in the Supreme Court as part of the opinion installing Bush as President. Finally, the willingness of the Court to flagrantly ignore any ethical standards that apply to other judges and attack those who would propose binding ethical rules on the Court also indicate its own authoritarian impulses.

Despite the Democrats’ remarkable results this election, our democracy is still in grave danger. The authoritarian right is both angry and determined for power. The GOP may move on from Trump, but it will probably be to an equally and perhaps more capable and vicious autocrat like DeSantis or someone like him. As Ruth Ben-Ghiat writes, “Authoritarianism requires the creation of legal frameworks that then allow political enemies to be harassed and silenced on a grand scale”. We usually think of an autocrat gaining power and then creating that legal framework. But what we have seen in this country is the reverse. The Republican party built the necessary legal framework over decades and thereby created the conditions for an autocrat to gain power. As we saw in 2000 and in multiple elections over the last decade, the courts, and more specifically, the Supreme Court, are actually determining who governs rather than the voters and providing the legal framework that allows the Republican party to harass and silence its enemies. Until we find a way to rein in the power of the Court, the conditions for autocracy will remain and our democracy will be under threat.