American democracy suffered two brutal blows on 6 January.
The first has been seared into the national psyche: costumed insurrectionists ransacking the US Capitol, attacking Capitol police, and interrupting the constitutionally mandated electoral college count. They got closer than anyone could imagine to Vice-President Mike Pence and other terrified leaders, some hidden behind makeshift office-furniture barricades.
Then, with the marble corridors still stained with blood, 147 elected Republicans maneuvered across broken glass only to vote with the insurrectionists. Around 11pm, a majority of House Republicans voted to reject free and fair election results from Arizona; two hours later, as a weary nation slept, a similar number refused to accept results from Pennsylvania.
One year later, it’s the second band of insurrectionists, the ones wearing suits and ties, that pose the most serious threat. The next attempted coup will not be a violent overthrow of the Capitol, but a carefully plotted and even technically legal one, subverting election machinery and exploiting various constitutional loopholes. It is well under way. Its plotters have learned important lessons from last year’s rushed and often-buffoonish dress rehearsal. New laws have been passed by state legislatures under the pretext of halting “election fraud” that will instead abet the next big lie. It’s frighteningly imaginable to see how it succeeds.
These are the steps that Republicans are undertaking, now, to create a different outcome next time.
1. Gerrymandering swing-state legislatures. It all begins here. Any effort to change election laws or to argue that legislatures have the power to appoint electors themselves requires Republican control of battleground state legislatures.
2. Restricting access to the polls. In 2021, 19 states enacted 34 laws making it more difficult to cast a ballot. They included 2020’s fiercest battlegrounds, Arizona (decided in 2020 by just 10,457 votes) and Georgia.
3. Capturing electoral administration. Republican legislatures in eight states, sometimes overriding the vetoes of Democratic governors, have claimed partisan control of crucial electoral responsibilities or shifted them away from elected secretaries of state. Georgia Republicans censured Brad Raffensperger, the Republican secretary of state who refused to be cowed by Trump’s attacks on the electoral process, then removed him as chair of the state election board – and seized that power for the legislature itself. Another law gives this board the power to claim control of the vote-counting process in individual counties, such as heavily Democratic Fulton county, home to Atlanta. Arizona barred its secretary of state from representing the state in litigation defending its election code – that is, until 2 January 2023, when the Democrat who currently holds the position leaves office. Texas now requires the governor, lieutenant governor and the house speaker each to sign off on any grants over $1,000 to local election boards, grants having been a popular method of expanding voting access in cities and rural areas in 2020 when states cited financial reasons for shuttering precincts.
4. Pressuring – and criminalizing – the work of election officials. Many new state laws don’t simply make it harder for citizens to vote, they make it tougher for non-partisan election workers to do their jobs. Georgia, Texas and Florida have created civil penalties and fines of up to $25,000 for minor, technical infractions – for the kind of help non-partisan officials offer when needed, or obstructing the view of partisan poll workers – and even opened them to criminal prosecution.
According to a Brennan Center and Bipartisan Policy Center study, a third of election workers report feeling unsafe in their jobs. As many as 25% say the toxic, bullying climate could cause them to leave their jobs. Their replacements, in positions that had once been non-partisan, non-competitive and volunteer? The big lie’s truest believers, seeking the offices some believe stole the 2020 election from them. This is a “five-alarm fire”, the Michigan secretary of state, Jocelyn Benson, told the New York Times.
5. Targeting key elections in 2022. The only thing that has prevented Florida/Georgia/Texas-style omnibus voting restrictions in deeply gerrymandered Wisconsin, Michigan and Pennsylvania are Democratic governors with veto power. Should Republicans claim those offices in 2022, anything is possible. Republican lawmakers in Wisconsin and Pennsylvania have previously proposed allocating electoral college by congressional district rather than statewide, which would exacerbate the impact of partisan gerrymanders and probably benefit Republicans in otherwise Democratic-leaning states. Under the Wisconsin proposal, Trump would have won eight of 10 electors even though Biden received more votes.
Trump has endorsed a former Fox anchor as the next governor of Arizona who he said “will fight to restore Election integrity (both past and future!)”. The two leading Republican candidates for Arizona’s secretary of state, meanwhile, are two state representatives, one of whom attended the 6 January Capitol riot. The other sponsored a bill that would have allowed the legislature to reject the certification of electors, potentially overturning free and fair results.
6. Convincing the base. According to a new NPR/Ipsos poll, two-thirds of Republicans believe that “voter fraud helped Biden win the 2020 election”. In a new University of Massachusetts poll, 71% of Republicans said Biden was not legitimately elected president. A third of Trump voters told NPR they believe the conspiracy theory that the 6 January attack was a false-flag operation by “opponents of Donald Trump, including antifa and government agents”.
Trump couldn’t overturn the 2020 results, but he achieved something perhaps nearly as damaging: The “big lie” not only took hold, but it has become sacred to large majorities of angry Republicans convinced that Trump was cheated out of a second term. If this same fealty to phony fraud claims drives Republican elected officials in Congress and state legislatures in 2024, it’s disturbingly easy to imagine competing sets of electors emerging from states won by a Democratic candidate but controlled by a Republican legislature, forcing a constitutional showdown and testing the powers of state legislatures over electors.
7. Ensuring that the courts won’t save us. Beware the Independent State Legislatures doctrine (ISL). Once a stealth effort in Federalist Society legal circles, this extreme reading of the US constitution has as many as four supporters on a US supreme court packed with conservatives. It argues that the constitution gives state legislatures the sole authority to set all election rules – including the assigning of electoral college votes – independently, and immune from judicial review. Taken to its furthest edge, it effectively concludes that there can be no possible checks and balances on state legislatures’ authority when it comes to election law. It might sound bonkers. But in February last year, when the US supreme court dismissed as moot a challenge to Pennsylvania’s absentee ballot extension, three justices dissented and cited the ISL.
If 2020 repeats itself in 2024 – a Democratic candidate with a 7 million-vote edge in the popular vote, the same slender margins in Arizona, Georgia and Wisconsin, and embittered Republicans controlling gerrymandered legislatures – it’s hard to imagine the system holding quite the way it did, just barely, a year ago.
Of course, Republicans could always win the 2024 election outright. But make no mistake: with preparations like this, they’re ready either way. They have almost three years to perfect this playbook. Those of us who believe in American democracy have much less time left to prevent it – and a much more complicated road.