Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.
The foundations for a potential coup of the 2024 election are already being put into place. The very institutions that are supposed to protect our democracy are a big part of the problem.
If Donald Trump steals the election in 2024, as he tried to do in 2020, it will likely be because he and his supporters are laying the groundwork right now. They are infecting key government institutions that can be exploited to thwart the will of the voters.
The Supreme Court is the first major concern. With three Trump appointees, the Court has upheld restrictive state voting rules and deferred to state legislatures on how to run elections, failing to protect the constitutional right to vote. In several cases leading up to the November 2020 election, the Court rejected lower court rulings that would have made it easier for voters to cast their ballots during a pandemic and have those votes count. In case after case, the Court essentially ignored the plight of voters and instead upheld states’ authority to run an election as they see fit.
That undue deference to states did not start in 2020. In a series of cases over the past few decades, the Court has required voters to show with specificity how a voting rule would burden their constitutional rights. But it has credited a state’s generalized interest in rooting out voter fraud, even if the state cannot offer much evidence voter fraud is a real problem that needs fixing. The Court also essentially gutted the Voting Rights Act of 1965, which helped to secure minority voting rights in the face of racial discrimination, both in the Shelby County, Alabama case in 2013 and in a case this past July, in which the conservative majority set out rules that make it much harder for plaintiffs to bring a successful claim that a voting law has a disproportionate effect on minority voters.
States are now emboldened to pass ever more restrictive voting rules, as we have seen in places like Georgia and Texas. Those rules will operate to make it easier for incumbent legislators to stay in power. Instead of a constitutional right to vote, we have a constitutional right for states to administer their elections however they want, with little fear of judicial oversight.
Next, state legislatures are skewing democracy through partisan gerrymandering, as they draw district maps to ensure their side has the best chance of winning a majority of seats. Already, reports suggest Republicans have gerrymandered enough congressional maps to easily flip at least five seats and take over control of the House of Representatives in 2022. Democrats are not blameless on this front, as they have also proposed egregious gerrymanders in places like Illinois. Politicians are choosing their voters instead of the other way around. And states are freer to engage in this gamesmanship knowing the Supreme Court will not intervene, as it ruled in 2019 the federal courthouse doors are closed to claims of unlawful partisan gerrymandering. A gerrymandered legislature cannot be trusted to carry out the will of the voters, which is especially dangerous if there are disputes over Electoral College votes in 2024.
Finally, Trump supporters who believe—without any evidence whatsoever—that Joe Biden did not legitimately win the 2020 election are running for elected positions that will allow them to control the vote casting and counting process. The attempted coup in 2020 did not work in part because Republican election officials such as Georgia Secretary of State Brad Raffensperger refused to go along. Recall that Trump had asked Raffensperger to “find” 11,780 additional votes to allow him to win the state. Raffensperger recognized Trump was asking him to overturn the will of the voters. But if a Trump acolyte such as Rep. Jody Hice, who is running against Raffensperger, wins the seat, who knows if a similar request in 2024 will be rejected. Some state legislatures are also authorizing the potential takeover of local boards of election. Republicans in Wisconsin are reportedly considering a brazen move to disband the bipartisan state election commission, in an attempt to give themselves more authority over elections. Many election officials are leaving their posts in response to a constant barrage of harassment stemming from their work in 2020.
This attack on American democracy is multifaceted and the various strands reinforce each other. It’s a vicious cycle. In 2024, we can’t be sure these institutions will uphold the will of the voters.
What can be done? First, because the Supreme Court is unlikely to suddenly change its jurisprudence to protect the right to vote, state courts must step in to fill the void to strike down the worst partisan gerrymanders and restrictive election rules. State constitutions have language that explicitly protects the right to vote and many also say elections must be “free and equal” or “free and open,” so state courts should use those clauses robustly. Both the North Carolina and Pennsylvania Supreme Courts invoked state constitutional language to invalidate partisan gerrymandering in their states in the last round of redistricting; other courts should now follow their lead.
In addition, we must treat the 2022 election as existential for the continued vitality of our democracy. Secretary of state races in places like Georgia and Michigan are perhaps the most important elections on the ballot, because they will determine who will run the 2024 election in those states. We must elect individuals who are committed to democracy, not just loyal to a particular candidate. We also must fill vacancies in local election offices with people dedicated to democracy.
Finally, Congress must pass meaningful voting rights reform. The 2024 election should be decided by all eligible voters, not just those who are able to jump through the various hoops states have set up. Republicans should negotiate with Democrats in Congress on best practices for election administration and independent redistricting. And if Republicans refuse to even come to the negotiating table, then Democrats will have the moral standing to go it alone and scuttle the filibuster to enact democracy reform.
American democracy barely survived 2020. The attacks on 2024 are already underway. Whether they succeed will depend on what we do right now.