American democracy – and the evolving way in which it is executed – is facing a series of fundamental questions beyond former President Donald Trump’s election denialism.
The former president’s call to end the Constitution for a 2020 election redo has rightly been met with ridicule and eyerolls (although less condemnation from GOP leaders). But even with Trump still a top contender for a major party’s presidential nomination, there are plenty of other forces circulating with the potential to destabilize American democracy.
The so-called “independent state legislature” theory, for example, got its day before the nation’s highest court Wednesday and, if conservative legislators get their way, could erase a check on state legislatures setting their own rules for federal elections.
Georgia Sen. Raphael Warnock, on the heels of his runoff victory on Tuesday, pointed to another kind of rulemaking from GOP-led state legislatures – specifically restrictive voting laws passed in the wake of Trump’s 2020 loss. He alleged “voter suppression,” alluding to the 2021 law that shortened the state’s early voting period, even though that didn’t stop his voters from turning out to deliver him a full six-year term. Republicans, in turn, pointed to that turnout as evidence that Democratic votes hadn’t been suppressed.
In a rare bright spot for democracy in the wake of the US Capitol insurrection, Walker – unlike Trump after 2020 – conceded his loss. His defeat follows that of many of Trump’s election-denying midterm candidates in swing states last month.
But looking to the next election, there’s a brewing fight over which states should have the first say in the presidential primary process. Democrats like President Joe Biden, for example, have argued they’re trying to democratize the process by giving more diverse states more influence. But the looming changes are primed to create another nuts-and-bolts dispute between the parties and raise questions for everyone else about why the parties should control the system in the first place.
The most core question raised this week is being put to Supreme Court justices. With allusions to politics of the late 1700s and earlier, they dug into three hours of arguments to consider whether everyone has been reading the Constitution wrong for the last two hundred-plus years.
The theory was popularized by a minority opinion from then-Chief Justice William Rehnquist when the Supreme Court decided the 2000 presidential election for George W. Bush – and it has percolated ever since.
The main idea is that the Elections Clause in the Constitution, which refers to state “legislatures” deciding the “time, place and manner” of elections unless superseded by Congress, should not allow for state courts to step in and provide the check and balance they normally do.
The case, Moore v. Harper, was brought by the leader of the Republican-controlled legislature in North Carolina against the state’s elected Supreme Court, which threw out a heavily gerrymandered congressional district map the legislature drew to benefit Republicans.
The leap from Trump’s call to end the Constitution to the independent state legislature theory isn’t that far.
If the US Supreme Court justices buy into the idea that state courts should have no sway over legislatures on elections, CNN’s Joan Biskupic has written, “It would prevent judges from throwing out unfair redistricting maps or invalidating measures that restrict access to the polls.”
It could also allow legislators to meddle in presidential elections, as Trump requested after he lost the 2020 election.
Key conservative justices seemed skeptical of adopting a hook-line-and-sinker approach. CNN’s Ariane de Vogue notes in her takeaways from the arguments that a narrower ruling in favor of the lawmakers is still possible and voting rights experts worry that any help from the Supreme Court could embolden state legislatures, the majority of which are controlled by the GOP.
“The way our democracy is supposed to work is people are supposed to choose the representatives, not the other way around,” said North Carolina Attorney General Josh Stein, who appeared on CNN’s “The Lead” with Jake Tapper Wednesday.
Stein, a Democrat, said that under the congressional map drawn by the legislature, Republicans would have had a 10-4 seat advantage over Democrats in the state’s congressional delegation. Under the map approved by the state Supreme Court and after last month’s midterm elections, the delegation will be an even 7-7 when the new Congress is seated in January.
“The people spoke, not the politicians,” Stein said, calling the independent state legislature theory “truly radical.”
In Georgia, Warnock’s win on Tuesday came despite Democratic complaints that a new election law that curbed early voting there would hurt their turnout.
“Just because they endured the rain and the cold and all kinds of tricks in order to vote doesn’t mean that voter suppression does not exist,” Warnock said. “It simply means that you, the people, have decided that your voices will not be silenced.”
Georgia’s secretary of state, Republican Brad Raffensperger, rejected that idea when appearing on “CNN This Morning” Wednesday, arguing that wait times were minimal across the state.
“There’s no truth to voter suppression,” he said.
It is not clear if Georgia’s results, which followed a disappointing finish for the GOP in twin 2021 Senate runoffs, could force Republicans to reconsider their efforts to discourage early voting and instead push it like Democrats.
Republicans did well this year in some states with restrictive voting laws, like Texas and Florida, but not in states like Arizona.
The fights being waged at the state level over how Americans should be able to cast their preference aren’t going anywhere.
What could very well be moving are the early presidential primaries.
There’s a brewing standoff among Republicans, who have endorsed the recent tradition of keeping the Iowa caucuses along with primaries in New Hampshire and South Carolina as the first states to have their say ahead of 2024.
Democrats, meanwhile, no longer see Iowa and New Hampshire, primarily White states, as their future.
Biden wants South Carolina, the first primary he won in 2020, to go first and to move the primary in the increasingly purple state of Georgia much higher on the calendar.
Iowa’s caucuses have been first since 1972 and New Hampshire has held the first primary since 1920.
Democrats’ desire to start with a more diverse state is not the only reason to boot Iowa from its first-in-line preference spot. Iowa Democrats oversaw flawed and inaccurate caucus results in 2020.
Iowa Republicans oversaw delayed caucus results in 2012 that saw former Pennsylvania Sen. Rick Santorum robbed of momentum from his narrow win after it appeared, wrongly, that ultimate GOP nominee Mitt Romney had won the caucuses.
A key Democratic party committee has backed Biden’s idea, but it might be difficult to enact.
Raffensperger told CNN’s Kaitlan Collins he likes the idea of moving Georgia up in the process, but he can’t do anything unilaterally.
“Whatever we do, we need to have buy-in from both sides of the aisle, both political parties,” Raffensperger said. “They need to start doing some talking to each other.”
In this system, which has evolved over two hundred years but only offers voters two real choices, there’s a lot that happens before the people get to decide.
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