‘Election subversion’ emerges as dangerous new threat to democracy
Partisan hacks usurp right to nullify ballots, ignore voters, toss out results
With voting rights moving to the top of the agenda, recent ominous developments have shifted the focus of the debate.
While access to the polls and counting the ballots has dominated the discussion since the 2020 election – and are directly addressed in legislation now stalled in Congress – a new, more dangerous threat to election integrity has emerged recently: many are calling it “election subversion.”
It encompasses a plethora of new state laws that have been passed or introduced to give partisan politicians at the state level the power to toss out or ignore the views of the voters expressed at the polls.
The longstanding practice of having non-partisan election professionals certify election results has been thrown out and this power has been usurped by partisan members of the majority party.
In states where this has been passed (or is being seriously considered), that means Republican lawmakers could play a central role in determining the winner.
Scholars agree the only viable way to thwart this power grab would be to reform and strengthen the ambiguous and obsolete Electoral Count Act of 1887.
Election subversion has become the single biggest threat to democracy in the US.
State-level legislation on voting rights is where all the action has been for almost a year, and a comprehensive and authoritative database of such laws can be found at The Voting Rights Lab, that describes itself as “a nonpartisan organization that brings state advocacy, policy, and legislative expertise to the fight for voting rights.
“We work in partnership with organizations across the country to build winning state legislative campaigns that secure, protect, and defend the voting rights of all Americans.”
To follow changes to state laws in real time, a team of policy experts has produced the State Voting Rights Tracker “a first-of-its-kind dashboard where we track new state voting laws and regulations and provide detailed analysis of all pending changes in all 50 states throughout the year.”
The project raised the alarm about election subversion in it’s Sept. 29 summary: A Threat to Our Democracy: Election Subversion in the 2021 Legislative Session which detailed developments in eight states.
“[A] quiet but deeply disturbing legislative trend has emerged – one that threatens not just voter access but the most elemental foundations of our democracy,” it reported. This threat is apparent in “bills shifting the allocation of power in election administration to partisan actors, criminalizing non-partisan elections administrators and initiating sham election reviews to instill further doubt in elections.”
According to its tracker, already more than 180 bills shifting election authority had been introduced by September.
“These new laws have taken a variety of forms. Some give partisan actors more power to shape and control election outcomes, or limit the autonomy of local election officials. Some give partisan poll watchers the ability to intimidate and harass voters. Others criminalize election workers for simply doing their jobs.
“The most concerning bills would enable partisan state legislatures to overturn election results.” (emphasis added)
Removing non-partisan officials from the process and giving the final say-so to partisan political hacks clearly poses the biggest danger. But it is not the only one threatening election integrity.
“Election subversion bills have either been enacted or seen significant momentum in key battleground states, including Arizona, Florida, Georgia, Nevada, Ohio, Pennsylvania, Texas, Wisconsin, and others,” it notes. These are exactly the states which decided the outcome of the presidential election in 2020 and could prove pivotal in both 2022 and 2024.
“Taken together, these actions – legislative and otherwise – threaten to inject partisanship where it never belongs: into our election systems themselves. This dangerous crop of legislation has driven toward several alarming outcomes:
Legislatures interfering with nonpartisan local election administration and consolidating power to administer and determine elections results themselves.
Lawmakers proposing or initiating costly, highly partisan election reviews that undermine election security and erode trust in our election system.
Legislatures accelerating the mass exodus of experienced election officials by imposing chilling criminal penalties, crippling civil penalties, and parroting disinformation that results in serious safety threats.”
The impact of election subversion legislation, if it takes hold, is likely to be felt far beyond the 2022 midterms and the 2024 presidential election.
After a detailed analysis of the major topics covered by this legislation, the conclusion reached in this article is nothing short of alarming:
“Unchecked, this trend could destroy the credibility of our election system as a whole.” (emphasis added)
Another authoritative source on election subversion legislation is the Brennan Center for Justice, which summarized its tally of state-level voting rights laws on Dec. 21 in Voting Laws Roundup: December 2021.
“Between January 1 and December 7, at least 19 states passed 34 laws restricting access to voting. More than 440 bills with provisions that restrict voting access have been introduced in 49 states in the 2021 legislative sessions.
“These numbers are extraordinary: state legislatures enacted far more restrictive voting laws in 2021 than in any year since the Brennan Center began tracking voting legislation in 2011.”
Its year-end report included this additional worrying reference:
“A disturbing legislative trend from 2021 is the launching of illegitimate partisan reviews of election results in a number of key states. Specifically, partisan state legislators have empowered other partisan actors who are not part of the election administration process to access and review ballots and other materials from the 2020 elections.”
The reference was to a Nov 8 article The Election Sabotage Scheme and How Congress Can Stop It in which it suggested The Freedom to Vote Act (stalled in the US Senate) could halt this growing antidemocratic threat.
“Over the past few months, the drive to allow partisan sabotage of the election process had a series of frightening public successes,” it reported.
“The Arizona State Senate concluded its partisan review of the 2020 election in Maricopa County, a nakedly political bid to feed disinformation and conspiracy theories.
“The Georgia legislature passed a bill along party lines to remove the elected secretary of state – who stood up to requests to overturn the 2020 election results – as chair of the State Elections Board and replace him with a hand-picked chairperson.
“In Texas, the governor signed a law that targets local election officials and poll workers with new penalties, empowers partisan poll watchers, and cuts down on access to voting.”
In states like Missouri and Oklahoma, legislators introduced even more extreme bills that would have allowed them to directly overturn legitimate election results.
“While these bills did not pass, their mere introduction is a shocking affront to democratic norms,” the Brennan report noted.
“[T]hese laws and proposals, often added quietly and late in the legislative process, would change who runs elections, who counts the votes, and how. They go beyond vote suppression to enable direct election subversion. (emphasis added)
“Legislation enabling partisan interference in election administration is part of a broader “election sabotage” or “election subversion” campaign, a national push to enable partisans to distort democratic outcomes.”
While the partisan sabotage bills have not been enacted into law at the same pace as vote suppression bills, they are a new and dangerous twist on the same legislative agenda.
“Each demands urgent intervention by Congress to prevent irreparable corruption of our electoral system.”
In a Jan. 8 article in The Atlantic addressing the only potential solution so far to this vexing problem, The Bad Deal Democrats Should Take, David Graham suggested that reforming the Electoral Count Act might be “a narrow fix, insufficient for the many problems in the voting system – but it’s better than nothing at all.
“The Electoral Count Act was a subject of concern – and machinations – before January 6, 2021. Enacted largely in response to the contested 1876 presidential election, the law was designed to make sure that a process was in place for certifying winners of presidential races.
“The law’s ambiguous language was a target of derision almost from the start – a year after its passage, a political scientist called it “very confused, almost unintelligible.”
Reforming, strengthening and updating it would need to be a bipartisan project, but it is urgently necessary, according to one expert quoted by Graham:
“Democrats and Republicans need to come together and pass legislation that targets the risk of election subversion,” Rick Hasen, an election-law expert at UC Irvine, told me. “It’s even more urgent than voter suppression, which is a real problem. Voter suppression is a problem, but a bigger risk we face is that election losers could be declared winners, and that’s at the top of my list.”
Graham then notes that the ECA could allow Congress to reject duly chosen electors and install the election’s loser as president.
“Prudent reform might clarify exactly the vice president’s role, as well as make explicit – and limited– the ability of Congress to challenge or reject electors except in extreme circumstances.”
Graham notes the tentative feeler put out in recent days by Senate Minority Leader Mitch McConnell, who raised the possibility he might support reform of the ECA.
“ECA reform would address only some narrow problems, but if Democrats can’t get everything they want, they shouldn’t foreclose the opportunity to get something,” Graham writes.
Despite multiple attempts in recent years to eviscerate the Voting Rights Act of 1965 by Republican state legislatures and the Supreme Court, the historical record shows they have been largely ineffective.
A record number of voters cast ballots in the 2020 presidential election, during a pandemic!
But, even with new limits on access to the polls, draconian penalties for honest mistakes by election officials, and unleashing so-called “poll watchers” to interfere with election administration, this is not enough for the partisans.
There is nothing more threatening to election integrity than the subversion contained in the new state laws that grants power to a political party to adjudicate the outcome of elections. If these laws succeed, and are not rendered moot by strong federal legislation, it will mean the end of free and fair elections in America for the foreseeable future.
Election subversion is the newest and most imminent danger to our democracy.
How does this slow process of eviscerating voting results compare to other countries which moved from fledgling democracy to autocracy? Is that how it happens?