How to (Legally) Steal an Election
Like in 2020, Republicans are gunning to overturn the 2024 election. This time, they’ll succeed.
Via Getty Images.
In what should come as a surprise to nobody, the Supreme Court is planning another disastrous ruling.
No, I’m not talking about Dobbs v. Jackson Women’s Health Organization, the June ruling that overturned the legal precedent that women have a right to abortion (which I’ve pontificated about before). I’m not even talking about West Virginia v. EPA, another catastrophic June decision that sharply limited the Environmental Protection Agency’s ability to regulate carbon dioxide emissions. No, this decision is different. While it’s one you’ve almost certainly never heard about, its implications are even more severe than Dobbs or West Virginia. The future of American democracy is literally on trial, and five unelected political partisans are itching for the electric chair.
To understand what’s going on here, let’s start with a word you might have heard recently: gerrymandering. In the United States, state legislative and congressional district lines are redrawn every ten years after the national census, in what’s known as redistricting. But in most states, redistricting power is held by the state legislature, meaning that state legislatures can strategically redraw district boundaries in order to benefit the party in power. While both parties have been gerrymandering electoral maps for centuries, Republicans have especially exploited this tactic in recent years, mastering the art of “packing” dense Democratic areas into just a few districts to limit the number of seats they get, and “cracking” the power of Democratic voters elsewhere by grouping them with larger Republican populations. A gallery walk through some of the most egregiously gerrymandered electoral maps can immediately show how unfair the practice can be, on either side of the aisle:
Maryland’s 3rd congressional district stretches from Annapolis to some areas of Baltimore, Howard, and Montgomery. The district was gerrymandered by Democrats after the 2000 and 2010 elections, but redrawn boundaries will go into effect after 2023. Image in the public domain, via Atlas Obscura.
North Carolina’s 12th congressional district was drawn by Republicans to deliberately “pack” Black voters in Winston-Salem, Greensboro, and Charlotte into just one district. Both North Carolina’s congressional and state senate maps were found unconstitutional by federal courts on the basis of racial gerrymandering. Image in the public domain, via Atlas Obscura.
After North Carolina’s congressional district map was found unconstitutional, Republicans redrew it based on party affiliation instead of race. The majority-Democratic city of Greensboro was “cracked” into two districts (Districts 6 and 13), making Democrats in the city the minority in the 2018 midterms. This map was subsequently overturned. Image in the public domain, via Atlas Obscura.
Given how gerrymandering essentially allows politicians to pick the voters, instead of the other way around, it becomes immediately apparent why such a practice should be illegalized in a functioning democracy. Rightfully, 21 states’ gerrymandered congressional maps have been challenged in court as of May 2022, with 6 of them overturned, mostly on the basis of racial gerrymandering or otherwise granting of “extreme partisan advantage” for one party. But remember that last North Carolina congressional map?
I mentioned that this map, which was used in the 2018 midterms, was overturned. The North Carolina Supreme Court overturned it on the basis that it “subordinated traditional neutral redistricting criteria in favor of extreme partisan advantage” for Republicans. In the upcoming Supreme Court case Moore v. Harper, however, Republicans are making the bold claim that the state court did not have the authority to overturn these maps. This doesn’t make sense. After all, in 2019, the Supreme Court ruled in Rucho v. Common Cause that while federal courts can’t weigh in on state districting cases, state courts have the authority to do so. Case closed, right?
Well, it gets worse.
Moore v. Harper rests on the legal theory of independent state legislature doctrine. Essentially, independent state legislature doctrine (ISL theory) is a radical interpretation of the Constitution that argues that state legislatures have complete authority over how elections for Congress and the presidency are held in that state. This completely removes the possibility of state courts being able to declare unfair voting laws or gerrymandered electoral maps (like in Moore) illegal. That alone is a dark sign for American democracy, but it gets even worse.
Let’s take the Electoral College. The Electoral College is the system that America uses to elect its next president: when people vote, they’re really voting for a group of representatives (a slate of electors) who will cast their final vote for the president. But according to ISL theory, state legislatures alone get to decide which presidential electors get to represent each state in the Electoral College. So as long as Republicans control a state legislature, their state’s electoral votes could all go towards the Republican presidential candidate even if more people voted for the Democratic nominee. This is absolutely unprecedented. Sure, there have been multiple elections in which a presidential candidate won the national popular vote but lost the Electoral College: Al Gore in 2000 and Hillary Clinton in 2016 come to mind, as well as Samuel Tilden in 1876. That’s just how the system works, as flawed as it might be. But never before has a presidential candidate won the popular vote in a state but lost its electoral votes: that’s not how the system works. Multiply this across enough states, and this essentially guarantees that a Republican will win the presidential election every time. For how much of a storm Republicans have been raising over “stolen elections,” they’re 100% fine with rigging elections so that they can never lose.
The understatement of the century is that none of this sounds very democratic. And if you believe that, then the Supreme Court would have agreed with you for the vast majority of its history. ISL theory has been brought to the Supreme Court several times starting in 1916, and has been rejected every single time. Furthermore, in Rucho (the aforementioned 2019 court case that established federal courts’ power over state election processes), conservative justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh agreed with the ruling that state courts should have a say in the electoral process, such as being able to overturn gerrymandered maps. But after just three years, Thomas, Alito, Gorsuch, and Kavanaugh have all signaled their support for ISL theory. And while the three liberal justices and Chief Justice John Roberts are unwilling to overrule the Supreme Court’s precedents against ISL theory, justice Amy Coney Barrett is very likely to side with her fellow conservatives, meaning that ISL theory will probably be upheld in time for the 2024 presidential election.
So what changed? There’s a simple explanation and a complicated one. The easy version is that by the end of the Trump administration, Republicans became masters of stealing elections. In the 2010s especially, numerous Republican-led states began implementing voter suppression measures, such as gerrymandering, stringent voter ID laws, and reducing the number of polling places, to limit the power and participation of Black voters and Democrats. True, Republicans weren’t able to overturn the 2020 presidential election, despite the attempted Capitol Hill insurrection on January 6, 2021, but in reality, Republicans were actually fine with losing in 2020: if they were miraculously able to steal the election, good for them, but if they couldn’t? No worries. After all, Trump appointed the three conservative justices on the Supreme Court that would be required for his team to pre-rig the 2024 presidential election. And these concerns aren’t just left-wing hysterics–this is from respected conservative judge J. Michael Luttig. People from all across the political spectrum are acknowledging how fraught this upcoming presidential election will be, and how much of a sham Trump and the Republican Party will make it. It would be a shame if America lets it happen.
If I haven’t made myself perfectly clear, I’m incredibly disappointed by Moore v. Harper, by the Supreme Court, and by the Republicans who have been greasing the wheels for an impending authoritarian takeover of America. But don’t think for a second that this means that Democrats are completely blameless. Now, are they actively trying to rig the next election? No, of course not. But when they control the executive branch and the legislative branch, it’s astounding that the party leadership could let a minority in Congress and five unelected partisans in robes walk them off the plank. It’s even more astonishing that they haven’t even tried to fight back.
So, the million-dollar question: what do we do about all of this? Obviously, considering that the Supreme Court is an unelected institution, and expanding it to preempt disaster is only something Congress and the President can do, options are limited. I originally had a whole spiel about why voting is going to matter in the next elections; if Republicans have their way in the 2022 midterms (and it looks like they will), they’ll almost certainly have enough seats in critical state legislatures like North Carolina, Georgia, Wisconsin, Michigan, Pennsylvania, and Arizona (as well as enough seats in the House of Representatives if the Electoral College is inconclusive) to steal the presidency in 2024. So yes, voting is important, but I want to caution against the idea that it’s all you can do. Voting won’t encourage Democrats to abolish the filibuster so they can expand the Supreme Court and avert disaster, because it didn’t in 2020. The only viable option is to get loud, angry, and disruptive: protests, direct action and confrontation, strikes–anything that might push the pendulum back towards democracy. Because the stakes are too high for you to stay home.