Anti-democratic moves by state lawmakers raise fears for 2024 election

In Wisconsin, Republican lawmakers are threatening to impeach both the state’s election administrator, who is highly regarded nationally, and a state Supreme Court justice despite a ruling by the state’s judicial commission that the justice had done nothing wrong — effectively nullifying a recent statewide election she won, Democrats say.

In North Carolina, a bill that would give the legislature control of state and local election boards — potentially allowing lawmakers to overturn results — could soon become law.

And Alabama continues to defy the U.S. Supreme Court by refusing to draw a new congressional district with a Black majority.

Other states are seeing efforts by politicians to gain a political advantage by curtailing the power of voters.

It’s all part of a burst of anti-democratic activity at the state level, as Republican lawmakers and officials in recent weeks have run roughshod over long-standing norms of good government — and sometimes the clear will of voters — in order to maximize their party’s political clout.

Much of this procedural extremism has aimed to protect GOP gerrymanders — when lawmakers use their power to draw district lines to advantage their side — reflecting the sky-high stakes attached to the redistricting process.

But to those working to protect democracy, it’s a reminder that, for all the deserved attention to national threats — the attempted coup of Jan. 6, 2021, the looming danger of election subversion next year — some of the most explicit efforts to undermine the popular will have for years been happening in the states.

Indeed, experts say any scheme to thwart a free and fair national election in 2024 would likely center on corrupting one or more state-level election systems — just as was attempted in 2020.

“We should call this what it is: an effort to lay the groundwork to subvert the will of the voters in future elections,” said Joanna Lydgate, the CEO of the pro-democracy group States United Action. “While the focus is often on the national picture, our elections are run by the states. That means we need to keep shining a light on state-level efforts that undermine our democracy. It’s the only way to shut it down.”

‘An attempt to nullify an election’

Wisconsin has generated the biggest headlines lately. In September, the GOP-controlled Senate voted to oust Meagan Wolfe as the head of the Wisconsin Elections Commission.

Wolfe, a respected and nonpartisan elections official who had been appointed to her post by the commission in 2018, was the target of false conspiracy theories about illegal voting during the 2020 election. A recent hearing on whether to remove her became a platform for election deniers making debunked fraud claims.

Wolfe has refused to step down.

“The Senate’s vote today to remove me is not a referendum on the job I do but rather a reaction to not achieving the political outcome they desire,” Wolfe said after the vote. “The political outcome they desired is to have someone in this position of their own choosing that would bend to those political pressures.”

Attorney General Josh Kaul, a Democrat, has filed a lawsuit to stop the removal, claiming the Senate lacks the authority for it.

A group of Republican lawmakers is now circulating a resolution to impeach Wolfe.

Wisconsin’s Republican lawmakers are also considering impeaching Supreme Court Justice Janet Protasiewicz, who was elected in April by a resounding 11-point margin.

Though the state’s judicial elections are officially nonpartisan, candidates typically are open about their political leanings in order to win the support of a major party. Protasiewicz, a liberal, was backed by Democrats, while her conservative opponent was supported by the GOP.

Lawmakers have cited Protasiewicz’s campaign-trail comments that the state’s legislative maps  — which are being challenged in a case set to come before the state Supreme Court — are “rigged.” But other justices have similarly voiced opinions on hot-button issues without facing repercussions.

The state’s Judicial Commission has said the complaints against Protasiewicz have no merit.

Wisconsin’s legislative maps are among the most heavily gerrymandered in the country — a 2020 Harvard study ranked them as the worst, on par with Jordan, Bahrain, and the Congo. They’ve consistently given the GOP large majorities — currently 22-11 in the Senate and 64-35 in the House — despite the state tilting slightly Democratic in most recent statewide races.

The court appears poised to strike down the maps and order fairer districts to be drawn, threatening Republicans’ hold on power. But impeaching Protasiewicz would leave the court evenly divided between liberals and conservatives, meaning the gerrymandered maps — and the GOP’s large majorities — would be much more likely to survive.

Ben Wikler, the chair of the state Democratic Party, has called the impeachment threat “a totally unconstitutional attempt to nullify the last election and effectively abolish judicial independence in Wisconsin.”

Wisconsin’s legislative leaders have often pushed the envelope to gain a political advantage. When Gov. Tony Evers, a Democrat, was first elected in 2018, lawmakers immediately passed a measure to weaken his power.

But going after Protasiewicz just months after her comfortable election win may not be popular with voters — potentially making it a bridge too far for some lawmakers.

“I think people are likely upset — she was elected by a wide margin in a free and fair election,” said Edgar Lin, the Wisconsin policy advocate and counsel for Protect Democracy, which works to preserve fair elections. “And that spans across the political spectrum. Many people in red districts voted for her.”

That reality has legislative leaders exploring other solutions. Last week, House Speaker Robin Vos, a Republican, unveiled new legislation that he said would establish a fair and nonpartisan redistricting process. But Evers rejected the plan, saying it would still ultimately leave lawmakers in charge.

Not that impeachment is off the table. Vos last week appointed a panel of former Supreme Court justices to study the issue and report back — a move widely seen as a delaying tactic. He didn’t reveal the panel’s members, but one former justice reported to be on it is a conservative who donated to Protasiewicz’s opponent in the election.

‘The power to decide contested elections’

But when it comes to protecting gerrymandered maps, perhaps no state has gone further than Alabama.

Back in June, the U.S. Supreme Court upheld a lower court ruling that found Alabama’s congressional map discriminated against Black voters, and that ordered the state to draw an additional Black-majority district, or something close to it. Only one of the map’s seven districts was majority-Black, even though Black people are about 27% of the state’s population.

Instead, in a striking act of defiance, Alabama drew a new map that still had only one Black-majority district. On Sept. 5, a federal court struck down the new map, saying it was “deeply troubled that the state enacted a map that the state readily admits does not provide the remedy we said federal law requires.”

Now, Alabama has appealed that ruling back to the U.S. Supreme Court, hoping for a delay that will allow it to use the discriminatory map next year.

Alabama Attorney General Steve Marshall, whose office has led the case, was one of a group of state attorneys general who urged the U.S. Supreme Court to block the certification of electors in the 2020 presidential election. He has refused to say that President Joe Biden was “duly elected.”

Meanwhile, North Carolina lawmakers are advancing a bill — it passed the House Tuesday — that would authorize the GOP-controlled legislature to appoint state and local election board members. Currently, that’s the role of the governor, Democrat Roy Cooper.

Cooper has said he’ll veto the measure. But because Republicans enjoy super majorities in both chambers, thanks to gerrymandered maps, they can override his veto.

Currently, the governor appoints all five members of the state board, though no more than three can be from one party. County boards are also split 3-2 in favor of the governor’s party.

The legislation would create even-numbered boards, with lawmakers from each party picking half the members. Republicans argue that structure will encourage bipartisanship.

But critics say it would likely mean frequent deadlocks. One result, voting rights advocates fear, could be to prevent counties from expanding the number of early voting sites — something Republicans have strongly opposed.

Even more worryingly, the boards might refuse to certify election results, which could send the issue to the courts or the legislature, raising the threat of subversion. North Carolina provided former President Donald Trump with his narrowest margin of victory in 2020, and could be pivotal again next year.

In a recent op-ed, Cooper called the bill a “backdoor attempt to limit early voting and consolidate the legislature’s quest for the power to decide contested elections.”

This is just the latest Republican effort to reduce Cooper’s power over elections since he was elected in 2016.

It comes not long after the legislature passed a bill that would make voting more difficult, especially targeting mail-in voting. Cooper vetoed the measure but Republicans are expected to override the veto.

Cleta Mitchell, the Trump lawyer who played a key role in the effort to overturn the 2020 election, met with lawmakers drafting the bill.

For good measure, the legislature also released a draft of the state budget Sept. 20 that includes a provision exempting lawmakers from the state’s public records law. One ethics watchdog called the measure, which is expected to become law, “a devastating blow to North Carolinians’ right to know what their elected officials are doing.”

And last month, the state’s Judicial Standards Commission launched an investigation into Supreme Court Justice Anita Earls, the court’s only Black woman.

Earls, a Democrat, was asked in an interview why the lawyers arguing before the court are disproportionately white men. She responded by talking about implicit bias and saying that white men “get more respect” and are “treated better” at the court.

Earls has sued the commission, claiming the investigation violates her free speech rights.

‘This would open the door to monsters’

The events in Wisconsin, Alabama, and North Carolina have generated national headlines. But gambits by lawmakers in other states have flown further under the radar.

In Ohio, the Supreme Court has ruled five times that the state’s current legislative maps are unconstitutional gerrymanders favoring Republicans. But the bipartisan commission that’s supposed to draw fair maps hasn’t met since May 2022.

It has made almost no progress, because GOP legislative leaders can’t agree on who to appoint to it. The panel was scheduled to finally meet again Sept. 20, just two days before a Sept. 22 deadline imposed by the secretary of state.

Lawmakers’ goal appears to be to run out the clock and ram through skewed maps with little public scrutiny. Because the Supreme Court now has a conservative majority, it’s expected to green-light whatever lawmakers come up with.

Last month, a bid by the GOP-controlled legislature to make it harder for Ohioans to amend the state constitution was overwhelmingly defeated by voters.

In Florida, a subtler scheme is underway. Acting on a request from the speaker of the House, the state Supreme Court last month created a commission to study changing the way prosecutors and judges are elected.

Advocates of criminal justice reform say the goal is a judicial gerrymander that would undercut the power of Black voters and make it much harder to elect reform prosecutors of the kind that Republican Gov. Ron DeSantis has targeted.

“Judicial redistricting in Florida would almost certainly be a near-fatal blow against the reform prosecutor movement in the state,” one prominent reform advocate has written.

The kind of power grabs that are currently playing out in the states aren’t entirely new. Many of the extreme gerrymanders that lawmakers are now fighting to preserve were first enacted over a decade ago.

But today, advocates say, these efforts are even more dangerous for democracy. That’s because, by giving lawmakers more power over elections or over their state’s judicial system, many of these schemes strengthen and reinforce the ultimate threat of outright election subversion.

“If they can impeach someone successfully to stop them from ruling in a way they don’t like, what will they do after the 2024 election?” asked Wikler, the Wisconsin Democratic chair, referring to the threat to impeach Protasiewicz. “It was one vote in our state Supreme Court that prevented the 2020 election from being overturned in Wisconsin. And they know who the justices were, so they could just suspend them. This would open the door to monsters that I don’t think they’d be able to control.”