In the wake of the 2018 “blue wave,” we’re now seeing a “red tide” of anti-democratic power-grabs -- strategies, tactics and rationales designed to deny the will of the voters — not just in Wisconsin, but in Michigan, Ohio, North Carolina, Maine and elsewhere.
In mid-November, Salon’s Igor Derysh reported on GOP efforts to rush unpopular laws through three state legislatures: Rolling back minimum wage raises and paid sick leave protections in Michigan, a new new voter-ID requirement in North Carolina, and restricting Democratic Gov.-elect Tony Evers’ executive powers in Wisconsin. But the picture has darkened considerably since then, both within these three states and beyond.
The power grab politics we’re seeing fall into three main categories:
- In Wisconsin, Michigan, Ohio, and North Carolina lame-duck legislatures are engaged in overriding will of the voters, with the backup protection of gerrymandering protecting them from reversal and from voters' wrath. (Something similar may be happening with the county board of supervisors in Maricopa County, Arizona, where there's talk of stripping the Democratic election supervisor's powers as well.)
- In Maine, GOP Rep. Bruce Poliquin has brought a lawsuit against the ranked-choice vote victory of his Democratic opponent, Jared Golden. As I’ve described before (here and here), RCV makes democracy more robust, which drives Republicans crazy, so they attack it by arguing the opposite. The power-grab mentality simply cannot understand the power-sharing benefits involved in ranked-choice voting, and can only see it as some kind of trick.
- In North Carolina’s 9th congressional district, there’s overwhelming evidence of actual electoral fraud (involving hundreds, if not thousands of ballots), driven by the power-grab mentality. This flies in the face of the myth of voter fraud, which has never been supported by more than a few scattered examples among many millions of votes. Both the myth and the reality reflect the underlying worldview of right-wing Republican activists, and given how fact-free the “voter fraud” myth is, we should expect this example of GOP electoral fraud to be used to further suppress Democratic voters.
The first category is so overflowing with examples that it’s impossible to do justice to the other two in a single story, but they need to be recognized as parts of the same overall dynamic, a zero-sum quest for power, eerily estranged from any sense of shared purpose that power might serve.
As noted at Vox, the New York Times and elsewhere, after Democrat Roy Cooper won the North Carolina governor’s race in 2016, North Carolina Republicans wrote the playbook for lame-duck power grabs that Wisconsin and Michigan Republicans are using today — playbooks focused on stripping power from the executive branch and assuming it for themselves. But as the list above shows, Wisconsin and Michigan aren’t alone, nor are GOP power grabs limited to legislatures grabbing power from the executive branch, nor is the 2016 North Carolina playbook the sole origin point for the power grabs going on.
As Vox notes, the basis of most such power grabs is the GOP’s unprecedented post-2010 gerrymandering. Former Salon executive editor David Daley wrote the book on this, “Ratf**ked.” (Salon interview here.) But there’s also a history of legislative power grabs attacking state courts since the early 2000s, as I wrote about earlier this year.
In addition, 2003 stands out as especially significant because of power grabs in two of the most populous, politically consequential states: The unprecedented recall of California Gov. Gray Davis (the first governor ever recalled for purely political reasons, with no allegations of malfeasance) and the equally unprecedented mid-decade redistricting of Texas’s congressional districts. Both were legally permissible, but violated long-standing norms, a category of political action described by Harvard Law professor Mark Tushnet as “constitutional hardball.” While 2003 was hardly the beginning of constitutional hardball, it signaled the start of a new phase, focused on state-level machinations, which is now more intensified than ever.
Yet more recently, a counter-movement from below has suddenly emerged. Redistricting reform — taking the process out of politician’s hands — proved enormously popular this year, the Brennan Center noted. Ballot measures passed in five states — Colorado, Michigan, Missouri, Ohio and Utah — putting the breaks on future extreme partisan gerrymandering. While uniformly more popular with Democrats, the measures received more than 60 percent support from Republicans in four of the five states. The Brennen Center analyzed the county-level approval rate and compared support to that in statewide partisan elections, finding that “these proposals did strikingly well among Republicans, far outperforming candidates of either party in nearly every instance.”
Michigan was a particularly interesting example, because GOP officials openly opposed the citizen initiative, as “a Democratic power grab,” the Center noted. “Despite that, the measure won more than 61 percent of the statewide vote and a majority of the vote in 66 of the state’s 84 counties,” including all of the most populous GOP-leaning counties, as can be seen from this chart:
What this tells us, in no uncertain terms, is that there’s light at the end of the tunnel, if only we can manage to find our way. But finding our way includes understanding where we are. So let’s take a closer look at the forms that power-grab politics has taken this post-election season.
In Wisconsin, Democrats Tony Evers and Josh Kaul ran for governor and attorney general, respectively, on a promise to defend the Affordable Care Act, and remove the state from a GOP lawsuit challenging the law. The GOP power grab would block them from doing that. It gives GOP lawmakers control of litigation involving the state, and allows them to replace the attorney general with state-funded private attorneys. It also entirely eliminates the position of solicitor general, the state’s in-court representative in high-profile cases. It’s as if Congress took over the Department of Justice, and farmed out work to private law firms—a jaw-dropping violation of the separation of powers.
As Dan Kaufman, author of "The Fall of Wisconsin," told Governing magazine, “Tony Evers campaigned on certain things. He ran on the position of defending the Affordable Care Act. That was a central part of his campaign. Nobody ran on their side on stripping power away from the incoming governor, whoever it may be.”
While there are many other aspects to the GOP power grab —“It's a dense, 141-page bill, with a lot of changes,” Kaufman said — this stands out as a defining feature, if only because so much else was simply smuggled through. “Like most of what has happened in the last eight years, there was no public input, with one limited hearing,” Kaufman explained. “The process itself is maybe the biggest outrage for people.”
The Wisconsin story actually starts two years before North Carolina Republicans wrote their playbook, and its essence is straight-up deception of the voters, as University of Wisconsin professor Michael Wagner explained in a Salon interview last week:
Gov. Walker took office and immediately pursued legislation curtailing the power of labor unions. He had not campaigned on it. It was so controversial it filled the capitol with protestors for weeks. He leaves office with the capitol filled with protesters once again as he is asked to sign legislation that he and his fellow Republicans did not campaign on during the election season.
More than that, Wisconsin had long observed the norm that once an election was held those in power would stop pursuing any contested policies, as Wagner explained:
When Gov. Walker replaced outgoing Gov. Doyle, Doyle halted his signature high-speed rail project at Walker’s request, as Walker had been against it. What is happening now in Wisconsin is a subversion of democracy – Wisconsin Republican lawmakers are changing the job descriptions of the governor and attorney general between Election Day and Inauguration Day simply because their side lost. This is a textbook example of how democracies die. That is, when norms about the peaceful transfer of power are violated, we are in trouble.
Georgetown public policy professor Donald Moynihan, late of the University of Wisconsin, agreed. “It’s impossible in Wisconsin history to find anything even remotely similar,” he told Salon for this story.
The new legislation also restricts the governor’s power to negotiate state-federal relations, another key feature of executive power. “That might sound like inside baseball, but it’s a huge deal, since Medicaid and Medicare drive state budgets,” Moynihan said, going on to explain:
Evers’ predecessors used this power to put their imprint on the state. Tommy Thompson used it to design a model of welfare reform that the federal government adopted. Jim Doyle used it to expand access to healthcare in the state. Walker used it to impose work requirements on health recipients, and has been trying to add new requirements on food stamps beneficiaries. Requiring the legislature to be the arbiter of intergovernmental policy dramatically curbs Evers’ influence relative to his predecessors. It also makes it much less likely that Wisconsin will innovate when it comes to intergovernmental programs. And in the short run, it means that the state will implement Medicaid work requirements that are causing thousands of poor people to lose access to health insurance in other states.
More broadly, Moynihan noted, “Wisconsin has historically had a reputation as a good government state. Progressive for sure, but one that valued clean government. These actions put the state into banana republic territory.”
Although it’s gotten far less attention, Michigan faces a similar situation. Democrats swept the top three statewide races for the first time in 28 years, with an all-female slate of candidates, the first time ever, and Republican lawmakers greeted them with set of laws to deprive them of power, as the AP reported.
Secretary of State-elect Jocelyn Benson was perhaps the most directly affronted. As the AP noted, she “ran in part on a pledge to advocate for election transparency, so the public knows more about people and groups spending to influence races and ballot drives,” but the Republican legislature came up with a bill to take away her power of campaign finance oversight, and give it to a bipartisan commission—a move that Benson warned would "lead to more gridlock and less enforcement of our already weak campaign finance laws. Extreme partisanship like this just breeds more partisanship and benefits no one but the special interests."
The AP noted that Gov.-elect Gretchen Whitmer's powers were enshrined in the state constitution, “a barrier to efforts to diminish her authority,” but that didn’t stop the GOP from trying, with a bill could impact both her and Attorney General-elect Dana Nessel, interfering with their role in determining the state's positions on laws challenged in the courts. Similar to Wisconsin, this bill would empower the legislature to intervene in any suit at any stage, including the right to appeal. “Nessel, for example, has said she probably will not defend a law allowing faith-based groups to refuse to serve same-sex couples who want to adopt children,” the AP noted.
Yet another bill would prohibit public agencies from requiring nonprofits to disclose their donors without a warrant — a move that critics call a "dark money protection," because of how nonprofits have become dark money conduits to sway elections.
With an all-male lineup on the GOP side, there’s no doubt that sexism plays a role here, as noted by veteran political reporter Susan J. Demas, executive editor of the recently-launched online news site, Michigan Advance, in a column, “Whoa, there, little ladies. GOP men will show you who’s boss.” It’s not just how legislators reacted, but a multitude of ways in which the male political establishment has proven itself woefully out of touch. She went to note that “the glaring headline of 2018 was ‘pissed-off women are voting Democratic,’ including independents and even some Republicans “as a backlash to Trump’s near-endless misogyny.”
But it’s not just free-floating misogyny detached from policy. The misogyny infuses a broad spectrum of arrogant disregard for others, embodied in a multitude of post-election actions. In addition to power grab take-aways from elected Democratic leaders, lame duck assaults fell into three other categories: (1) rewriting two voter initiatives that legislators passed in order to keep off the ballot, (2) interfering with all three statewide ballot initiatives approved by voters, and (3) other assorted unpopular bills a Democratic governor could be expected to veto. The first two categories are politically most significant, so I’ll confine myself to them.
The first category is especially heinous. By passing popular bills that voters put on the ballot (over 370,000 signatures each, about 50 percent more than required), the legislature allowed itself to come back and change them afterwards, leaving voters powerless to do anything—even though this had never been done before. As, Michigan Advance reported, Democrats considered the action “unconstitutional based on a 1964 opinion from Democratic former Attorney General Frank Kelley, who said the Legislature couldn’t adopt and amend a citizen-backed initiative in the same session.” But the outgoing Republican Attorney General, Bill Schuette, who lost the governor’s race, issued a contradictory opinion, after the midterm election. The Advance went on to explain:
For the minimum wage, the citizen-initiated proposal increased it from $9.25 to $12 per hour by 2022. The legislation on Gov. Rick Snyder’s desk raises it to $12.05 by 2030. Tipped workers would go from a $3.52 per hour minimum wage to $12 by 2024, under the citizen proposal. The Legislature changed it to $4.58 by 2030.
For paid sick leave, workers could earn 72 hours of paid time per year under the citizen-initiated plan. The GOP legislation decreases that to 40 hours, exempting businesses employing 50 or fewer people. The original initiative was for employers with six or more workers.
With regard to the three voter-approved initiatives, Proposal 1 legalized recreational marijuana use, Proposal 2 (“Voters Not Politicians”) created an independent redistricting commission, and Proposal 3 (“Voter’s Bill of Rights”) added eight voting policies to the Michigan Constitution, including straight-ticket voting, automatic voter registration, same-day voter registration, and no-excuse absentee voting.
The legislature is considering significant changes to all of them, which would violate the state constitution. A bill introduced in the Senate would eliminate the part of the marijuana initiative that allows for self-growing of marijuana. On Dec. 6, the Senate passed a bill altering the redistricting proposal, which was blasted by the group that passed the initiative, Michigan Advance reported. Elizabeth Battiste, spokeswoman for Voters Not Politicians, “said the proposal is “self-executing,” so it does not need additional oversight from the Legislature,” they reported. “A memo from the group’s lawyers, Honigman Miller Schwartz and Cohn LLP, argued that changing the proposal is unconstitutional because it ‘includes specific language prohibiting the Legislature from altering or abrogating any function of the independent redistricting commission created by the constitutional amendment.’”
Also on Dec. 6 the Senate passed a set of bills partially gutting the Voters Bill of Rights, as reported by the Detroit Metro Times. “The amendments would cut off voter registration at 14 days ahead of election day, and allow a resident to opt out of automatic voter registration. The bills would also force voters to show more identification and prove citizenship before voting,” the Times reported, “however, they appear to be illegal and a lawsuit is likely. The Michigan Constitution prohibits the legislature from making changes to citizen-initiated laws in the same legislative session.”
In seeking to make sense of such an under-covered onslaught, I reached out to Demas to ask about what was going there. She drew parallels with North Carolina in 2016 and Wisconsin today, as you might expect, but also noted that “West Virginia Republicans impeached the state Supreme Court and installed Republicans.” But as for what makes Michigan distinctive, that was easy.
“There was definitely a pink wave in Michigan on Nov. 6, with Democratic women sweeping all the top statewide offices, except for lieutenant governor,” she said, who is also a Democrat, Garlin Gilchrist. “Right now, the governor, lieutenant governor, attorney general, Senate majority leader and House speaker are all men and all Republicans,” she noted. “So when you have a male-dominated GOP legislature trying to strip power from Democratic women who were just resoundingly elected by voters, it's not just a bad look. Once again, it looks like Republican men trying to tell female voters who's boss.”
As for historical comparisons, “I did round-the-clock coverage of the 2012 lame-duck session in Michigan as a reporter and it was ugly,” she said. “Republicans ramming through Right to Work in the home of the UAW was an international story.” And that was only one facet. “Republicans also pushed through measures against abortion, permitting wolf hunting, resurrecting the emergency manager law voters had just dumped and more.” Although “It was a more brutal lame duck session in '12” in some ways, she says, this time it cuts even deeper. “The damage the Republicans are trying to inflict on institutions during our current lame duck makes this one worse overall.”
Ohio, Florida, Arizona, North Carolina
No other states have such a broad spectrum of power grabs, but four others have ones worth taking note of. In Ohio, as Igor Derysh reported on Dec. 6, state legislators introduce House Joint Resolution 19, requiring a 60-percent supermajority to pass a proposed constitutional amendment, instead of a simple majority. The intent is to encourage voter-backed state laws — which legislators can later change or repeal, rather than amendments, which they cannot. They would do this by reducing the number of signatures required to get on the ballot, and protecting ballot measures from immediate legislative change or repeal — but not from subsequent action.
As Derysh reported:
The League of Women Voters in Ohio vowed to fight the legislation.
“We think it’s already very difficult to get constitutional amendments on the ballot and it should not be made harder,” league Executive Director Jen Miller told the Enquirer.
But what do the people know? The power-grabbing instinct runs deep.
In Florida, voters passed the most sweeping expansion of voting rights in over a generation last month, with almost 65 percent approving Amendment 4, giving ex-felons the right to vote. But now, Mother Jones reports, Florida’s Republican elections chief is asking the GOP-dominated state legislature to interpret the ballot measure. “As a result, the dismantling of one of the harshest disenfranchisement schemes in the country could be subject to delays, confusion, and lawsuits,” Mother Jones said. Contrary to the election chief’s claim that he needs legislative instruction, Mother Jones noted:
In Florida, the state Supreme Court approves initiative language before amendments can appear on the ballot. The court unanimously approved the Amendment 4 language in April 2017 as clear and specific. …
The voters “took control of the constitution and went over the heads of the politicians and finally addressed this lingering problem in Florida,” [former director of the Florida ACLU Howard] Simon said. Amendment 4’s language “is self-enforcing, it is automatic, it says that voting rights shall be restored, that the disqualification from voting shall end. I mean, I don’t know what part of that is unclear at all. So I don’t think it needs legislation.”
So, of course the ACLU is going to have to sue. Because it’s Florida, obviously. And the power-grabbing instinct runs deep.
In Arizona, the problem isn’t in the state legislature, it’s in the Maricopa County Board of Supervisors, as reported by Allegra Kirkland for Talking Points Memo. Maricopa County -- home to former sheriff Joe Arpaio — gave Donald Trump more voters than any other county in the 2016 election, earning it the title of the “Trumpiest” county in America, Kirkland notes. So when Democrats started winning there, Republicans started crying foul, pointing their fingers at Maricopa County Recorder Adrian Fontes, the first Democrat elected to that post in half a century.
“Protesters gathered outside his office, calling for his resignation, and the chairman of the county board of supervisors publicly threatened to curb Fontes’ oversight of future elections,” Kirkland reported. Nothing has happened yet. But, she noted, the chair of the county board, Steve Chucri, told a local Arizona station that “he was considering making changes to Fontes’ role, either by working with the GOP-led legislature or with consultation from a local elections attorney,” though he “has since claimed he’s just trying to alleviate persistent problems with voting in the county.”
So we shall see. But the power-grabbing instinct runs deep.
In North Carolina, Republicans lost their legislative supermajority stranglehold in the midterms, meaning they will be unable to over-ride Governor Roy Cooper’s veto starting in January. They also lost two-power-grabbing constitutional amendments, seeking to strip power from the governor and transfer it to the legislature. Both were soundly defeated, even as voters approved a voter ID provision, whose details require further legislation. According to WRAL.com in Raleigh, "Voters overwhelmingly rejected an amendment on who appoints members of the state elections board by a 61 to 39 percent margin."
The amendment would have given legislators the power to nominate people to the State Board of Elections and Ethics Enforcement, limiting the governor’s pick of whom to appoint. However:
All five living former governors – three Democrats and two Republicans – campaigned against the amendment, calling it a power grab by lawmakers that would upset the balance of power between the three branches of state government.
Likewise, an amendment about filling judicial vacancies failed by a 67 to 33 percent margin. …
Like the elections board amendment, this proposal would essentially shift the power to appoint people to vacant seats on the bench from the governor to lawmakers. …
The former governors and seven former chief justices of the North Carolina Supreme Court campaigned against this amendment as well on balance of power and transparency grounds.
The fact that governors of both parties as well as former chief justices united to oppose these changes shows just how wrong-headed and destructive these legislative initiatives were. In contrast, the voter ID amendment, though driven by unfounded fears of voter fraud, could still be rendered relatively benign if not used to require photo ID, which has a proven discriminatory effect and does virtually nothing to prevent voter fraud. As WRAL.com noted, “Last year, the State Board of Elections & Ethics Enforcement conducted an audit of nearly 4.8 million votes cast in North Carolina in the 2016 presidential election and found only one case of voter impersonation that would have been prevented by a photo ID requirement.”
Nonetheless, on Dec. 6, the State Senate passed a photo ID bill and sent it to Cooper's desk. As the News & Observer reported:
The ACLU, Equality NC and Democracy North Carolina issued statements asking Cooper to veto the measure. In their letter, the ACLU and Equality NC objected to the bill being “rushed through a lame-duck legislature,” and said the provisions would “discriminate against and disenfranchise marginalized voters.”
In a press release, civil rights activists said:
The #MoralMovement has been clear: Voter ID is never justified because it is always discriminatory. Senate Bill 824 is immoral. It will result in the disenfranchisement of voters, particularly voters of color and poor voters. We believe that there is grave hypocrisy that there is a rushed bipartisan agenda to suppress the vote in North Carolina while there is no investigation into the election fraud in Bladen County (NC Congressional District 9) as part of this legislative special session. We are especially outraged because NCGA is a product of a large-scale unconstitutional racial gerrymander. They do not represent the people of NC and should not be taking up legislation on the fundamental right to vote.
Cooper has not announced how he will respond, but until the new session in January, Republicans can still override his veto. And the law could still go back to court. The power-grabbing instinct runs deep.
When I asked Moynihan what broader lessons could be learned, he pointed to a recent piece he wrote for Politico, “Kill the Lame Duck." “There is no real justification for lame duck sessions,” he said. “They are an outdated practice made for an earlier time which are now being weaponized to strategically benefit the party that lost the governor's office.” Some states have already realized this, he pointed out. “Alabama, Indiana, Nevada and Florida put legislators in place immediately after the election to prevent this from happening.”
Stepping back, Moynihan said, “The biggest lesson from this sorry affair is the collapse in democratic norms in the Republican Party. Power has become more important than the will of the people. What has been missing are GOP leaders who are willing to stand up and say this has gone too far. But instead, state leaders look at Mitch McConnell in the Senate and see that norm violations -- like the failure to act on a President's Supreme Court nominee -- are rewarded, that they should hold on to power at all costs. If the party can't correct itself, voters will have to do the job.”