Voters rejected election deniers — but there are still 6 very real threats to democracy

Despite midterm failures, the path to extremism remains open

Published December 9, 2022 2:30PM (EST)

Supreme Court Associate Justice Clarence Thomas attends the ceremonial swearing-in ceremony for Amy Coney Barrett to be the U.S. Supreme Court Associate Justice on October 26, 2020 in Washington, DC. (Tasos Katopodis/Getty Images)
Supreme Court Associate Justice Clarence Thomas attends the ceremonial swearing-in ceremony for Amy Coney Barrett to be the U.S. Supreme Court Associate Justice on October 26, 2020 in Washington, DC. (Tasos Katopodis/Getty Images)

This article originally appeared on Capital & Main.

First the good news.

One of the biggest concerns heading into November's midterm elections had been the possibility that election deniers would sweep statewide offices that oversee elections in key battleground states. Another was that they would refuse to concede once they lost. Those concerns were given a reprieve due to surprising wins by Democrats nationwide, in races from the U.S. Senate down to state and local offices. 

But those who have been warning about the rise in political extremism say this is no time to rest. American democracy is in a weakened state. Among its ailments: a segment of the public in thrall to the Big Lie that Trump won the 2020 election, social media platforms that peddle misinformation and gerrymandering that polarizes state politics. Along with those threats, two looming U.S. Supreme Court cases could further imperil voting rights and make the country even more vulnerable to the politically motivated overturning of presidential elections. "You can't get complacent," said David Pepper, the former Ohio Democratic Party chair who has been warning of rising extremism in statehouses. There are "still some really blaring alarm bells, some really disturbing attacks on democracy and the rule of law happening all over the place." These are some of the causes for alarm:

1. An election system that can be subverted. 

Recent refusals by election boards to certify the votes in Cochise County, Arizona, and Luzerne County, Pennsylvania, may be outliers. But local officials declining to perform a function that is purely ministerial does expose a weakness that those seeking to undermine a fragmented election system can exploit. 

"We have a very decentralized election system. There are many pressure points where we rely on people to act in good faith. And if they don't, we don't always have a good way of dealing with that," UCLA law professor and election law expert Richard Hasen said.  

Could a presidential election still be overturned? Election experts have warned of a worst case scenario in which local and state officials refuse to certify election results and state legislators in battleground states substitute their own preferences for those of the voters, with the excuse that the election was compromised. The defeat of election denying candidates in Pennsylvania, Michigan and other states has made that much less likely, says Daniel Squadron, director of the States Project, a Democratic-aligned group that focuses on turning legislatures blue.

The Electoral Count Reform Act, crafted in response to the fake elector scheme hatched by Trump supporters in 2020, would make it harder for rogue actors to try to override the popular vote for president in their states by sending alternate slates of electors or declaring a failed election. It would also limit the ability of U.S. senators and representatives to challenge slates chosen by voters, and clarify that the vice president has no power to determine who won the electoral vote. But it wouldn't block every path to election subversion. Hasen has written that if it does not pass in the lame duck session it will not likely move forward in a Republican-dominated House of Representatives.

And the state Republican Party, dominated by extremists, still controls narrow majorities in Arizona's Legislature. There are "one or two Republicans in the Legislature who will reject subversion," Squadron believes. He added, "We also know that the pressures from that party as embodied by gubernatorial candidate Kari Lake to do the wrong thing are real." Lake, a prominent election denier, is perhaps singular in refusing to concede her loss. Lake's actions are not about her "having any chance of taking the governor's mansion this year," said Squadron. "It has everything to do with pressure testing the system to find the weak spots."

2. A media ecosystem that breeds disinformation and mistrust in elections

Arizona election officials overwhelmed by false allegations of fraud. Election officials swamped with public record act requests demanding that they debunk election myths. One in five election workers saying they are unlikely to remain in their position through the next presidential election. These were the kinds of reports that have emerged since 2020 and that worried observers heading into the midterms. While voting went surprisingly smoothly this time, the social media platforms that transmit election-related misinformation and disinformation have not changed.

What's more, Americans are living in different information universes. Some 35% of midterm voters falsely believed that Biden did not legitimately win the 2020 election, according to exit polls conducted by CNN. "Shared facts are foundational to a functioning society," says Rachael Dean Wilson, head of external affairs at the Alliance for Securing Democracy at the German Marshall Fund.

Wilson adds that one of the few shared spaces for exchanging information is currently facing an uncertain future. "You can't miss what's going on with Twitter right now," she said, referring to Elon Musk's tumultuous takeover of the platform. As he has laid off half of Twitter's staff, Musk has also fired an unknown number of contracted content moderators. Those moderators were a line of defense against the potential for a surge in disinformation and misinformation on the platform.

Disinformation, false information spread deliberately, can cause confusion — or even lead to violence as it did on Jan. 6, 2021. It has also led to violent threats against election officials, including one in Texas following the 2020 election, according to a staff report to a congressional oversight committee. Social media messages included "hunt him down" and "hang him when convicted for fraud until maggots drip from his mouth."

3. Concerted attempts to undermine the voting process

Of course, election related disinformation is promoted by politicians and right-wing agitators. Wilson's organization has been keeping a watchful eye on efforts to recruit election deniers as volunteer poll workers. Interest in volunteering for those positions surged as Steve Bannon, host of the popular podcast "The War Room," promoted his "precinct strategy." That strategy involved recruiting partisans to take over every level of the Republican Party, from statewide office to precinct captain.

But volunteer poll workers actually participate in running elections. They process ballots, check IDs and help voters. A misinformed volunteer poll worker or one with "less than good intentions" could report false information that "catches fire and causes untrue information to become disinformation on social media," says Wilson. "Election administration is going to remain in the crosshairs," she said.

Neal Kelley, the former registrar of voters for Orange County, California, and a lifelong Republican, is part of the Committee for Safe and Secure Elections, which brings together law enforcement and election officials to safeguard elections. He participated in FBI briefings a few weeks before midterms. "There's real intelligence out there that shows that this chatter continues across social media platforms." The smooth functioning of the November election and the fact that so many election-denying candidates conceded their loss gives him strong reason for hope. "The problem is that the embers are still there from 2020," he said.

4. Gerrymandering leading to partisan minority rule

A perhaps underappreciated contributor to extremism is the persistence of partisan gerrymandering by state legislatures, says Pepper, the former Ohio Democratic Party chair. His home state of Ohio is a poster child for politicians who fashion districts to create partisan advantage. It's a tactic used and abused by both political parties, but Ohio's Republican-led Legislature has defied repeated court orders to draw districts that comply with the state's constitution. The result: a state with a 54/46 partisan split over the last decade has a Republican supermajority in both chambers of its statehouse. It's a similar story in Wisconsin and other states. Importantly, says Pepper, it leads to an unrepresentative government and legislation that caters to the most extreme members of the governing party. "If you didn't have gerrymandered legislatures, we wouldn't have nearly as many legislators pushing to ban abortion because it would be a losing issue as it was in Kansas, Kentucky, Montana and other states when it's actually on the ballot," Pepper said.

Republican leaders in Ohio are advancing legislation that would require a 60% threshold to pass a constitutional amendment, a move that Pepper sees as a way to protect unpopular abortion bans from being challenged by citizen-initiated referendums — or to keep independent redistricting initiatives from winning support from voters. 

Pepper laments the U.S. Senate's failure to pass voting rights legislation that could have put a halt to partisan gerrymandering and protected voting rights. "In the long arc of our history, that can be viewed as a major, major miss," he said.

5. Laws that limit who votes

Since the beginning of 2021, lawmakers have passed at least 42 restrictive voting laws in 21 states. Those who support such restrictions say they safeguard elections from fraud. But studies have shown that voter fraud is vanishingly rare, and voter suppression disproportionately harms minority and young voters. 

Georgia's Senate Bill 2 led to a racial discrimination lawsuit from the U.S. Department of Justice for unfairly targeting Black voters. Still, voting rights activists have sometimes been able to counteract suppression efforts with voter mobilization, leading to an uneasy draw. Bertrall Ross, a University of Virginia law professor and expert in elections, credits the financial resources that were poured into the midterms with producing the recent results in Georgia. "What we saw were just extraordinary mobilization efforts on the ground," says Ross. Voter suppression legislation tends to provoke a "countermobilization effort that is both directed against suppression and at the party that instituted or imposes those suppressive laws," he said.

But in a state like Ohio, which is not closely contested, it may be a different story. Molly Shack is co-executive director of the Ohio Organizing Collaborative, a nonprofit statewide organization that registers voters. Shack says one of the biggest barriers young voters repeatedly face is the state's 30-day voter registration deadline. "I'd be trying to help them look up their polling location and come to find out that they're not registered to vote," she said. Add to that a controversial "use it or lose it" voting law that allows the state to purge voters from the registration rolls if they fail to return a mailed address confirmation form or don't regularly vote. The gerrymandered districts also mean races are decided in primaries by voters who are often strong partisans. "So there is very little opportunity for regular people to have their votes solicited and engaged," she said. "That has dried up investment and resources" in Ohio's elections.

6. Upcoming Supreme Court rulings that could upend elections

This week, the U.S. Supreme Court is scheduled to hear oral arguments in Moore v. Harper, the case that has advocates most on edge. The case concerns the Independent State Legislative theory, which Trump's allies unsuccessfully invoked to justify his effort to steal the election in 2020. If it is validated, it could give increasingly extremist legislatures unchecked power to create the rules that govern elections. A governor's veto, a citizen initiative or a state constitution would be unable to serve as a check to the legislature, according to the once fringe idea advocated by the far right.

"The implication of the theory would be that state legislatures could pass all manner of voter suppression legislation. They could potentially outlaw independent redistricting commissions. They could enact the most gerrymandered maps you've ever seen, and their governor might not be able to veto it and their state constitution, and their state courts, could have nothing to say about it," said Lala Wu, a San Francisco attorney who is executive director of Sister District, a grassroots organization that also supports Democratic state legislative candidates.

Advocates and legal scholars have warned that an adverse ruling in Moore v. Harper could enable the kind election subversion Trump attempted in 2020 — although the defeat of election deniers in key states has made that less likely in the immediate future.

Another significant case that has drawn less attention is Merrill v. Milligan, which concerns racial gerrymandering. Unlike partisan gerrymandering, racial gerrymandering is policed by federal courts, which enforce the Voting Rights Act. Section 2 of the Act was designed to identify cases where legislators "cracked and packed" minority voters — spreading them out in a way that diluted their voting power or concentrated them geographically to produce the same result. The ruling in Merrill v. Milligan may substantially weaken that protection, say court watchers.

The case originates in Alabama, where the mostly white Legislature drew just one out of seven congressional districts in which Black voters made up a majority, even though Black people make up 27% of the voting age population in the state. Voting rights groups sued, arguing Black votes had been unlawfully diluted. The Federal District Court in Birmingham ruled that the Legislature should have drawn a second majority-Black district. On Oct. 4 the Supreme Court voted 5-4 along ideological lines to temporarily block the lower court's ruling and is expected to rule on the case this term. "The future of racial minority voting rights" and the country's efforts to create a multiracial democracy are at stake in Merrill v. Milligan," said Ross, the University of Virginia law professor. He noted that both cases could have far-reaching effects on future elections. "This will be a rather consequential Supreme Court term in terms of the future of American democracy."

By Jessica Goodheart

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