Editor’s Note: Norman Eisen (@NormEisen) served as President Barack Obama’s ethics czar and was counsel to the House Judiciary Committee for the first impeachment and trial of President Trump. Joanna Lydgate (@JLydgate) is the former chief deputy attorney general for the state of Massachusetts. Eisen is the Executive Chair at the States United Democracy Center (@statesunited) and Lydgate serves as its Chief Executive Officer. Jessica Marsden (@jessmarsden) is Counsel at Protect Democracy (@protctdemocracy). The views expressed here are their own. Read more opinion at CNN.
Voter suppression is nothing new. For years, some officials have erected barrier after barrier to the ballot box. It’s happening again today with a tsunami of voter suppression bills across the country. But there’s an even more ominous development on the horizon, one that hasn’t garnered nearly enough media attention. As our organizations outlined in a new report last week, state legislatures aren’t just trying to interfere with how votes are cast, they’re also trying to interfere with the way elections are run.
As of early April, there have been at least 148 bills introduced in 36 states that seek to give partisan state legislatures control of election processes and outcomes instead of the trusted experts, career professionals, and bipartisan volunteers who have run elections for decades. In what can only be seen as an open reprisal for the 2020 election outcome, anti-democratic leaders have launched an unprecedented set of measures that threaten to throw our election system into chaos. Make no mistake: Had the worst of these proposals been in place last November, they might have resulted in a different outcome. If we let them pass now, they will threaten free and fair elections in the future.
For most of American history, elections have been administered by local governments – attuned to their communities and the way their voters live their lives. A variety of federal laws have assured a level of national uniformity and helped limit partisan interference. And in 2020 – thanks to the tireless work of these trusted local officials and some state election officials – this system helped produce a free and fair election with the highest voter participation in decades.
There are no doubt needed reforms to continue making our elections more accessible and secure, and to ensure state and local leaders have the resources they need. But that is not what is happening here. Not by a long shot. As outlined by our report, “A Democracy Crisis in the Making,” partisan lawmakers, predominately in majority Republican state legislatures, are trying to tilt the balance of power into their hands.
As the debates around this week’s release of census data reminded us, it’s not as if state legislators are concerned that they will be held accountable – they will likely remain in place to wield these powers because gerrymandering insulates them from turnover.
First, legislatures are trying to interfere with election results. Ex-President Donald Trump may have failed to overturn his losses in the battleground states, but his allies have carried the baton into the next lap. In Nevada, for example, legislators have introduced a proposed amendment to the state constitution that would transfer the power to certify the state’s election results from the supreme court to the legislature. A slew of bills introduced in Arizona would create new opportunities for legislators to cause chaos including one that would allow them to review preliminary election results and vote to reject or confirm them. And in Missouri, a new proposal would allow the state’s general assembly to name presidential electors “in cases of fraud” (i.e., “in case we don’t like the winner.”) These proposals are based on the voter fraud lies about the 2020 election that spurred the Jan. 6 insurrection, and they could threaten to send our democracy into crisis.
Second, legislatures are trying to control election responsibilities. At least 16 states have proposed or passed measures that transfer election control from statewide officials to the legislature. In Tennessee, H.B.1560 would remove all election administration responsibilities from the secretary of state and give them to a board appointed by the legislature. In Georgia, the recently passed omnibus election bill granted the legislature control of the State Election Board, and then granted that Board broad powers to investigate and suspend local election officials.
This isn’t just happening in Republican-controlled states, either. A bill in Maryland would remove the authority to appoint and remove members of the State Board of Elections from the governor to the speaker of the Maryland House and the president of the Maryland Senate, effectively transferring control from the Republican governor to Democratic legislators.
Third, legislatures in key battleground states are doing everything they can to meddle in election minutiae. Take Arizona, where everything from voter registration roll maintenance to on-the-ground equipment checks and to vote tallies would be subjected to a new layer of legislative hyper-supervision. These micro-management efforts are happening in many places, and they could result in a serious clash between executive and legislative leaders, make elections more difficult to administer, and cause serious confusion for voters.
Finally, legislatures are attempting to impose criminal or other penalties for election decisions and routine tasks. Just last week in Texas, the statehouse considered a bill that would impose criminal sanctions on an election administrator who obstructs the view of a poll watcher in a manner that makes observation “ineffective.” This bill and the others like it would have a chilling effect on the participation of the tens of thousands of volunteers who make our elections function, and needlessly so. In 2020, court after court rejected complaints of this kind by the Trump campaign in states across the country.
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But here’s the good news: We can do something about it if we act quickly. We’ve already seen the positive effects of businesses and local leaders speaking out against laws curtailing early voting or criminalizing giving a voter a bottle of water – against direct voter interference. We’ve seen bills introduced in Congress like S1, the For the People Act, which address the dire need for uniform national standards that guarantee a reasonable floor for federal election processes and block the worst impulses of anti-democratic state lawmakers – no matter where you live or who you vote for. Now, we need to extend the spotlight and respond to this brazen interference with the election system itself.
The radical proposed bills outlined in our report represent a direct and dire threat to the fate of our democracy. We need to fight back – before it’s too late.
