Let’s face it, no one knows yet what will happen in today’s midterm elections. While forecasters expect a reasonably good night for Republicans, they also warn that a polling error in either direction could lead to unexpected Democratic wins in the congressional and gubernatorial races or a wave towering red that could sweep away even Democrats whose jobs were considered secure. But if this is a Republican deluge and they land a streak of gubernatorial victories and continue to dominate state legislatures like Arizona, Wisconsin and Michigan, what exactly can we expect from these Republicans?
In recent days, President Biden has channeled increasingly serious warnings from academics about the GOP’s threat to democracy. Nowhere is this danger more apparent than at the state level, where election deniers are poised to seize governorships and secretary of state positions in crucial purple states. Yet the president and leading Democrats have been reluctant to describe exactly what they believe will happen if these people gain power. Well, here it is:
Encouraged by the Supreme Court taking a case regarding the so-called independent state legislature theory, Republicans are likely to press the constitutional envelope on how their states choose Electoral College representatives. Remember that former President Donald Trump’s post-2020 coup plot failed not because it was impossible under the Constitution, but because state legislatures were bound by their laws. and existing electoral procedures. No court, not even the radicalized and conservative 6-3 Supreme Court, would have approved of an attempt to rewrite or circumvent these laws. post hoc.
Most people don’t realize how many anti-democratic features are embedded, unaltered by amendments, in the Constitution itself. One is how states are granted plenary power to decide how to choose their voters. Article II, Section 1 of our founding document is very clear: “Each State shall appoint, in such manner as its Legislature may direct, a number of Electors equal to the total number of Senators and Representatives to which the State may be entitled. .in Congress.”
For more than 150 years, legislatures have agreed to choose these electors via direct election for the president of each state. But there’s nothing but shame and opprobrium that’s stopping Republicans from reverting to the past practice of having the state legislature chosen without an election or devising a patently manipulative scheme that preserves the facade. of popular democracy while guaranteeing a Republican victory.
It should sound crazy, but it’s not. Earlier this year, Republicans in Texas endorsed the elimination of direct election of statewide officials as well as the repeal of the 17th Amendment, which requires the direct election of U.S. senators, rather than to have them chosen by the state legislatures as in the original text of the Constitution. The gradual dismantling of the GOP’s commitment to democracy has reached the point where it is almost certain that one or more GOP-controlled state legislatures will try something truly disruptive to the public’s understanding of democracy.
The assumption here is that this will be Wisconsin, the cradle of Republican radicalism for more than a decade, and the testing ground for the party’s commitment to one-party rule through control of the redistricting process and the State Supreme Court. If the Supreme Court approves of this idea that state legislatures can make election law without interference from the governor or state courts, it doesn’t matter if Democratic incumbent Tony Evers wins re-election tonight or if he’s defeated by the big fanatic Lie Tim Michels.
Badger State Republicans could simply eliminate state presidential elections altogether or make them purely advisory to the state legislature. That it is indeed their constitutional prerogative does not make it any less senseless or inflammatory. More likely, they’ll choose from a menu of other election-rigging schemes, like dividing the state’s voters among candidates based on who wins each congressional district. This is a plan long threatened by state Republicans in places like Pennsylvania, and a red wave would ensure these types of people would lead multiple purple states whose voters will determine the outcome of the 2024 election. .
Instead of dividing them, Republicans in Wisconsin could also award the state’s 10 voters to whoever wins the most congressional districts. The Manichaean beauty of these plots is that the permanently gerrymandered state legislature has drawn district lines that virtually guarantee a 6-2 Republican House delegation unless the Democrats win a national election by 15 points or more. .
Assigning voters in this way won’t seem absurd to most ordinary people – after all, Wisconsinans have already grown accustomed to the state’s deeply undemocratic politics, with the state legislature organized into districts so outrageously gerrymandered that Republicans have won near-supermajorities in both houses with just over 53% of the popular vote in 2020. And Nebraska and Maine have already split their voters based on who wins congressional precincts.
There is no obvious remedy in the Constitution to avoid such an outcome, which would represent the most serious crisis of American democracy since the Civil War. And so, we can only hope that voters will see fit tonight to deprive Republicans of the opportunity to do so by electing or re-electing Democratic swing state governors, and that the Supreme Court will rule against the absurd idea that the state legislatures can change their election laws by decree. Otherwise, we are in even more trouble than we think.
David Faris is an associate professor of political science at Roosevelt University and author of It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.
The opinions expressed in this article are those of the author.