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The Rise of Legislative Anti-Democracy

It isn’t just voter suppression. State lawmakers from Arizona to Pennsylvania are trying to thwart any form of democracy that threatens their power.

March 12, 2021
Walter Bibikow

It’s upon us: a wave of legis­la­tion, in states across the coun­try, aimed at making voting harder. The Bren­nan Center has tallied over 250 bills in 43 states this year that would restrict access to the ballot. Many would reverse the expan­sion of vote by mail, which helped lead to the soar­ing turnout of 2020, or would tighten ID require­ments.

But the latest assault on voting should­n’t be seen in isol­a­tion. Some of the same Repub­lican state lawmakers behind these meas­ures are also taking steps to suppress any form of demo­cracy that threatens them — afraid, it seems, that the more say voters have in any form, the worse their side will fare.     

With the next redis­trict­ing cycle kick­ing off this year, legis­lat­ors in several states are work­ing to rig the process in their favor, often by under­min­ing recent reforms. In Arizona, Repub­lic­ans are trying to skew the commis­sion that handles map draw­ing by stack­ing it with GOP activ­ists. And in Pennsylvania, lawmakers were so incensed by a state Supreme Court ruling against last cycle’s gerry­mander that they’re trying to gerry­mander the court itself by split­ting judi­cial elec­tions into separ­ate districts, giving them­selves yet more power to draw district lines (prompt­ing the Phil­adelphia Inquirer to edit­or­i­al­ize recently that “Pennsylvani­a’s demo­cracy might not survive” the effort). 

Some Repub­lican legis­latures whose voters backed Pres­id­ent Biden in last year’s elec­tion are mulling ways to make the Elect­oral College even less demo­cratic. Wiscon­sin and New Hamp­shire have seen propos­als to alloc­ate elect­oral college votes accord­ing to congres­sional district, which would skew pres­id­en­tial elec­tions even further to the GOP. And an Arizona meas­ure would let the legis­lature reject a pres­id­en­tial vote count certi­fied by the secret­ary of state, poten­tially giving lawmakers the power to over­turn the voters’ will. These efforts to rig pres­id­en­tial elec­tions face long odds of becom­ing law, espe­cially in states with Demo­cratic governors. But they’re reveal­ing as a window into the baldly anti-demo­cratic mind­set plaguing some state­houses across the coun­try. 

Another window into that mind­set: the war on direct demo­cracy. In recent years, citizen-activ­ists have organ­ized success­ful ballot initi­at­ive campaigns to extend voting rights, curb gerry­man­der­ing, expand Medi­caid, and legal­ize marijuana, among other popu­lar steps. Initi­at­ives are an espe­cially useful tool in states that are so skewed by gerry­man­der­ing that popu­lar meas­ures can’t get a hear­ing at the state capitol. So natur­ally, Repub­lican lawmakers in 24 states have intro­duced bills that would make it harder to organ­ize and pass ballot initi­at­ives, accord­ing to the Ballot Initi­at­ive Strategy Center.

Some of these would raise the number of signa­tures needed for an initi­at­ive to get on the ballot or tighten the rules on which districts the signa­tures can come from. Others would up the margin by which voters must support an initi­at­ive for it to be passed. In Flor­ida, nearly 65 percent of voters in 2018 approved a meas­ure restor­ing the fran­chise to people with past felony convic­tions. Not content with gutting that reform through new legis­la­tion in 2019, GOP legis­lat­ors are now fast-track­ing a bill that would raise the threshold for approval from a 60-percent super-major­ity to 67 percent. 

Let’s not forget about local demo­cracy, either. The last decade has seen a wave of “pree­mp­tion” laws, in which states, often respond­ing to progress­ive local reforms, have curtailed the power of cities and counties to regu­late in certain areas, threat­en­ing one of the few remain­ing venues — local govern­ment — where citizens can still make their voices heard. In one notori­ous example, after Birm­ing­ham, Alabama, raised its minimum wage, bene­fit­ing low-income, predom­in­antly Black fast-food work­ers in the city, the state’s all-white Repub­lican caucus passed a law that wiped out the Birm­ing­ham meas­ure by barring local govern­ments from boost­ing wages.

Now, the coronavirus pandemic has spurred a new round of pree­mp­tion, target­ing local efforts to protect public health — as high­lighted in a recent report by the Local Solu­tions Support Center, which supports local demo­cracy. Michigan and Ohio are among the states that saw bills intro­duced last year to ban local mask require­ments, which would leave the lead­ers of Detroit, Clev­e­land, and other cities with no way to ensure their citizens were protec­ted by this simple and effect­ive public health step. A Tennessee bill would bar local govern­ments from requir­ing busi­ness clos­ures. And a proposed Missouri meas­ure would prevent county health boards from issu­ing public health orders.

It’s hard to ignore that this explo­sion of what we might call “legis­lat­ive anti-demo­cracy” is coming from some of the same people who helped stoke an even more troub­ling effort to over­turn the will of the people. At least 14 Repub­lican state lawmakers atten­ded the Janu­ary 6 “Stop the Steal” rally that led to the Capitol insur­rec­tion, and they continue to serve. At least one, State Sen. Doug Mastri­ano of Pennsylvania, has been a leader in his state’s effort to pass restrict­ive voting laws.

So how should we respond when the enemies of demo­cracy are them­selves elec­ted through our, albeit troubled, demo­cratic system? The For the People Act and the John Lewis Voting Rights Advance­ment Act are crucial first steps. Together, they’d make it much harder for states to restrict voting and would curb the gerry­man­der­ing that encour­ages this kind of extrem­ism by creat­ing so many uncom­pet­it­ive districts. 

But we also need to start think­ing about struc­tural reforms, targeted specific­ally to state legis­latures, that could incentiv­ize more respons­ible govern­ing. And over the long term, we need to create a stronger demo­cratic culture across the coun­try. Ulti­mately, we need to make efforts to restrict demo­cracy so toxic that no elec­ted offi­cial would even contem­plate them. Only then will it be safe to declare victory.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.