By Judy Gordon, DPSC Secretary
Democrats have proven we can overcome voter suppression through the strength of our ideas and organizing energy. But Republicans are not deterred in their efforts to undermine democracy. They are now positioning themselves to nullify Democratic votes—especially from voters of color—thereby allowing them to steal future elections.
To accomplish this, red state legislatures are enacting laws that allow them to overturn the popular vote—no evidence of fraud required—and select their own presidential electors if they don’t like an election outcome.
One of the country’s foremost election-law scholars, Richard Hasen, UC Irvine, told The New Yorker, “I’m scared shitless.” It’s not just voter suppression on steroids that evokes his panic, but the prospect of “election subversion.”
On top of these new laws, state election officials are being installed who, Hasen says, will “mess with the count.” Hasen’s fears are described in Jane Mayer’s New Yorker article, “The Big Money Behind the Big Lie”.
It may seem unthinkable that laws and procedures targeted at nullifying the popular vote could pass constitutional muster, but to Hasen, this is a hair-on-fire moment.
In Bush v. Gore, the Supreme Court decision that egregiously handed the 2000 election to George W. Bush, the majority of justices argued that state legislatures have the absolute power to run elections and can give themselves the right to appoint presidential electors. This is called the Independent Legislature Doctrine.
Referring to this doctrine, another election law scholar, Nathaniel Persily of Stanford University stated, “It’s giving intellectual respectability to an otherwise insane, anti-democratic argument.”
In a Slate article titled, “Trump Is Planning a Much More Respectable Coup Next Time,” Hasen describes a cadre of conservative activists who are hard at work promoting the Independent Legislature Doctrine. He writes,
This is a wacky theory of legislative power, but it is one that four Supreme Court justices (Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) expressed support for in various opinions during the 2020 elections. . .
Hasen believes that the next time, it would not be surprising to see most, if not all, the conservative justices accept vote nullification.
This is a precarious moment for democracy. If there is a Republican majority in Congress after the 2024 election, do you doubt that they will readily disregard the will of the people and, instead, count the electoral votes of Republican state legislatures? We will thus face another election stolen from the Democrats and a country careening down the road to fascism.