A previous post outlined the efforts to make voting harder (in 49 states!). Is this the most serious present threat to U.S. democracy?
No. Voter suppression is a serious threat, but behind it lurks a yet more insidious assault on our electoral system. As outlined by Jane Mayer in a brilliant exposé in the New Yorker (Aug. 9), creating a wide impression of voting fraud is prelude to a cynical ploy to push the Presidential election back to state legislatures, a majority of which are Republican-controlled.
Let's take a step back; the underlying theme of this blog is -- perspective. In 1940, whites were 90 percent of the American public, but in census results just released they comprised only 58 percent. The election of Barack Obama sparked the battlecry that "I want my country back." Trump galvanized the same fears of those who felt threatened with the clever slogan of "Make America Great Again."
As elsewhere, demography is destiny. The racial divide is reinforced by growing divisions culturally, in particular the gap between urban and rural sectors (Trump winning the latter by 20 percent). And the natural reaction of those who feel the country slipping away from them is to attempt to limit the voting power of those they see as a threat.
The clamor over supposed voter fraud makes it possible to revive what is known as the "Independent Legislative Doctrine." This idea exploits the peculiarities of our presidential electoral college system in order to nullify the popular vote.
The Constitution merely provides that a state chooses presidential electors "in such Manner as the legislature thereof may direct." In the 2001 Bush v. Gore decision, three Justices of the Supreme Court, in a concurring opinion, essentially adopted the Independent Legislative Doctrine, meaning that states could choose presidential electors as they see fit.
Since the late nineteenth century these electors have been chosen by voters. But if fraud is widespread, it is argued, then why not give state legislatures the power to nullify official returns and appoint their own electors?
Arizona is serving as a laboratory for this exercise. The farcical audit of its election returns, conducted by the Cyber Ninjas (!), is background for a proposed bill to empower the legislature to overturn the result. Observers from other swing states are following events there closely, perhaps hoping to duplicate the farce.
It might be too late to overturn the 2020 presidential election, even though Donald Trump has labeled it "the greatest crime in history." (Worse than the Holocaust, Donald?) But it could be a template for 2024.
In fact, a version of the Independent Legislature Doctrine was already in play in the January 6 insurrection. The planned scenario, discussed by Trump himself, was to refuse certification of official results and refer the question back to state legislatures. Mike Pence refused to go along with the gag, and it would certainly have been rejected in court -- but the intent was laid bare.
According to one survey, half of Trump voters believed that state legislatures should overturn the results in swing states. Battle lines for the future of American democracy have been clearly drawn.