Tuesday, April 27, 2021

Threats of Violence and State-Level Republicans' Efforts to Subvert Future Elections

by Neil H. Buchanan
They are still counting ballots in the 2020 U.S. presidential election.  Correction: They are still recounting some ballots, the "they" in this case being Arizona's Republican state senate, using a completely opaque process run by a private contractor with no experience in auditing elections (and run by a man who has been pushing conspiracy theories of the "stop the steal" variety).  Oh, also, Arizona's votes have already been recounted multiple times, and the voting machines have been tested and found to have worked flawlessly.

This will all play out in a very predictable way: The not-really-auditors will announce with some degree of confidence (most likely absolute certainty) that the vote count was wrong or questionable, the losing candidate will then claim that this was true in at least six states, and Republicans nationwide will thereafter further intensify their efforts to suppress votes and allow themselves to take control over future vote counts.

To emphasize that last point, this is no longer "only" about preventing people of color and young people from voting, although there is certainly quite a bit of that.  Election law maven Professor Rick Hasen opened his excellent April 23 opinion piece in The New York Times with this warning:
"A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms."
This is a crucial distinction.  It is one thing to try to prevent people from voting, which is anti-democratic and despicable but -- as we saw so wonderfully in Georgia in November 2020 and January 2021 -- can be overcome by using the suppression efforts to motivate people to vote in spite (and I do mean spite) of those efforts.  It is another thing entirely to make sure that the votes are counted in one party's favor.  No amount of voter turnout can overcome the latter.

This becomes even worse when we start to see all of the ways in which vote counts can be changed or set aside.  This is all part of an uglier strain of authoritarianism that is becoming an epidemic among Republicans.  (And as usual, they are not interested in being vaccinated.)

I discussed some of these issues in my Dorf on Law column last Thursday, the heart of which involved my reaction to a particularly insane editorial by Georgia's now-famous election administrator, Gabriel Sterling.  Acknowledging that Sterling and his boss (Georgia Secretary of State Brad Raffensperger) had acted heroically in refusing Donald Trump's efforts to overturn Georgia's presidential election results, I was nonetheless stunned by Sterling's dishonest arguments in favor of Georgia's deservedly hated new election law.
It was especially disturbing that Sterling invoked his own warnings from December, when he said that Trump supporters were threatening violence, which he correctly predicted would result in injury and death.  Weirdly, Sterling now claims that Biden's denunciations of the new Georgia law are similarly inflammatory and also likely to lead to violence.

Not only did Sterling provide no evidence (even a hint) that this is actually happening, but the threats of violence are still coming from the right.  In fact, as Michael Wines reported in an important new article in The New York Times, a group of Arizona's Republican state senators tried to get the Maricopa County supervisors to turn over election information and ballots, so that Republicans could carry out yet another recount.  What happened next is chilling:

"Before long, [the Republican state senators] sent subpoenas to the county seeking the 2.1 million ballots, access to 385 voting machines and other equipment like check-in poll books, voting machine passwords and personal details on everyone who voted. The supervisors resisted, calling the election fraud-free, and said they wanted a court ruling on the subpoenas’ legality.

"The reaction was immediate: The four Republicans and one Democrat on the Board of Supervisors were deluged with thousands of telephone calls and emails from Trump supporters, many from out of state, some promising violence.

"'All five supervisors were receiving death threats,' said Mr. Gallardo, the Democratic supervisor. Two police officers were posted outside his home."

When one of the Republican senators later tried to back out, he gave a speech on the chamber's floor, and "his cellphone began buzzing with furious texts and emails. Some were threatening; some mentioned his wife's workplace and their toddler son.  It was like, 'You’d better watch your back — we're coming for you,"' [the senator] said. The family spent days in hiding before returning home with a 24-hour police guard."
But yes, Joe Biden's criticisms of Georgia's new election law are inflammatory.  That is the big problem.
Even setting aside Sterling's shamelessness in blaming violence on both sides, I noted in last Thursday's column that he was particularly slippery in describing the way Georgia's terrible new elections law hands power over to the state's Republican legislature as a means of manipulating election results.  Sterling wrote: "That is an ill-conceived part of the law. But it isn’t voter suppression."  I responded: "Right.  Not everything in the law is voter suppression, and this element is worse."  Hasen's piece was published soon thereafter, making that point much better than I could.

But it is worth thinking further about this "ill-conceived part of the law."  The Times ran a particularly good "explainer" on the elements of Georgia's much-reviled new law, which summarizes all of the ways in which the law does, indeed, include elements designed to suppress votes of people (especially Atlanta's Black voters) who are likely to support Democrats.  As The Times pointed out, however, Georgia's Republicans did not stop there, choosing also to change who in their system is allowed to officially approve election results.

It is important to remember that Sterling was responding to what he called "wild allegations" from President Biden and others that the new law would "allow the legislature to overturn elections."  Sterling immediately labels this as "false."  If one views Sterling's framing of the question literally, it is certainly true that the new Georgia law does not contain anything that amounts to saying: "If the legislature does not like the outcome of the popular vote in the presidential election, it can substitute its own slate of electors after the fact for the one that the people's vote would have sent to the Electoral College."

It is easy to see how people might think that something this blatant happened in Georgia, because a proposal to that very effect was floated in Arizona recently, and with all of the frantic Republican state-level action this year, it is quite plausible to imagine that one or more Republican state legislatures would do exactly that.  As it happens, Georgia's Republicans were (on this matter, at least) a bit more subtle.

But would the unsubtle version be legal?  Even without the completely baseless "legislatures-only" reading of the relevant constitutional provisions -- a reading that the Supreme Court's right wing might well embrace, despite its illogic -- the United States Constitution certainly allows a state government to enact a law under its own constitutional procedures by which presidential electors are appointed without any input from the people.  That might sound horrifying, but it is one of the ways in which the Constitution is shockingly tolerant of minoritarian rule.

As I have argued many times, however, even the most extreme Republicans at this point are likely not to want to be so blatant about rigging presidential elections.  Among other things, politicians in a swing state are unlikely to want to take their state out of the spotlight during the campaign.  This means that they need to be a bit more clever, allowing themselves to reverse or prevent unwelcome outcomes when necessary, even while appearing to run free and fair elections (while hoping that we will stop thinking about all of the voter suppression).

The Electoral Count Act purports to prevent legislatures from changing their methods of choosing electors after Election Day.  But assuming that such a limitation on states' power is constitutional (not at all a sure thing), states certainly are allowed to announce results long after election day -- and those results can (and often should) differ from the apparent winner on election night.
My imagination is somewhat limited when it comes to electoral chicanery, but I have suggested at a minimum that a state law could put in place procedures for recounts and certifications that would in fact amount to saying: "If the legislature [and, if the U.S. Constitution is understood correctly, the executive, subject to veto overrides] concludes, under some fig leaf of a procedure, that the people's vote was 'wrong,' then the legislature can substitute its own judgment."

Sidestepping any federal limitations, then, is unlikely to present much of a challenge to motivated Republicans at the state level.  And they are very motivated these days.  With Georgia and Arizona currently under Republican rule in both houses of their legislatures and in their governors' mansions, the only question is how far they will go, and how they will hide their intent to put in the fix on future elections.

Georgia's Republican governor is especially eager to make up for the fact that he chose to follow state law in 2020 and 2021, which has earned him the hatred of Trump and his rabid supporters.  It seems ridiculous to imagine that he (or Arizona's Republican governor) can ever atone for such a horrible perceived sin, but they are eager to try.  How, then, did Georgia's new law say, "We can steal future presidential elections, but we will do it with some small amount of finesse"?

There are at least two provisions of Georgia's law that are relevant to this question.  Sterling only responded to criticism of the less extreme provision, under which (as The Times described it) "the State Election Board, newly influenced by the partisan Legislature, will have the power to suspend county election officials. That part of the new law alarmed some Democratic legislators, who noted that it could particularly affect counties like Fulton, which contains 15 percent of those in the state who voted Democratic in the November election."
The Times acknowledged that "[t]he law does state that the bar for suspension is high," which is what Sterling emphasized.  The bigger issue is (again as summarized by The Times) the inclusion of "a few provisions that strip power from the secretary of state and indirectly shift it to the legislature by creating a new chair of the State Election Board. Previously, the secretary of state had served in that role.  The law dictates that the newly created chair be 'nonpartisan,' but the position is appointed through the partisan legislature."
In an effort to be as clear as possible, I edited the relevant portion of my piece from last Thursday to show that Georgia's Republicans did not in the very literal sense enact a legislative takeover of presidential elections.  On the original column, as well as here, I show in strike-through text what I deleted and in bold-face text what I added.  I have already quoted some of the unchanged language above:
"[Sterling] even goes so far as to dismiss as 'wild allegations' the claim that the law would allow the legislature to overturn the election, but his explanation merely shows that the new law requires several steps to do so, not that it does not allow it focuses on one aspect of the law, ignoring another provision that allows the gerrymandered Republican legislature to put loyalists in place who would do what Raffensperger (and Sterling) refused to do.  Moreover, he defends this provision with a diversion: "That is an ill-conceived part of the law. But it isn’t voter suppression."  Right.  Not everything in the law is voter suppression, and this element is worse.  Even without suppressing votes, it would allow the legislature to set aside predetermine the election's outcome without admitting what they have done."
So yes, the Georgia state legislature and governor have not expressly reserved to themselves the power to change presidential election results ex post.  They have, however, used their power to make it unnecessary to do so.  The guardrails in the law are a joke, and the state's Republicans have given themselves the power to put the "best people" in place on the State Elections Board.  This law could have been much worse, but it is likely to be more than enough -- even assuming that the many voter-suppression provisions of the law are insufficient on their own to prevent Georgia from ever again electing Democrats.


hardreaders said...

Excellent article, Prof. B., as always. I just have one minor nit. There's a typo in the GA administrator's first name. Instead of Gene it should be Gabriel. Thanks!

Neil H. Buchanan said...

Thanks!! I’ve corrected the error.