Those watching America’s election process are sounding the alarm; increasingly America’s free and fair elections, the system of one voter – one vote, is being challenged. State after state, most Republican-controlled (either governor, or legislators, or both) are questioning and legislating around long-practiced election process: moves are in play that could give partisan majorities near-total control over how voters cast ballots and how those ballots are counted.
A North Carolina challenge to a ruling by the North Carolina Supreme Court has been accepted by (based on their recent actions) what is a right-wing activist U.S. Supreme Court. It would strip the right of state Supreme Courts from their ability to check and balance state legislators — and represent the people — when the legislators make laws for federal elections.
Across the country including here in Colorado, shadowy “Election Integrity groups” have popped up, claiming to be grassroots. In actuality, as pointed out by the League of Women Voters, this appears to be yet another orchestrated, election conspiracy disinformation attempt.
Here in Colorado, residents know our voting is done with Mail Ballots. Our ballots arrive in the mail and they can be submitted in-person, mailed back, or if you forget that ballot, you can go vote in person. Our entire voting system, which includes paper ballots and a vote-counting system not connected to the Internet, followed by paper-ballot-based risk-limiting audits has been called “the gold standard” for the nation.
Not only does it make sense in a rugged state with all but nine of its sixty-four countries basically rural, the effort has encouraged higher voter turnout. There appear to be more unaffiliated voters in Colorado than either major political party, Republicans or Democrats, and that turnout has increasingly been represented in elections.
Also in Colorado, the current Secretary of State Jenna Griswold, a Democrat, and former Secretary of State Wayne Williams, a Republican, have come together to combat election misinformation. They are promoting a new Colorado website — GoVoteColorado.org — that specifically lays out information about voter registration, signing up to become a poll workers, and the state’s effort to encourage veterans to work elections.
Such collaborative efforts are not apparent in other states. Many rural Nevada counties, all heavily-Republican, are reportedly demanding to vote with paper ballots that would be hand-counted:
“Officials in some parts of rural Nevada are vowing to bypass voting machines in favor of hand counting ballots this November and the Nevada Secretary of State’s office is proposing statewide guidelines on how to do it. The communities pushing for hand-counting are in conservative rural parts of the state where election misinformation has grown. But four voting rights groups came out against the proposed rules Friday before the secretary of state holds a hearing seeking feedback.”
Wisconsin a Case Study in Voter Suppression
In Wisconsin, also a largely rural state, in early August, the Wisconsin Supreme Court ruled that absentee ballot drop boxes are illegal. Voters casting absentee ballots this fall for the highest state offices won’t be able to return their ballots in upcoming elections by using drop boxes following a ruling Friday by the Wisconsin Supreme Court’s conservative majority. In the 2020 election, more than 40 percent of all votes cast that year were through absentee ballots.
In Wisconsin, where there was a statewide primary set for Aug. 9, the 4-3 Wisconsin Supreme Court (packed with Republican-appointed judges) handed down a decision that is a win for Republicans who now oppose the longstanding use of ballot drop boxes in that state. It reinforces former President Donald Trump’s allegations (with no evidence) that absentee voting was full of fraud and led to his reelection loss in 2020.
The majority opinion announced that now only state lawmakers may make new election policies regarding ballot drop boxes, not the Wisconsin Elections Commission, which had issued guidance to clerks allowing them.
The ruling delivers critical blows to Wisconsin Democrats, barring the use of drop boxes where they are most popular: the liberal centers of Milwaukee and Madison. It also could disenfranchise those with disabilities, for whom drop boxes were not just convenient, but helped them overcome obstacles such as being able to enter a county clerk’s office to vote.
Democratic incumbent Governor, Tony Evers, who has made voting issues central to his reelection campaign this year, said the ruling is “another in a long line of Wisconsin Republicans’ successes to make it harder for Wisconsinites to exercise their right to vote.”
Congressional Map Gerrymandering on the Rise
When Colorado voters approved a ballot question in 2018 to remove the process of redrawing the congressional maps from the state legislature to an independent commission, that decision was hailed by many as a step forward in reducing the possibility of gerrymandering to create party majority districts.
Colorado population growth has tended to shift the state toward the left in metro areas and some tourism-enlightened counties; by and large, rural counties have remained more conservative. The independent commission managed to make most districts competitive; voter fairness not necessarily evident in other Republican-controlled states.
In other states, allegations are being made with no evidence, that absentee voting was fraudulent or contributed to Trump’s reelection loss in 2020, and action to reduce ballot box availability is proceeding. Many of the attempts are in states where close election results in 2020 became the subject of slates of false electors attempted by Republican loyalists.
“At the very heart of our democracy is the fundamental right for every eligible voter to be able to cast their ballot — a right that’s far too important to be left to the whims of any politician or political party,” said Evers in a statement. “We should be working every day to protect that fundamental right by making it as easy as possible for every eligible voter to vote in Wisconsin.
The case that could blow up U.S. Election Law:
In early August, members of the U.S. Supreme Court’s conservative supermajority took the next step in a little-noticed, but extremely dangerous, project. They have accepted a case that attempts a radical misinterpretation of the Constitution’s elections and electors clauses.
If successful, an obscure legal theory (known as the independent-state-legislature theory), would create electoral chaos across the country. It would hand legislatures with partisan majorities near-total control over not just how voters cast ballots, but actually authority over how those ballots are counted.
In a case that will be decided by next summer (ahead of the 2024 presidential election), the Supreme Court could strip state supreme courts and state constitutions of their ability to check and balance state legislators when they make laws for federal elections.
The fringe theory is so far out there that the few who support it have had to stretch to come up with a few small case law scraps to substantiate it. In any other era, the Supreme Court would refuse to hear it. But far-right Fox News is starting to talk it up, and supporters of a Supreme Court hearing for this fringe theory are citing a shortcut around the need for true legislative precedent. It’s a North Carolina case called Moore v. Harper, and in early August, they put it on the Court’s fall term docket.
Here’s the background: the North Carolina Supreme Court undid an extreme partisan gerrymander of the state’s congressional map that would have given Republicans a large advantage in races for House seats. Republican state legislators then demanded the Supreme Court to restore the biased map for this spring’s primary elections, which it refused. State Republicans’ emergency filings claimed that the North Carolina state supreme court didn’t have the power to even review the legislatively drawn congressional map. But the map being replaced violated several guarantees in the state’s constitution. That didn’t matter to the Republicans, who claimed that by their reckoning, neither state courts nor state constitutions should have a say in how federal elections are run.
Legal scholars, say this is a stark misinterpretation of the Constitution. Under this theory, ordinary checks and balances of democracy—such as executive officers vetoing laws and courts reviewing and striking down the legislature’s acts — wouldn’t matter. It would be raw authoritarianism applied to elections.
Then there is Ohio — the only other state besides Colorado that passed a ballot question a few years ago to assign the drawing of congressional election maps to a third-party commission. While in Colorado the process was deliberative, in Ohio, which also voted for an independent commission to redraw its maps, state Republicans have continued to reject the recommended maps. This has confused the electorate as to which state candidates are actually going to represent their counties.
If this horrifies you, it should. The current Supreme Court has a horrible track record on voting rights and making them the ultimate judge of whether the legislatures’ actions are legal is well — the fox in the hen house.