The turmoil of this election year continues. A month after balloting there remains one contest yet to be decided. Voter fraud is suspected in North Carolina’s 9th Congressional district, and it is not known who will emerge victorious. The soon to be Speaker of the House, Nancy Pelosi, has intimated that the chamber will refuse to seat the nominal victor, Mark Harris, until a full investigation is completed. It is even possible that the incoming 116th Congress will take the extraordinary step of calling for a new election.
The suspected fraud in the 9th District is not the worst of it. Several states are now embroiled in post-election maneuvering by Republican lawmakers hell-bent on stripping away the powers of incoming Democratic governors, secretaries of state and attorneys general. Although the very definition of a rigged system, neither Trump nor Kris Kobach, the discredited head of Trump’s disbanded voter fraud commission, have had anything to say about these travesties. The national Republican Party stands equally mute.
In the following paragraphs, I describe some of the targets, tactics, and actions of Republican lawmakers in Wisconsin, Michigan, and North Carolina who would wantonly steal their state’s elections for their own purposes. November balloting in each case has resulted in a split state government, i.e., Republican legislative majorities and Democratic executives.
More than the natural environment is under attack. Should these assaults on democracy succeed, the same or similar tactics will be used in the future to defeat hard won victories to regulate greenhouse gas emissions, preserve wetlands, increase the use of renewable energy source, and all that is necessary to maintain a habitable environment. It is vital for climate hawks to be aware of the tactics being used to diminish not just the duly-elected individuals but the offices they will hold.
Consider as you read through the following paragraphs why Clean Air Carolina has joined with the NAACP and the Southern Environmental Law Center to fight against those who would disenfranchise voters and usurp the powers of North Carolina’s chief executive. Look for the similarities in the targets and tactics of the Republican lawmakers in all three states. Ask why Republican lawmakers would want to have an even number of members on election boards or nominating panels, that are evenly divided between the two parties?
Most of all, learn from these experiences. To fight effectively, climate defenders must be able to think like those who would defeat them. It is not enough to be angry.
Laws and sausages
There is nothing new in the efforts of politicians to “steal” elections. Having grown up in Chicago during Mayor Richard J. Daley’s 21-year reign, I was introduced early to the seamier sides of politics. I have vivid memories of my father pointing to cemeteries we would pass and his telling me what good Democratic precincts they were.
Daley ruled Chicago with an iron hand and a well-oiled political machine. Last of the big-city bosses, Daley is the stuff of urban legends. A story is told of how he stole the election for John F. Kennedy. Kennedy won the state by less than 9000 votes—all cast, far as anybody knows, by the living. The accusation is more myth than reality; although there were Chicago elections that could legitimately fit the definition of “rigged.”
Daley had his faults, but unlike Republican lawmakers in Wisconsin, Michigan, and North Carolina, he had the decency to steal elections before the votes were counted—not after. Republicans in these three state legislatures are refusing to accept the will of the people because the results don’t suit them.
It is hardly a coincidence that these states are also involved in pending lawsuits—accused of partisan gerrymandering. The three are not the only ones having to defend their divisions of the political pie. (See Figure 1)
Trump is half-right, elections are being rigged—just not by the Democrats. According to the Brennan Center for Justice, gerrymandering by Republican legislatures during the decade has created “sobering disparities” between the parties. These actions distort American democracy and muffle the public’s voice.
The partisan divide in this country has gotten so deep and wide that it is eroding the foundation upon which the nation stands. Jim Martin, the Republican governor of North Carolina between 1985 and 1993, said of the post-midterm maneuvering in his state–
It would be a mistake to say this is a partisan fight between Republicans and Democrats. It’s worse — it’s legislators versus governor.
Partisan gerrymandering is part of a rising trend that has its roots in identity politics and the hyper-partisanship it breeds. Republican lawmakers in Michigan, North Carolina, and Wisconsin are looking to live Trump’s fantasy of having reign over the three branches of government. As a Plan B, Republican lawmakers are looking to guarantee themselves and their party control in perpetuity of their state’s legislature and, insofar as possible, its Congressional delegation.
The US Supreme Court (SCOTUS) is at least partially responsible for the current state of voter affairs. For decades the High Court has resisted getting involved in gerrymandering lawsuits in any conclusive way. Opinions in cases that have been decided by federal and state courts, have varied widely. Prior to the November midterms SCOTUS had an opportunity in the Wisconsin case Gill v. Whitford to provide clarity. They chose not to.
A three-judge federal panel declared the 2011 Wisconsin reapportionment plan of the Republican legislature unconstitutional based on it violating the plaintiffs’ rights of equal protection and freedom of association. On appeal SCOTUS, in a unanimous decision, chose not to address the threshold question of the constitutionality—deciding instead that the plaintiffs lacked standing to sue. As I have written before the rules of standing require a plaintiff to have suffered an actual injury or harm, traceable to the actions of the defendant, and capable of redress by the court.
Justice Kagan wrote a separate concurring opinion in Gil stating that partisangerrymandering is “incompatible with democratic principles,” and a “disfavored party … may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office.”
Kagan went on to say that partisan gerrymanders have “become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides.” The Justice has also expressed her opinion that the 2010 redistricting cycle–of which the Wisconsin plan was a part—”produced some of the worst partisan gerrymanders on record and that the 2020 cycle will only get worse.”
In November Wisconsin Republicans captured 63 of the 99 Assembly seats—a super-majority—having won only 46 percent of the votes. The count in the state Senate was 19 to 14 in favor of the Republicans. For statewide offices, the numbers were in line with the outcomes. The Democrats won the races for governor, attorney general, state treasurer and secretary of state with 52 percent of the vote.
About to lose their hold on the governor’s mansion, Republican lawmakers in Wisconsin have moved quickly to limit the powers of both the incoming Democratic Governor, Tony Evers, and the newly elected Attorney General, Josh Kaul. They have put forward a package of legislation stripping certain powers from both the governor and attorney general handing them over to the legislature. Provisions of the proposed laws would:
- Prohibit municipalities from allowing more than two weeks of early voting—cutting in half the time currently permitted;
- Give the legislature the power now given the governor to appoint the majority of members of certain commissions, e.g., the Wisconsin Economic Development Corporation;
- Bar the governor from installing any political appointee whose confirmation is rejected by the Senate. Current law allows a governor to renominate such appointees or allow them to serve as a provisional appointment;
- Require the governor to get permission from lawmakers to seek adjustments on programs run jointly by federal and state governments such as public benefits programs, e.g., work requirements for Medicaid, Obamacare, and energy grants;
- Allow legislative leaders to intervene and hire their own lawyers—independent of the attorney general—if the constitutionality of a law is being challenged, e.g., challenges to the Affordable Care Act, Clean Air, and Water Act regulations;
- Prohibit the attorney general from appointing a solicitor general to represent the state in major lawsuits, e.g., challenges to the proposed Affordable Clean Energy Rule ;
- Restrict the attorney general in deciding how settlement money recovered through lawsuits is to be spent (distributed), giving legislators oversight authority, e.g., Volkswagen Clean Air Act settlement.
It is incredible—to me at least–how brazen and unapologetic the Republicans are about what they are doing. Assembly Speaker Vos explains the Republican actions this way–
We did have an election…I respect the fact that Tony Evers is the governor and is going to be starting on January 7. But he’s not the governor today, and that’s why we are going to make sure that the powers of each branch are as equal as they can be.
Senate Majority Leader Scott Fitzgerald told a conservative radio host: “We don’t trust Tony Evers right now in a lot of areas.” Fitzgerald openly admits that had Walker won a third-term this wouldn’t be happening. That a majority of Wisconsin voters trust Governor-elect Evers seems not to matter to Fitzgerald and his Republican colleagues.
The legislative package is now on Governor Walker’s desk. He is expected to sign it despite the outcries of voters and the incoming governor and attorney general—to say nothing of all the negative media attention that surrounds the moves. Governor-elect Evers and the incoming Attorney General Josh Kaul have promised they will be seeing the legislators in court.
The war between Republican lawmakers and Democratic executives is being repeated in Michigan and North Carolina. In November Democratic candidates for the Michigan House of Representatives received a total of 2,092,164 votes, while Republicans received 1,917,150 votes. Republicans will have a 58-52 House majority in 2019.
In the Michigan Senate races Democrats out-polled Republicans 2,062,494 to 1,945,209. When the new Senate is called to order Republicans will outnumber the Democrats 22-16.
With the loss of the governor’s mansion just weeks from now, Republican legislators in Michigan have introduced two proposals that would limit the power of Governor-elect Gretchen Whitmer, as well as that of the attorney general and secretary of state.
One proposal would allow the legislature to intervene in any legal proceedings involving state laws that the governor and attorney general may be reluctant to defend, e.g., Medicaid work requirement. A separate proposal would shift oversight of campaign finance law from the secretary of state to a six-person commission whose members are nominated by the state Republican and Democratic parties—with three seats going to each. The move would produce deadlock in most cases, likely entrenching a status quo shaped by Republican officials. There is a good reason why commissions, boards, and other government groupings are comprised of an odd number of positions.
Not surprisingly, Democratic lawmakers are calling the proposals “a shameful power grab.” Samantha Hart, speaking for House Democrats, suggests that the move by Republicans “threatens the separation of powers, wastes tax dollars, and raises a number of constitutional issues.”
Voters in Michigan made their feelings about the legislature’s partisan gerrymandering known in their support for Proposition 2. The ballot initiative puts an independent commission in charge of redrawing the state’s congressional districts.
Republicans defying democracy and diminishing the power of Democratic governors is nothing new for North Carolina. The State’s executive and legislative branches have been in an almost constant state of conflict since 2016. The Republican-controlled General Assembly previously passed a series of bills to undermine the authority of Democratic Governor Roy Cooper.
In the November elections Republicans maintained their majority in the North Carolina House of Representatives, winning 64 seats to the Democrats’ 53. Democrats, however, broke the Republican supermajority in the chamber by keeping them below 72 seats.
The latest ploy by Republican lawmakers in North Carolina was to place on the November ballot state constitutional amendments limiting gubernatorial powers. The proposed measures of greatest concern were:
- An amendment transferring the power to make appointments to the eight-member Bipartisan Board of Ethics and Elections Enforcement and other state boards and commissions to the legislature from the governor to the legislature;
- An amendment taking away the Governor’s power to fill judicial vacancies that occur between judicial elections. The proposed change establishes a commission to recommend candidates to the Legislature, which then recommends at least two nominees to the Governor for a final selection.
- An amendment requiring voters to show a photo ID before voting in person.
The proposed amendments were an extension of similar efforts by Republican lawmakers in the wake of the 2016 election in which Governor Cooper defeated the incumbent Republican Pat McCrory by 10,000 votes.
The measures made it on to the November ballot despite earlier versions having been struck down by a North Carolina court and the need to override Governor Cooper’s veto. In an “extraordinary rebuke” five former governors—two Republicans and three Democrats—came together to oppose the amendments stating they would shred gubernatorial power and government checks and balances.
Like their Wisconsin cohorts, Republican lawmakers in North Carolina are unapologetic about their efforts to dilute the powers of an executive not of their party. The Speaker of the House called the lawsuits over the original language of the proposed amendments “spurious” and “frivolous.” Another leader of the Republican pack called the suits just one more prong in a liberal strategy of “sue till blue.” The court apparently had a different take on the situation having declared the original language unconstitutional.
Only the Voter ID amendment was approved by voters in November.
The NAACP and Clean Air Carolina, working with the Southern Environmental Law Center, opposed all three ballot measures, as well as a fourth proposal to cap the state income tax at seven percent. The organizations first sought to keep the measures off of the November ballot on the grounds they would radically restructure the government and significantly erode the separation of powers. These organizations understand their overlapping interests. The groups that Republican lawmakers hope to disenfranchise are among those who fight hardest for climate justice.
If the previously mentioned fraud in the 9th Congressional District was not already complicated enough the election board that is refusing to certify the 9th District’s ballots is due to be disbanded under an earlier order of the court. The proposed constitutional amendment failed to get enough votes, so a new bill to replace it has been introduced. The bill would require every county’s election board to be chaired by a member of the party with the highest number of registered voters in odd-numbered years, and by a member of the party with the second-highest number of registered voters in even-numbered years.
Although the proposed arrangement appears fair on its face, it is far from it. North Carolina has more registered Democrats than Republicans and elections occur only in even numbered years. Republicans, therefore, would be in charge of every election, every election year.
The legislation reminds me of a Russian news story some years ago that touted its athletes coming in first in a track meet. The header also announced that the US came in last. Technically the statements were true—although there were only two teams in the competition. I had always thought the US version of the story would have had the Russians coming in next to last.
Registered Democrats in North Carolina outnumber Republicans, yet the 2011 map drawn by the legislature gives Republicans 10 of the 13 congressional seats. A result that is similarly skewed to the one in Wisconsin. The chair of the legislature’s redistricting effort in North Carolina was asked why the districts were not more reflective of voter affiliations. His response:
“I think electing Republicans is better than electing Democrats. So, I drew this map in a way to help foster what I think is better for the country,”
The harsh reality of that statement is really the fault of the courts. The judiciary has ruled against racial gerrymandering based on federal voting rights laws and the US Constitution. However, the courts’ failure to definitively rule on the constitutionality of partisan gerry-mandering allows North Carolina Republicans and those in other states to protect their particular interests. Such self-serving apportionment violates any sense of fair-play, but it is not illegal.
The deceit and deception of the Republican lawmakers in the three states serve not only to weaken the executive offices they’ve targeted; it disenfranchises voters and calls into question why elections even matter. Of course, limiting voter participation may be the lawmakers’ intended purpose, as larger turnouts historically favor the Democrats.
The issue throughout all of these cases is the extent to which the Republican lawmakers have gone to blunt the impact of Democratic voters. It is not as if Democrats have never used their majority status to advantage, e.g., redrawing election maps or changing voting rules within Congress or a state assembly. Apportionment is by its very nature partisan–it all comes down to a matter of degree.
The actions of Republican lawmakers cannot be defended by referencing what Democrats may have done in the past. If it could, then the Democrats would be well within the bounds of propriety to disenfranchise Republicans the next time they control the legislative and executive branches. An outcome Republicans would surely detest.
Politics in the extreme is already crippling the ability of governments to function and fulfill their responsibilities to citizens. In all three states, Republicans are intentionally creating gridlock by their proposals to create boards and commissions comprised of an equal number of members from each side—especially in this era of hyper-partisanship. The parties are not going to put moderates in place for fear they will “go over to the dark side.”
Today’s battles between Republicans and Democrats in the US Senate over judicial nominations had their start in 2013 when Harry Reid (D-NV) chose the nuclear option to confirm nominees by a simple majority. What will the seeds planted today by Senate Republicans grow into tomorrow?
Republicans both in Federal City and state capitals would do well to remember that despite their current occupation of the White House and their majorities in the US Senate and state legislatures like Michigan, North Carolina, and Wisconsin, they have not outpolled Democrats in the total votes cast in either 2016 or 2018.
The sabers of congressional House Democrats are already being rattled at Trumplicans. The next two years will see a constant stream of oversight hearings and score-settling. Newton’s law of motion pertains as much to politics as it does physics. In their ham-handed efforts to hobble Democratic governors, attorneys general, and secretaries of state Republicans risk the equal or greater reactions by Democrats. Each election cycle seems to increase the intensity of the actions/reactions taken in its wake.
Democracy survives by the consent of the governed. It requires rules that are fair, just and followed—by everyone. The actions of Republican lawmakers in Wisconsin, Michigan and North Carolina, as well as the voter fraud cases in Georgia and Kansas—where two gubernatorial candidates oversaw their own elections because of their positions as secretaries of state–threaten to scrub-out the lines that separate the three branches of government. Should the three branches ever become one, democracy will be lost.
Lead image: Casey Robertson on Unsplash