The Rise of Legislative Anti-Democracy

A rally participant holds a sign that reads "Let Us Vote!" in Reading, Pennsylvania on November 4, 2020. (Photo: Ben Hasty/MediaNews Group/Reading Eagle via Getty Images)

The Rise of Legislative Anti-Democracy

It isn't just voter suppression. State lawmakers from Arizona to Pennsylvania are trying to thwart any form of democracy that threatens their power.

It's upon us: a wave of legislation, in states across the country, aimed at making voting harder. The Brennan Center has tallied over 250 bills in 43 states this year that would restrict access to the ballot. Many would reverse the expansion of vote by mail, which helped lead to the soaring turnout of 2020, or would tighten ID requirements.

But the latest assault on voting shouldn't be seen in isolation. Some of the same Republican state lawmakers behind these measures are also taking steps to suppress any form of democracy that threatens them -- afraid, it seems, that the more say voters have in any form, the worse their side will fare.

"Some Republican legislatures whose voters backed President Biden in last year's election are mulling ways to make the Electoral College even less democratic."

With the next redistricting cycle kicking off this year, legislators in several states are working to rig the process in their favor, often by undermining recent reforms. In Arizona, Republicans are trying to skew the commission that handles map drawing by stacking it with GOP activists. And in Pennsylvania, lawmakers were so incensed by a state Supreme Court ruling against last cycle's gerrymander that they're trying to gerrymander the court itself by splitting judicial elections into separate districts, giving themselves yet more power to draw district lines (prompting the Philadelphia Inquirer to editorialize recently that "Pennsylvania's democracy might not survive" the effort).

Some Republican legislatures whose voters backed President Biden in last year's election are mulling ways to make the Electoral College even less democratic. Wisconsin and New Hampshire have seen proposals to allocate electoral college votes according to congressional district, which would skew presidential elections even further to the GOP. And an Arizona measure would let the legislature reject a presidential vote count certified by the secretary of state, potentially giving lawmakers the power to overturn the voters' will. These efforts to rig presidential elections face long odds of becoming law, especially in states with Democratic governors. But they're revealing as a window into the baldly anti-democratic mindset plaguing some statehouses across the country.

Another window into that mindset: the war on direct democracy. In recent years, citizen-activists have organized successful ballot initiative campaigns to extend voting rights, curb gerrymandering, expand Medicaid, and legalize marijuana, among other popular steps. Initiatives are an especially useful tool in states that are so skewed by gerrymandering that popular measures can't get a hearing at the state capitol. So naturally, Republican lawmakers in 24 states have introduced bills that would make it harder to organize and pass ballot initiatives, according to the Ballot Initiative Strategy Center.

Some of these would raise the number of signatures needed for an initiative to get on the ballot or tighten the rules on which districts the signatures can come from. Others would up the margin by which voters must support an initiative for it to be passed. In Florida, nearly 65 percent of voters in 2018 approved a measure restoring the franchise to people with past felony convictions. Not content with gutting that reform through new legislation in 2019, GOP legislators are now fast-tracking a bill that would raise the threshold for approval from a 60-percent super-majority to 67 percent.

Let's not forget about local democracy, either. The last decade has seen a wave of "preemption" laws, in which states, often responding to progressive local reforms, have curtailed the power of cities and counties to regulate in certain areas, threatening one of the few remaining venues -- local government -- where citizens can still make their voices heard. In one notorious example, after Birmingham, Alabama, raised its minimum wage, benefiting low-income, predominantly Black fast-food workers in the city, the state's all-white Republican caucus passed a law that wiped out the Birmingham measure by barring local governments from boosting wages.

"It's hard to ignore that this explosion of what we might call 'legislative anti-democracy' is coming from some of the same people who helped stoke an even more troubling effort to overturn the will of the people."

Now, the coronavirus pandemic has spurred a new round of preemption, targeting local efforts to protect public health -- as highlighted in a recent report by the Local Solutions Support Center, which supports local democracy. Michigan and Ohio are among the states that saw bills introduced last year to ban local mask requirements, which would leave the leaders of Detroit, Cleveland, and other cities with no way to ensure their citizens were protected by this simple and effective public health step. A Tennessee bill would bar local governments from requiring business closures. And a proposed Missouri measure would prevent county health boards from issuing public health orders.

It's hard to ignore that this explosion of what we might call "legislative anti-democracy" is coming from some of the same people who helped stoke an even more troubling effort to overturn the will of the people. At least 14 Republican state lawmakers attended the January 6 "Stop the Steal" rally that led to the Capitol insurrection, and they continue to serve. At least one, State Sen. Doug Mastriano of Pennsylvania, has been a leader in his state's effort to pass restrictive voting laws.

So how should we respond when the enemies of democracy are themselves elected through our, albeit troubled, democratic system? The For the People Act and the John Lewis Voting Rights Advancement Act are crucial first steps. Together, they'd make it much harder for states to restrict voting and would curb the gerrymandering that encourages this kind of extremism by creating so many uncompetitive districts.

But we also need to start thinking about structural reforms, targeted specifically to state legislatures, that could incentivize more responsible governing. And over the long term, we need to create a stronger democratic culture across the country. Ultimately, we need to make efforts to restrict democracy so toxic that no elected official would even contemplate them. Only then will it be safe to declare victory.

© 2023 Brennan Center for Justice