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US: Election deniers suffer defeats in midterms but threats to rule of law remain

William RobertsWednesday 7 December 2022

The results of the United States’ midterm elections signalled a defeat for former President Donald Trump’s election denialism and a win for American democracy. High-profile Republican candidates who had supported Trump’s ‘Big Lie’ – that Trump won the 2020 presidential election – were defeated in key US states. However, election law experts say the new political landscape is complex and threats to the rule of law continue.

Among the losers were Republican candidates for governor in Arizona, Pennsylvania and Wisconsin, all of whom were proponents of the Big Lie. Trump-backed candidates for secretary of state lost in Arizona, Michigan and Nevada. Democrats held on to a narrow majority in the US Senate and lost the House of Representatives as expected, with the final margin of Republican control likely to be nine. ‘If the election had gone a different way, there could have been a real, continued red flag for US stability’, says Matt Kaiser, Vice-Chair of the IBA Criminal Law Committee and a partner at KaiserDillon in Washington, DC.

The fear had been that Trump’s preferred candidates would win, setting up a scenario in which the outcome of the 2024 presidential election might hinge on a few Republican office-holders unbound by democratic norms or law, Kaiser explains. ‘The trend line is improving. But I don’t think we’re out of the woods’, says Kaiser, who is among a group of lawyers suing Trump in federal court over the 6 January attack at the US Capitol.

Indeed, the US remains a nation divided along partisan lines as the two major parties consolidate their holds on core ‘red’ and ‘blue’ (Republican and Democrat, respectively) states. As a result, the 2024 presidential election is likely to be decided by a few hundred thousand voters in a handful of key swing states. Kaiser and others see signs of trouble ahead. ‘There’s a natural suspicion among American voters – and its historical – that the voting process is prone to funny business’, says Jan Baran, a Republican election law specialist and a partner at Holtzman Vogel Baran Torchinsky & Josefiak in Washington, DC. ‘Trump was capitalising on that suspicion in 2020.’

If the election had gone a different way, there could have been a real, continued red flag for US stability […] But I don’t think we’re out of the woods

Matt Kaiser
Vice-Chair, IBA Criminal Law Committee

Even with November’s election losses, Trump remains an important figure in Republican politics. He has declared his intent to run for president again in 2024. His top competitor to secure the Republican nomination is likely to be Florida Governor Ron DeSantis, who pushed through a partisan gerrymander ahead of last month’s voting.

Politicians on the Republican fringe who won re-election are becoming more prominent. Trump acolyte Marjorie Taylor Greene, a controversial member of the House from rural Georgia, is emerging as newly empowered and a part of House Republican leadership. Greene has threatened to withhold support from necessary spending and debt-limit measures in order to prevent the US Department of Justice from investigating Trump. Failure to lift the perennial limit on US Treasury debt would have severe consequences for global financial markets.

The US Supreme Court is set to hear oral arguments on 7 December in a case involving the ‘independent legislature theory’. Potentially, the Court’s conservative justices could overturn established US law to give state legislatures near-absolute power over elections, including to re-draw congressional maps, free from judicial checks. ‘It’s a real threat to American democracy’, says Kaiser.

Meanwhile, Congress has yet to pass proposed Electoral College reforms designed to fix the election certification process. Failure to pass the reforms in the lame-duck session – the period before the 118th Congress begins in January – would leave in place the outdated rules Trump tried to exploit.

Even so, the election results offered some evidence that most voters are turned off by Trump’s lies. For example, Pennsylvania was one of three Midwest states that gave Trump the presidency in 2016 but flipped to Biden in 2020. Doug Mastriano, the Republican candidate for governor, had chartered a bus to attend Trump’s 6 January rally. As a state senator, he tried to push a bill through the legislature that would have reversed Biden’s 2020 win in the state.

Mastriano was defeated resoundingly by Democrat Josh Shapiro, who won by nearly 15 percentage points. ‘Those who ran on the theme of 2020 denialism were – by and large – challengers, or incompetents. Almost all of them lost’, Baran says. ‘The Trump supporters failed to demonstrate any modicum of truth. Their entire campaigns were living in the past on a broken theory and were not offering an attractive alternative to the Democrats.’

The results, however, were closer in Wisconsin, where Republican Tim Michels was defeated by Democrat Tony Evers in the gubernatorial race by three percentage points, and in Arizona, Kari Lake – another candidate to deny the results of the 2020 election – lost to Democrat Katie Hobbs by just 0.6 per cent of the vote.

Ripping a page from Trump’s playbook, Republican Lake has publicly criticised Arizona election staff. When the Maricopa County Board of Supervisors – which represents the Phoenix area containing 60 per cent of the state’s population – met later in November to certify the results as accurate, a parade of Lake supporters hurled verbal abuse at panel members. In rural Cochise County, Republican board members simply refused to certify the election results, leading to the intervention of a court, which forced the confirmation of the results.

Lake has alleged problems during midterm election voting in the state, claiming in late November that ‘more than half of the polling places had major problems that made them inoperable or practically inoperable. Lines where people were just walking away.’ Local election officials have maintained that the election was ‘safe, secure and accurate’.

Lake continues to refuse to concede as at the time of writing – though the completed election count shows Hobbs won by 17,116 votes – and reportedly plans to challenge the election in court. According to Kaiser, it’s unclear how much legal traction Lake’s claims will gain, or whether like Trump’s 2020 election lawsuits, they will be dismissed.

Heading into the 2024 presidential cycle, the defeat of candidates who espoused Trump’s Big Lie in key swing states is a clear message that voters are ready to move on. But with the former president still on the scene and his allies wielding power in the House, more wild claims and attempts at chaos can be expected.

Image caption: Alexander/AdobeStock.com

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