The lasting legacy of the ‘Big Lie’
Image caption: A sign supporting Republican presidential candidate and former U.S. President Donald Trump, reading "Take America Back 2024", stands in Newport, New Hampshire, U.S., September 5, 2023. REUTERS/Brian Snyder
From Ohio to Wisconsin, legal warfare is wreaking havoc on American democracy. Global Insight examines how elections themselves have become a rule of law battleground.
When pro-abortion advocates succeeded in putting a proposed amendment to Ohio’s state constitution on the ballot in November’s upcoming state-wide elections, Republicans in the state legislature responded by forcing a special election in August. The issue at hand for voters was whether to raise the approval requirement for constitutional amendments from a simple majority to 60 per cent of the vote.
While, on the surface, the Ohio fight was about abortion rights, it was equally about how some legislators in key US states are seeking to change rules, often in under-the-radar ways, to keep or gain power.
The focus of battles over election rules – and who gets to decide the rules – is turning to key swing states
The US Supreme Court’s reversal last year of its 1973 decision in Roe v Wade overturned nearly 50 years of legal precedent guaranteeing abortion rights nationwide and sent the issue back to the states. A handful of states have adopted constitutional measures to protect abortion rights, while legislatures elsewhere have sought to impose abortion bans.
Ohio’s pro-abortion amendment garnered 59 per cent support in polling, probably more than enough to pass but short of the proposed 60 per cent threshold. Ohio Republicans further sought to eliminate a ten-day cure period in which amendment petitioners may address problems with supporting signatures. And they wanted to require signatures from each of the state’s 88 counties – double the 44 presently needed. Combined, these changes might well have prevented any future amendments to Ohio’s constitution by popular vote.
Ohio voters rebuked the manoeuvre by a 57-to-43 per cent vote, rejecting any increase in the requirements for future constitutional amendments and setting up the pro-abortion measure for probable passage in November.
Now, with the 2024 US presidential election just 14 months away, the focus of these kinds of battles over election rules – and who gets to decide the rules – is turning to key swing states. Pro-democracy advocates see election laws under attack in Arizona, Florida, Georgia, Minnesota, Nevada, Ohio and Wisconsin.
The ‘Big Lie’ continues
Following the 2020 election, former President Donald Trump propagated what’s now known in American politics as the ’Big Lie’, which is the false claim that Trump actually won but Joe Biden stole the election through fraud.
To this day, Trump continues to claim the election was ‘rigged’ and he disparages Biden and the Democrat Party as ‘radical left Democrats, Marxists, communists, fascists’ who are ‘corrupt’ and will ‘cheat’ to win elections. ‘They rigged the presidential election of 2020. We’re not going to allow them to rig the presidential election of 2024. We won’t have a country left’, Trump told several thousand cheering supporters at a rally in South Dakota in September.
Of course, there’s no evidence to back up Trump’s claims. He and his allies filed more than 60 lawsuits challenging 2020 counts in key states. They lost all but one minor case.
It was this reckless disinformation campaign by Trump and his political allies that fuelled the 6 January 2021 insurrection at the US Capitol. It has created a divide in American politics. While most Americans recognise Biden as the legitimately elected president, 57 per cent of those who identify as Republicans still say Biden’s election was illegitimate, according to a national AP-NORC survey published in August.
Some state and local Republicans have used Trump’s demagoguery as cover, relying on the former President’s false claims to limit mail-in voting, purge voter rolls, prohibit drop boxes and disenfranchise Black voters. In the months that followed Trump’s defeat, Republican-led states put forward dozens of bills restricting voting rights and election procedures. At least 19 states passed laws restricting access to voting in 2021, according to the Brennan Center for Justice, a nonpartisan pro-democracy advocacy based in New York. ‘Had these bills been in place in 2020, they would have significantly added to the turmoil that surrounded the election, and they would have raised the alarming prospect that the outcome of the presidential election could have been decided contrary to how the people voted’, a coalition of voting rights advocates warned in 2021.
Voting threats and ‘extreme’ gerrymandering
In Wisconsin, a presidential swing state that Biden narrowly won over Trump in 2020, Republicans in the state Senate voted in mid-September to remove the nonpartisan administrator of the Wisconsin Elections Commission – Meagan Wolfe – from office. The Senate majority leader cited concerns about the running of state elections and a ‘lack of faith’ in Wolfe – claims the administrator refutes.
The move comes amid a rise in political violence and hate speech in the US. Indeed, since 2020, there has been a surge in politically motivated threats and intimidation against many of the 10,000 state and local election administrators across the country. Nearly one in three election officials say they’ve been abused, harassed or threatened because of their job, according to an April survey by the Brennan Center for Justice.
In Wisconsin, Wolfe has, since 2019, been the administrator of the six-member bipartisan commission that runs elections in the state. Her job is to execute the public commission’s decisions. But, despite the support of commission members from both parties, she was the target of conspiracy theories in the state assembly after Trump lost. ‘False claims about election administration in the state of Wisconsin have proliferated since 2020’, Wolfe said in an open letter to nearly 2,000 municipal and county clerks who make elections happen at the local level.
Wisconsin Attorney General Josh Kaul filed a lawsuit on the Commission’s behalf, asserting that Senate leaders had no basis in law to remove Wolfe. The case is likely to end up in Wisconsin’s Supreme Court, where Republicans are threatening to impeach newly elected Justice Janet Protasiewicz. Wisconsin State Assembly Speaker Robin Vos has raised concerns that Protasiewicz has ‘pre-judged’ an upcoming challenge to Republican-drawn legislative maps, based on her comments when campaigning for election, and argued she should recuse herself from the case. However, Senate Minority Leader Melissa Agard said in a statement that ‘considering impeachment mere weeks after Justice Protasiewicz has been sworn-in is utterly absurd’.
Protasiewicz was the victor in a race that focused heavily on abortion and legislative redistricting. Her seat on the bench is likely to be decisive in the pending lawsuit by voting rights groups, which has asked the high court to throw out Republican-drawn election maps setting boundaries for 132 state legislative districts.
Earlier this year, the Princeton Gerrymandering Project graded Wisconsin’s maps an ‘F’ against a set of quantitative metrics, finding the maps reflected a Republican bias with ‘some of the most extreme partisan gerrymanders in the United States’. Wisconsin’s electorate is divided roughly 50–50 between Republicans and Democrats. But its state legislature is controlled by Republicans 22–11 in the Senate, and 64–38 in the lower Assembly, in no small part due to its ‘gerrymandered’ district maps.
After Biden won the state of Georgia in the 2020 presidential election, Republican legislators reacted by passing a sweeping election law in spring 2021 that curtailed mail-in ballots, early voting and drop boxes. The law goes as far as to ban mobile polling stations, except in emergencies. According to Georgia’s Governor, Brian Kemp, the law is about ensuring ‘elections are secure, accessible and fair’.
The Georgia law further empowers a state elections board to review and replace county election boards. The provision potentially allows officials who would be newly installed by the legislature to make decisions about how voting will be conducted, and to certify or not certify results in specific counties.
Georgia further empowered individuals to challenge the voter registrations of other people, creating a coordinated fraud hunter cadre that has proven abusive. More than 92,000 individual registrations were challenged in 2022, mostly proving baseless, according to data assembled by voting rights advocates. Georgia-based Fair Fight is suing in federal court under the US Voting Rights Act to block such mass challenges, which largely only have the effect of burying local officials in paperwork.
Similar struggles are playing out in other states. In North Carolina, the Republican legislature imposed an extreme gerrymander on voting districts and instituted a restrictive photo ID law. In Arizona, Republicans in the state legislature have sought to strip the elected Secretary of State’s office of authority on the basis that it’s a cost-saving measure, given the Secretary’s frequent disputes with the state’s Attorney General.
The George W Bush Presidential Center recently organised 13 presidential foundations and libraries to support an open call for civility and democratic principles. It’s a measure of the worry about the fragility of US democracy today among thoughtful people in the US whose mission is to carry forward the historical legacies of American presidents. ‘By signing this statement, we reaffirm our commitment to the principles of democracy undergirding this great nation, protecting our freedom, and respecting our fellow citizens. When united by these convictions, America is stronger as a country and an inspiration for others’, the statement said.
The question now going into 2024, with Trump as the probable Republican candidate for president, is whether the US is still that beacon of democracy Americans would want it to be. As in the past, courts and the law will play a vital role in protecting the right to vote and ensuring every vote is counted.
William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com