🎙️ Voice is AI-generated. Inconsistencies may occur.
Face it, no one yet knows what will happen in today's midterm elections. While forecasters expect a reasonably good night for Republicans, they also caution thata polling error in either direction could lead to unexpected Democratic wins in congressional and gubernatorial races or a towering red wave that could wash away even Democrats whose jobs were thought to be safe. But if it's a Republican flood and they ring up a series of gubernatorial wins and continue dominance in legislatures in states like Arizona, Wisconsin, and Michigan, what exactly can we expect from these Republicans?
In recent days President Biden has channeled the increasingly dire warnings from scholars about the GOP threat to democracy. Nowhere is that danger more apparent than at the state level, where election deniers are poised to capture governor and secretary of state positions in pivotal purple states. Yet the president and leading Democrats have shied away from describing exactly what it is that they think will happen if such people gain power. Well, here goes:
Buoyed by the Supreme Court taking a case concerning the so-called Independent State Legislature theory, Republicans will likely press the constitutional envelope on how their states choose representatives to the Electoral College. Remember that former President Donald Trump's post-2020 coup plot failed not because it was impossible under the Constitution but because state legislatures were bound by their existing electoral laws and procedures. No court, not even the radicalized, 6-3 conservative Supreme Court, would have endorsed an attempt to rewrite or circumvent those laws post-hoc.
Most people don't realize how many undemocratic features are embedded, untouched by amendments, in the Constitution itself. One of them is the way that states are granted plenary authority to decide how to choose their electors. Article II, Section 1 of our founding document is quite clear: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."
For more than 150 years, legislatures have agreed to choose those electors via a direct election for the president in each state. But there is nothing other than shame and opprobrium stopping Republicans from either reverting to past practice of having the state legislature pick without an election or designing a patently manipulative scheme that preserves the facade of popular democracy while all but ensuring a Republican win.
This should sound crazy, but it isn't. Earlier this year, Texas Republicans endorsed eliminating the direct election of statewide officials as well as repealing the 17th Amendment, which requires the direct election of U.S. Senators, rather than having them chosen by state legislatures as in the Constitution's original text. The gradual unraveling of the GOP's commitment to democracy has reached the point where it is almost certain that one or more GOP-controlled state legislatures will try something truly disruptive to the public's understanding of democracy.
The guess here is that it will be Wisconsin, the seedbed of Republican radicalism for more than a decade, and the proving ground of the party's commitment to single party rule through control of the redistricting process and the state Supreme Court. If the Supreme Court endorses that idea that state legislatures can set election law without interference from the governor or state courts, it won't matter whether Democratic incumbent Tony Evers wins re-election tonight or if he is bested by Big Lie enthusiast Tim Michels.
Badger State Republicans could simply eliminate the state's presidential elections altogether or make them purely advisory to the state legislature. That this is well within their constitutional prerogative doesn't make it any less insane or inflammatory. More likely, they will choose among a menu of other election-rigging schemes, like splitting the state's electors between candidates based on who wins each Congressional district. This is a plan long threatened by state Republicans in places like Pennsylvania, and a red wave would ensure that these kinds of people are in charge of several purple states whose electors will determine the outcome of the 2024 election.
Instead of splitting them, Wisconsin Republicans could also award all the state's 10 electors to whoever wins the most congressional districts. The Manichean beauty of these plots is that the permanently gerrymandered state legislature drew district lines that virtually guarantee a 6-2 Republican House delegation unless Democrats win a national election by 15 points or more.
Awarding electors this way won't strike most ordinary people as preposterous—after all, Wisconsinites have accustomed themselves to the state's profoundly undemocratic politics already, with the state legislature organized into such outrageously gerrymandered districts that Republicans won near-supermajorities in both chambers with just over 53 percent of the popular vote in 2020. And Nebraska and Maine already split their electors based on the winner of Congressional districts.
There is no obvious recourse in the Constitution to avert such an outcome, which would represent the gravest crisis of American democracy since the Civil War. And so, we can only hope that voters see fit tonight to deprive Republicans of the opportunity to do this by electing or re-electing swing-state Democratic governors, and that the Supreme Court rules against the preposterous idea that state legislatures can change their election laws by fiat. Otherwise, we're in even more trouble than we think.
David Faris is an Associate Professor of Political Science at Roosevelt University and the author of It's Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.
The views expressed in this article are the writer's own.
