Democracy Crisis in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Elections
Before 2020, the suggestion that America’s elections might be systematically and intentionally subverted would have been dismissed as a fever dream. Today, in the aftermath of a concerted effort to overturn the results of the 2020 presidential election—culminating in a deadly attack on the U.S. Capitol—the idea is no longer inconceivable. It is real. The future of democracy in America is on the line. This Report highlights one way in which our democratic system is under assault. We focus on efforts by state legislatures to change laws in ways that would significantly undermine how this country runs its elections, opening the door to partisan interference or manipulation of the results or even outright rejection of the will of the voters. Although it is not unusual for states to adopt or make changes to election law each cycle, the measures that we describe in this Report represent a dangerous trend: efforts to increase the ability of partisan actors to subvert the will of the voters.
In the 21 months since the 2020 election, we have seen a breakdown in the longstanding consensus that election administration belongs in the hands of professional, dispassionate experts, and that naked political interference in vote counting is anathema to a functioning democracy. Over the course of 2021 and into 2022, state legislatures have embarked on a sweeping campaign to propose, consider, and, in some cases, enact measures that increase the risk of election subversion—that is, the risk that an election’s declared outcome does not reflect the choice of the voters.
Since the release of our May report, the landscape has only darkened. In this update, we describe three evolving trends—each of them a distinct threat, but connected in the danger they pose to the future of free and fair elections. As we explain in Part I, the number of bills that heighten the risk of election subversion has increased.3 In Part II, we detail a gathering storm cloud as the Supreme Court prepares to consider a case that could rewrite constitutional elections doctrine with an extreme legal theory, upend decades of election law, and accelerate election subversion efforts. Finally, in Part III, we discuss how the insider threat trend—misconduct by officials in trusted election administration roles—has sharpened. With an election less than three months away, it is imperative that these threats be acknowledged and mitigated.
One year ago, we published A Democracy Crisis in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Election Administration. We warned that state legislatures were considering a range of bills that would increase the risk of election subversion—that is, the risk that the purported outcome of the election does not reflect the choice of the voters. State by state, legislatures had moved to seize power from professional, non-partisan election administrators and to needlessly expose the running of elections to partisan influence and disruption. As we explained in our initial Report, this trend increases the risk of a crisis in which the outcome of an election could be decided contrary to the will of the people.
Since our first Report, this effort by state legislatures has not receded. In fact, it has accelerated. This year alone, lawmakers have introduced scores of new bills that increase the likelihood of election subversion, whether directly or indirectly. In some cases, the potential subversion is quite direct—for example, bills that give the legislature the power to choose a victor contrary to the voters’ will. In others, the impact is less direct but still dangerous. Some bills would introduce dysfunction and chaos into the election system and could lead to delay, uncertainty, and confusion, all of which could provide cover for subversion.
In our first report, A Democracy Crisis in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Election Administration, released in April of this year, we identified 148 bills of concern in 36 states. At that time, when the full scope of the trend was still unknown, only three had been enacted into law in three states. As of December 15, 2021, there have been at least 262 bills introduced in 41 states that would interfere with election administration — and 32 of these bills have become law across 17 states.
The States United Democracy Center, Protect Democracy, and Law Forward released an update to their report, Democracy Crisis in the Making, which analyzed the nationwide trend of partisan state legislatures trying to seize control over election administration away from trusted expert elections officials. As of early June, there have been at least 216 bills introduced in 41 states that would interfere with election administration. The update spotlights two of the most alarming trends on the forefront right now in Arizona and Texas: criminalization of election administration and legislature-driven partisan reviews of settled elections.
In this April report, the States United Democracy Center, Protect Democracy, and Law Forward put a spotlight on the dangerous trend within the larger voter suppression landscape: many state legislatures are pursuing a strategy to politicize, criminalize, and interfere in election administration. This course of action threatens the foundations of fair, professional, and non-partisan elections.