Back to Normal Isn't Good Enough for US Democracy after the 2022 Midterms

The midterm elections have raised hopes that democracy-distortion fever is breaking at last. Prominent swing state candidates who ran on election lies lost because of it. Local officials trying to block results they didn’t like were easily brought to heel. Warnings from pundits about an underground right-wing takeover of local election infrastructure proved wildly exaggerated.

In short, a world that appeared on the brink of anti-democracy hijack seems to be returning to normal.

The problem with these good tidings is that normal isn’t good enough.

Our normal is a set of democratic institutions not designed for the challenge of modern partisanship—institutions that rely on consensual norms now under siege from angry polarization, institutions not equipped to prevent self-dealing and partisan capture. Unfortunately, just protecting that normal will not ensure a healthy democracy.

That’s why we do what we do at ERN.

To learn more, visit our website and in particular this page summarizing our model legislative solutions.  

A radical theory gets a hearing at the Supreme Court

The flaws of the old normal were on full display in the Supreme Court Wednesday during oral arguments in Moore v. Harper, the case that could impose the radical Independent State Legislation Theory (ISLT) on our election system. This theory argues that state legislation about federal elections should not be subject to checks and balances from state courts and state constitutions.

The ISLT ascended from the fringe under a Court majority that reflects the problems with normal discussed above. Five members of that majority were appointed by presidents that lost the popular vote. One owes his seat to the unraveling of norms of Senate treatment of presidential nominees. While reformers need to reckon with the court majority we have, regardless of that background, it is worth keeping in sight the many good ideas in circulation for improvements at the Court, including ideas for 18-year terms that would equalize nomination opportunities across presidential administrations.

Oral arguments Wednesday suggested the Court's majority is searching for some middle ground on the ISLT, one that would limit constraints on state legislatures but not abolish them. Such a decision keeps open for the time being avenues for reform, including important opportunities for ERN. How well this middle ground approach will fare amid further legal challenge is a key question going forward.

But whether the Court fully embraces the ISLT or adopts a narrower doctrine, the case could significantly expand the power of state legislators over elections in which they have a strong partisan interest.  The profound conflict of interest at the heart of that power dynamic was never really in question during oral arguments. This too is simply taken as normal.

These challenges are huge and deeply imbedded, but democracy reform cannot ignore them. ERN's global comparative perspective and close attention to structures that create partisan conflict of interest give us a prominent role in the reform community on these issues.

Following oral arguments on Wednesday, ERN came forward with this statement urging the Court to reject the ISLT. Here's a clip:

"We believe that checks and balances are vital to a healthy, functioning democracy, and that this is especially true when it comes to the oversight of elections. State legislators, who stand to directly benefit from election results, should establish broad policy principles for elections, not micromanage their technical details. The U.S. is already far out of step with peer democracies in the degree of detailed control legislatures exert over elections, a situation that contributes to massive election litigation and increases partisan animosity. The ISL theory would make that dynamic even worse.

We believe election rules and regulations should be set by nonpartisan boards and/or nonpartisan chief election officers, and carried out by independent, professional election administrators. All states should establish independent redistricting commissions, and those already in place should be allowed to continue their work in adopting fairer district maps. And state courts should continue to play their critical role in enforcing state constitutions and holding political actors accountable. [...] The ISL theory could put all these common-sense goals and norms out of reach."

The Crucial Importance of Fixing the Electoral Count Act

Several of the ERN team were in Washington last week to hear from Senate leaders on progress of another important “better than normal” reform: the Electoral Count Reform Act (ECRA). The ECRA would fix critical flaws in our presidential election system and put a cottage industry of coup plotters out of business. The imminent inauguration of a new Republican majority in the House means passage must happen now, in the crowded and complicated lame duck session.

What makes the ECRA particularly powerful is that it addresses a key institutional misalignment that plagues our democracy. In essence, the reform takes any judgment over the results of presidential voting out of the hands of state legislatures, governors, and members of Congress — who all have clear personal and party interests in the outcome of those elections — and shifts that judgment to where it belongs, in courts of law. This kind of realignment to prevent partisan insider conflict of interest is exactly what “better than normal” should look like.

At ERN, we have been advocating for change in the Electoral Count Act since early in 2020, long before its flaws were fully exposed by the events of January 6. See this webpage for our opeds on this topic and on electoral college reform. And for those looking for these important details, a good comparison of the reform bills passed by the House and Senate is here.

We close with an appeal. Paradigm shifts don’t come easily; helping create the better-than-normal is a huge lift. We need your help to be in more states, to build more coalition support, to bring more citizens on board this mission. Please consider a contribution to ERN’s critically important work before year end.

Thank you, we are so grateful for your support.

Photo by Arnaud Jaegers on Unsplash