By Nathaniel Rachman
On Sept. 11, 2019, Democrats serving in the North Carolina House of Representatives were told that no votes would be held that morning. One legislator attended a memorial for the anniversary of 9/11; others stayed in their districts.
Republican lawmakers, however, had different plans: They called a surprise vote to override Democratic Gov. Roy Cooper’s veto of the state budget. Cooper had rejected the budget because it didn’t include Medicaid expansion and, in his view, it underpaid teachers. With only nine Democrats on the floor to 55 Republicans, the veto override passed easily. Democrats who tried to speak against the override had their microphones cut off.
Daniel Ziblatt and Steven Levitsky, political scientists at Harvard, have written about “constitutional hardball”: a willful disregard of norms and an inability to accept defeat that can lead democracies to their demise. The North Carolina Republicans’ trick was precisely that.
Beneath these more overt power grabs lies a series of long-term tactics undermining American democracy. From politicizing state commissions to packing state-level courts, these ploys often go relatively unnoticed. But they are at the forefront of America’s democratic malaise, as politicians from both parties grow increasingly willing to sacrifice process and norms in favor of policy outcomes and electoral victories.
If we want to combat the erosion of American democracy, we need to understand all the dangers it faces. Here are five of the most pernicious threats.
1. Stripping incoming governors of power
Republicans have lost some close gubernatorial races in recent years. One recourse they’ve found is to strip incoming Democratic governors of power before they enter office.
When Tony Evers, a Democrat, defeated the Republican governor of Wisconsin, Scott Walker, in November 2018, the state Republican Party moved fast. Before Walker left office, he signed 141 pages of legislation that had been passed during a lame-duck session with just one day of hearings.
The new bills gave the GOP-controlled legislature more control over powerful state commissions. They also limited Evers’ authority to change the work requirements for Medicaid and food stamp recipients and stripped the state’s incoming attorney general, also a Democrat, of the power to withdraw the state from litigation against the Affordable Care Act.
Little attempt was made to dissemble the bill’s intention. As the Republican speaker of the State Assembly, Robin Vos, explained, “We are going to have a very liberal governor who is going to enact policies that are in direct contrast to what many of us believe in.”
The tactic is not uncommon. Two years earlier, North Carolina Republicans had executed a similar preemptive power grab. And just days after the Wisconsin Republicans went ahead with their plan, their Michigan counterparts tried to pass a similar set of bills, which only partially succeeded after Gov. Rick Snyder, a moderate Republican, vetoed many of them.
2. Court packing
After seeing three conservative-leaning justices confirmed to the Supreme Court during the Trump presidency, many Democrats now openly support packing, or expanding, the nation’s highest court. Rep. Jerrold Nadler of New York, the chair of the House Judiciary Committee, and Sen. Ed Markey of Massachusetts recently introduced a bill to expand the Supreme Court to 13 seats from nine, although their efforts have so far failed.
Because of its partisan overtones, court packing is a serious threat to maintaining public confidence in the judiciary—one reason Justice Stephen Breyer, a liberal appointed by President Bill Clinton, spoke against the practice.
But court packing is not an innovation. Franklin D. Roosevelt attempted it in 1937 to shape the ideological balance of the Supreme Court so it would stop striking down his New Deal legislation. He failed to expand the court, but he succeeded in scaring the conservative justices away from challenging the more controversial aspects of the New Deal.
And it has been a common tactic on the state level for years. During the past decade, at least 20 bills—most of them proposed by Republicans—have been introduced to attempt to change the size of state supreme courts. In 2016, with no Democratic support and against the opposition of his own chief justice, Arizona Gov. Doug Ducey added two conservative justices to bring the bench to seven. That same year, Georgia Republicans also added two justices, shifting the state’s high court from a 4-3 liberal split to a 5-4 conservative one.
3. Circumventing ballot initiatives
Over half of all U.S. states allow citizens to approve or veto legislation by popular vote through ballot initiatives. But when the voice of the electorate proves awkward, legislators aren’t averse to finding workarounds. You don’t have to be a staunch supporter of direct democracy to recognize the sinister intent behind such measures.
In 2018, almost two-thirds of Florida voters approved an amendment to the state constitution that would allow convicted felons to vote after they had completed their sentences, except in cases of murder or sexual crimes. In one stroke, 1.4 million Floridians regained their right to vote.
In July 2019, however, Florida Republicans, alarmed by the initiative’s electoral implications, passed a law requiring ex-felons to pay all court fines and outstanding fees before their right to vote would be restored. The result was the disenfranchisement, again, of 774,000 Floridians.
Some lawmakers are going further by making it more difficult to bring ballot initiatives in the first place. After Idaho’s voters rejected education reform in a 2013 ballot initiative, the state’s legislators instituted tougher rules for bringing such initiatives. But in 2018, after years of Republican inaction, Idahoans still managed to approve a ballot initiative to expand Medicare with 61% of the vote. Now, a new law has added obstacles to the process: Before an initiative appears on the ballot, it will now require signatures from all 35 Idaho districts, rather than the current threshold of 18.
4. Politicizing election procedures
When Georgia’s secretary of state, Brad Raffensperger, rebuffed then-President Donald Trump’s demands to change the state’s 2020 election results, he took his place among the many who kept American democracy afloat last November.
But a new voting law, passed by the Georgia legislature after the 2020 elections, shifts power over the State Election Board from the secretary of state to the Republican-controlled legislature. The law creates a new, nominally non-partisan chair position to be filled by the state senate, and strips the secretary of state of a vote.
Less overt attempts to politicize the voting process are being repeated elsewhere. Republicans from at least a dozen other states have introduced bills to limit the power of election officials or transfer it to lawmakers. Bills put forward in Texas and Arizona would grant their legislatures new power over various election procedures, from the maintenance of voter rolls to the approval of state election manuals.
It’s a worrying sign of how those who stood against Trump’s falsehoods about the 2020 election, like Raffensperger, are being disempowered. These power shifts are what should concern us most about the new voting laws, not the provisions about absentee ballots and providing food to voters, which have minimal effects on voter turnout.
Gerrymandering, or manipulating the boundaries of congressional districts to favor a party’s candidates, is perhaps the most infamous trick in the book—and it is used by both parties. Though congressional Democrats have introduced federal legislation to ban the practice, some of them have won elections because of it: Maryland, a deep blue state, is perhaps the most aggressively gerrymandered state in the country.
But in recent years, Republicans have benefited more from gerrymandering than Democrats. This is largely due to their state-level success in the 2010 midterms, which gave them control over the district-drawing process in many states. A study by the Center for American Progress, a progressive think tank, found that in 2012, 2014, and 2016, an average of 59 House seats was swung unfairly by gerrymandering: 20 to Democrats and 39 to Republicans.
State courts have tried to push back, with some effect. When North Carolina’s supreme court struck down the state’s district maps in 2019, the ruling noted the GOP’s attempt at “sophisticated partisan sorting,” which amounted to “representatives … choosing voters.” In the state’s 2018 U.S. House elections, the effects of the gerrymandering were staggering: Democrats won 48% of the statewide vote to Republicans’ 50%, but Democrats came away with only three seats to the Republicans’ nine.
Some legislators no longer even try to disguise their rationale. “I think electing Republicans is better than electing Democrats,” state Rep. David Lewis, a Republican and chairman of North Carolina’s redistricting committee, said in 2016. “So I drew this map in a way to help foster what I think is better for the country.”
Democrats are planning to fight fire with fire. As the 2020 census figures come in and the 2022 midterm elections loom, party officials are reportedly looking at the benefits of gerrymandering blue states like New York and Illinois to preserve their majority in the House.
There is a pattern to these five tactics: They are exclusively or disproportionately used by Republicans. As a party, it has spearheaded the decline of American democracy. But Democrats are not immune from employing similar tactics.
One of the greatest dangers of “constitutional hardball” is that it creates a vicious cycle that engulfs all political actors. When playing by these rules, victory means more than just the opportunity to govern: It’s also a chance to lock in your advantages by rigging the institutions of power. Every tactic here aims to achieve that dominance. As America’s divisions continue to fester, and Republicans and Democrats grow more and more desperate to preserve power, it’s democracy that will suffer first.
Nathaniel Rachman is a recent history graduate from the University of Oxford, where he edited The Oxford Student.