Public confidence in our elections often comes down to one thing: trust in nonpartisan election administrators who are responsible for carrying out elections fairly, efficiently and transparently. However, a new study from the States United Democracy Center, Law Forward and Protect Democracy shines a light on an impending threat to the future of election administration: Over 145 bills proposed by Republican state legislatures would reassign various powers of election officials and the executive branch to highly partisan legislatures. This “legislative seizure” of election powers could have sweeping consequences — including allowing elected lawmakers to overturn the will of voters and determine their own preferred winners of elections.
In today’s Data Dive, we’ll walk through the findings of the States United Democracy Center’s report, “A Democracy Crisis in the Making.” The report identifies four key types of currently pending “legislative seizure” bills and argues the ramifications that each could have on the future of fair, nonpartisan election administration.
Here are the key takeaways:
1. Republican legislatures want to take over the election responsibilities of the executive.
The balance of powers is a key protection that ensures voters are protected from partisan interference in elections. Traditionally, governors control more of the details of elections, such as appointing election officials, while legislatures play a broader role in determining the overall structures of the process. However, after Democrats won governorships in North Carolina and Wisconsin, Republican legislatures have been angling to strip the executive of its powers in overseeing elections. These efforts include diluting or reassigning the duties of election administration from the executive to state legislatures, giving the highly partisan bodies the ability to appoint their preferred partisan officials and interfering with the election outcome before votes are even cast.
In South Carolina, Senate Bill 499 would require the governor’s appointments to the state election commission be confirmed by the state Senate. Tennessee’s House Bill 1560 would create a new legislature-appointed board that would take over the election administration responsibilities of the Tennessee secretary of state. These types of bills could allow legislators to fire or refuse to seat election officials who won’t go along with their false election fraud claims — in 2020, governors and independent election officials were key bulwarks against legislative efforts to overturn the election results.
2. Local control preserves competence and confidence — and it’s under siege.
Legislatures want to condense power from sources at all levels of the election process — from the governor to local officials. Nonpartisan, local election authorities are key to the voting process: they have expert, detailed knowledge of the jurisdictions in which they facilitate elections and they ensure that the thousands of yearly elections held in a country as large as the United States run smoothly. Now, Republican state legislatures want to “micromanage,” or insert themselves into local administration processes in an attempt to further their political goals — but these bodies are not structurally capable of implementing the day-to-day requirements of election minutiae as they lack both the staff capacity and expertise that local election administrators have.
Again, this effort contributes to the partisan politicization of election administration: In Arizona, state lawmakers proposed two bills (House Bill 2722 and House Bill 2799) that would transfer control over details like voter roll maintenance, equipment checks and vote counting to the Legislature in an attempt to overturn the election results through an unconstitutional and disconcerting audit of Maricopa County. If they’re successful, we can expect to see similar efforts from Republican legislatures across the country.
3. Legislatures want to add new criminal penalties to election administration.
Legislatures are increasingly embracing the establishment of criminal and civil penalties as protections against election administration methods they disagree with. While cases of voter or administrative election fraud are almost non-existent, Republicans have authored a host of purposefully vague bills that could be used to file lengthy lawsuits against administrators and voters in an effort to clog up the election process and establish a climate of fear among election officials. Litigation is not free, and an increasing number of suits brought against election officials can incur costly fees and intimidate election officials out of doing their jobs. A new bill (Senate Bill 604) in Arkansas would automatically refer any allegations of election law violations to the state police, who are required to open an investigation of the complaint before assessing if it has any merit. Republicans can leverage these new laws to bring criminal complaints against officials they disagree with, harass and intimidate election officials, overburden the state court system with spurious allegations and more.
4. Legislatures want the final say over election results.
The most concerning bills would allow for what would amount to an electoral coup by the legislature. These laws aim to grant legislatures control over election results, allowing them to “hijack the process for certifying election results and choose a winner that does not correspond with the popular vote.” Inspired by failed attempts in Georgia and Arizona to force governors to re-certify the election results to their liking, elected officials in Arizona, Missouri and Nevada are all currently considering legislation in this category. Currently, the governor is allowed to deny these requests, but pending legislation would allow legislators to convene their own special sessions without gubernatorial cooperation and would reassign certification control from the state supreme courts. These bills open up the opportunity for a major democratic crisis if partisan actors leverage these sessions to undermine the legitimate outcome of our elections.
If these types of proposals pass, the future of our election administration will fall into the hands of highly partisan state legislatures instead of the local election professionals who keep the process running smoothly and fairly. It’s a democratic crisis in the making and one that Republicans are eager to hurry along.