The dangerous constitutional theory that gives state legislatures unprecedented power over elections seems almost fantastical — it is also a uniquely potent threat to our democracy.
Let me put it this way: If the GOP stranglehold over state legislatures in key swing states is not broken in the 2022 election, then the next Democratic presidential nominee probably shouldn’t bother spending a dime in states like Arizona or Michigan in 2024. The die will already have been cast.
Donald Trump’s 2020 attempted coup gave the right wing this playbook for stealing the next presidential election. Desperate to hold onto power, they devised a constitutional theory that state legislatures can choose presidential electors any way they want, without any oversight, even after Election Day. The U.S. Supreme Court’s most conservative members signaled their support for this “plenary” power for state legislatures in presidential elections (based on the decision that gave Bush the presidency in 2000).
The Trump team likely knew that the dozens of lawsuits, the press conferences and the calls to local officials would be fruitless. But that didn’t matter. Their real focus was on state legislatures. From the outside, the Trump team’s strategy appeared flailing and erratic, but much of this chaos was intentional. The goal was always to open the door for Republican-led state legislatures to intervene and “settle” the matter by installing new electors who would deliver Trump the presidency.
Trump’s infamous call to the Georgia Secretary of State urging him to “find” enough votes to flip the state and to Georgia’s governor to halt certification were never going to change the ultimate outcome in that state. Instead, they were steps designed to create chaos and delays to justify Georgia’s Republican Legislature stepping in to nullify their state’s vote – and send invalid electors to Congress.
It was not just Georgia. The President, his chief of staff, and leading Republican members of Congress were similarly pressuring state legislative leaders in Michigan, Arizona, Pennsylvania and Wisconsin – all states that voted for Biden and have Republican-controlled legislatures.
Let me be clear: we got lucky in 2020. The idea of nullifying votes was too novel, too shocking and too poorly pitched by the president’s clownish legal team for legislative leaders to take it up. But the right wing won’t make the same mistakes again. Since 2020, as Barton Gellman wrote in The Atlantic, “With tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft.”
This has been a long time coming. For decades, conservatives have been investing in state legislative elections with a fervor and consistency that progressives failed to match. Now, they’re quietly and methodically using those investments to ensure their state legislative majorities will select the next president — no matter whom their state actually elects.
To understand where we are, compare how the Trumpists are undermining democracy to a magic trick. To draw on Christopher Nolan’s 2006 film, “The Prestige,” every magic trick has three parts: the Pledge, the Turn, and the prestige. The “Pledge” is when the magician presents the audience with something ordinary, like a deck of cards. In this case, it’s the things we took for granted before the 2020 election: voters cast ballots, the votes are counted, the winning candidate is declared the winner and the loser concedes.
Then comes the “Turn.” The magician makes that ordinary object do something unexpected, like make the deck of cards reshuffle on its own. The audience, surprised, believes the trick is done. Here, the surprise has been a major American political party contesting valid results and taking dozens of actions — like the voter suppression legislation being introduced and enacted in states across the country — to further erode confidence in the democracy. As with any good Turn,” many in the audience are shocked and amazed, but within a framework of things we are used to – like votes, counts and winners.
But in any great magic trick, the “Turn” is not actually the end of the trick. That’s the “Prestige” — when something so unanticipated and extraordinary happens that even the most seasoned observers don’t expect it. The “Prestige” of the right wing’s democracy-destroying trick, the grand finale, will be the theft of the 2024 election — and the sleight of hand will be more radical and brazen than most people would ever consider: a presidential election in which laws and results cease to matter, replaced by brute power in state legislatures and a Supreme Court that approves it.
But not all hope is lost. If Democrats make smart investments in state legislatures in 2022, the threat can be thwarted — and the legitimate winner can still win the presidency.
In Arizona, for example, Republican majorities in the House and Senate could be broken with one flipped seat. Of the 3.8 million votes cast there in 2020, control of the state House was decided by only 1,028 voters. Meanwhile, with fairer (and less gerrymandered) maps coming in Michigan and Pennsylvania this year, both legislative chambers in each state will be within striking distance. Our democracy depends on doing everything possible to get over the top.
In state capitals around the country, right-wing lawmakers are preparing to decide the 2024 presidential election. And the GOP knows that if they can maintain control of key state legislatures this November, they can capture the White House in 2024 — no matter what the voters say.
It is not an overstatement: The 2024 presidential election could effectively be decided in 2022.
Daniel Squadron is a former New York state senator, and co-founder and executive director of The States Project, which focuses on connecting the importance of state legislatures to every aspect of our lives and winning state legislative majorities. He co-wrote Chuck Schumer’s book, “Positively American: Winning Back the Middle Class Majority One Family at a Time.”