Recent polling makes clear that the future of our democracy is Americans’ top concern. While Democrats’ federal trifecta passed landmark legislation like the Inflation Reduction Act, Congress has utterly failed to pass any legislation to strengthen voting rights or election administration. Without a federal law, states will continue to be the battleground where our democracy will either stand or fall.
Unfortunately, progressives have long overinvested in federal strategies, and severely underinvested in building state power. Conservatives, by contrast, have balanced their strategic energy and investments across levels of government. At the state level, Republicans have spent decades gaining control of state legislatures and rigging the system to maintain that control. Democrats are late in understanding state power, and must now work fast.
Time is short. Whoever is elected to state legislatures this year will be in office during the critical post-2024 election period. Republicans have shown us their plan. They are pursuing voter suppression and election subversion tactics now in order to engineer favorable election outcomes in 2022 and 2024. At Sister District, we are working hard to stop them by winning power in our state legislatures.
The Old GOP Playbook: Voter Suppression
Republicans’ agenda — including dismantling our democracy — is deeply unpopular. So to stay in power, they continue to use a page from their playbook: voter suppression, targeted at communities unlikely to support GOP policies and historically kept from political power.
A massive wave of voter suppression bills has recently swept through state legislatures, targeting disadvantaged communities and disproportionately impacting voters of color. For instance, Georgia’s Senate Bill 202 imposed stricter ID requirements on mail-in voting, shortened the window to apply for absentee ballots, limited the availability of ballot drop boxes and even went so far as to criminalize passing out food and water to voters waiting in line. Florida’s Senate Bill 90 also added stricter voter ID requirements for voters requesting absentee ballots, reversing Florida’s long history of being one of the most vote-by-mail friendly states. Texas’ Senate Bill 1 bans 24-hour and drive-thru voting and creates new rules and penalties for voters with disabilities.
We’re now seeing the negative impact of these laws during the 2022 primaries, and their intended, disproportionate impact on marginalized groups. Despite making up one-third of the electorate, Black voters in Georgia not only accounted for half of all late primary ballot application rejections, but also represented more than half of the registered voters in the state who lacked the types of identification now required under S.B. 202. New drop box restrictions in Florida have imposed greater burdens on Black voters. And Texas’ new law disproportionately impacts Latino voters, adding barriers to language assistance and establishing regular citizenship checks.
A New Trend: Election Subversion
Republicans also started a new trend during the 2021 state legislative session: introducing election subversion bills. Election subversion legislation consists of laws and rules that politicize, criminalize and/or interfere with election administration. Once signed into law, Republicans can then use these rules to engineer election outcomes.
Following the “Big Lie” that former President Donald Trump won the 2020 presidential election, legislation brought to the floor in state houses began to sow seeds of doubt about the validity of President Joe Biden’s victory. Fueled by the election denialism rhetoric of GOP state legislators, election subversion legislation injects partisanship into state and local election administration in the name of “election integrity.”
These bills have spread like wildfire. As of the end of July, there have been at least 244 election subversion bills introduced across 33 states — 24 of which have become law. This includes hundreds of bills that create partisan election reviews, impose criminal penalties on election officials, allow legislatures to overturn election results and seize local power over election responsibilities. During this past legislative session, Georgia and Florida enacted laws to create new entities dedicated to pursuing election crimes. Georgia went even further, enacting laws that create risk of partisan interference of election results and handing partisan county commissioners more power over election administration.
Beware of the Independent State Legislature Theory
These election subversion laws might seem unconstitutional. Unfortunately, the conservative supermajority on the U.S. Supreme Court is no friend to voting rights. This fall, the Court will hear Moore v. Harper, a case involving the independent state legislature (ISL) theory that could hand partisan state legislatures unfettered control over federal elections. Four justices have indicated some level of approval for this theory, which legal experts consider preposterous. Nonetheless, those experts don’t have any of the five votes that matter.
The Flipside: Expanding Voting Access and Strengthening Election Administration
At the same time, some state legislatures are expanding the right to vote and strengthening election security. In 2021, New York, Washington and Connecticut restored voting rights to people with past convictions. New Jersey, Massachusetts and Maryland enacted legislation to expand early voting. And Oregon and California are taking steps to protect election workers from increased harassment.
Fight Down-Ballot: State Control Is Not Wildly Out of Reach
Protecting our right to vote and our democracy itself depends on flipping just a handful of pivotal seats in state legislatures. Sister District’s recent “Votes to majority” report demonstrates that state legislative chambers are not wildly out of reach for Democrats. In 2020 and 2021, tiny margins kept us from control in battleground state houses. In the Arizona House, less than 0.1% of the total votes cast in 2020 kept Democratic candidates from flipping the chamber. And only 733 votes kept Democrats from maintaining control of the Virginia House last year. The smallest races can have the largest impacts — especially with the future of our democracy on the line. Democrats have momentum right now, and 2022 is a critical opportunity to build power in our state legislatures — but only if we fight hard all the way down the ballot.
Gaby Goldstein is an attorney and political strategist who focuses on the growing importance of state legislatures. She is the co-founder of Sister District, whose mission is to build progressive power in state legislatures, and is a co-moderator of the State Power Series, a virtual event series co-sponsored by Vote Save America/Crooked Media and Sister District.
Bela Tringali is the program manager at Sister District who focuses on building and strengthening programs to empower progressive legislators and build narratives around progressive state power. She formerly served as a research and program associate at the Brennan Center for Justice.