On May 19, 2022, the States United Democracy Center, Protect Democracy, and Law Forward released the second volume of their report, A Democracy Crisis in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Elections, which analyzes the nationwide trend of partisan state legislatures considering laws that increase the risk of election subversion. Since the publication of the first report in April 2021 which identified the introduction of 148 election subversion bills, the legislative trend has only accelerated: as of April 8, 2022, legislatures in 33 states have introduced 229 bills—175 introduced in this calendar year alone and 54 rolled over from the last calendar year. In total, 50 election subversion bills have been enacted or adopted (32 last year and 18 thus far this year).
Based on analysis in the Report, the New York Times published a comprehensive examination exposing the extent to which state legislators have used their power to discredit, delay, or try to overturn the results of the 2020 presidential election. The Times’s piece helps uncover the extent to which the lies about former president Donald Trump’s election defeat have taken hold in state capitals around the country.
The legislation described in the Report would give hyperpartisan actors more control over election administration, increase the risk of chaos and delay in our election system, open the door for specious claims of fraud or irregularities that could serve as a pretext for efforts to overturn an election, and even directly empower state legislatures to ignore the will of the voters. While it’s within the legal authority of state legislatures to create the rules that govern elections before votes are cast, the subversive legislation identified in the Report opens the door to manipulating the results of elections after the fact.
Since this effort motivated by false claims about the 2020 election began after the January 6 insurrection, the subversion threat has evolved, with election deniers and anti-democracy officials coming up with more sophisticated ways to interfere with elections. While some proposals would give the legislature direct control over election results, many others increase the risk of subversion by more indirect means. Thus far, these bills have been more likely to become law. Examples of such legislation include bills creating unworkable burdens for election administration, imposing disproportionate criminal penalties for routine election activity, withholding funding to run elections properly, mandatory hand counts, codifying unprofessional partisan so-called “audits,” and the creation of special election task forces.
To view a PDF of the report, click here.
“This report should sound an alarm for anyone who cares about free and fair elections,” said Victoria Bassetti, Senior Advisor, States United Democracy Center. “It shows that state legislatures are becoming bolder and more creative in their attempts to interfere with the trusted public servants who administer our elections. These bills are responses to a crisis that doesn’t exist. We know the 2020 election was free, fair, and accurate.”
“This fight is about whether voters have a right to have their ballots counted. It’s not a typical Democrats versus Republicans issue, and we need to stop treating it as one,” said Rachel Homer, Counsel with Protect Democracy. “This fundamental shift toward authoritarianism represents an all-hands-on-deck moment for all Americans that care about our democracy and free and fair elections.”
“In America, voters decide elections. This is at the core of our democracy, but there is a coordinated right-wing effort threatening that principle,” said Nicole Safar, Executive Director of Law Forward. “Their playbook is simple: change the rules, change the players, so they can change the outcome. For example, with state legislatures like Wisconsin’s there is often one person – the governor and his veto pen – standing between total election subversion and our democracy. What is happening in Wisconsin and across the country demonstrates just how tenuous our election systems are today.”