Denialism and voting rights in the US Midterms

By Adrian Ang U-Jin
Coordinator of the United States Programme at the S Rajaratnam School of International Studies (RSIS), Nanyang Technological University

Democrats faced strong headwinds going into the US midterm elections in 2022. Historically, the president’s party usually does poorly in midterm elections – especially in their first midterm.

President Joe Biden’s two Democratic predecessors – Bill Clinton and Barack Obama – oversaw losses of 54 seats in 1994 and 63 seats in 2010 along with control of the House of Representatives.

Biden was labouring with approval ratings in the low 40s, inflation was running at four decade highs, two-thirds of voters were unhappy at the direction of the country, worried about crime, and the failure to secure the country’s southern border.

Nonetheless, Democrats defied predictions of a GOP “wave” to retain control of the Senate and falling just shy of retaining the House.

Democracy on the ballot

Many state legislatures passed laws that restricted access to the ballot box after the 2020 election on the basis of former-President Donald Trump’s “Big Lie” – the patently false assertion that the 2020 election was stolen.

The non-partisan Brennan Center for Justice reported that since 2021 “lawmakers have passed at least 42 restrictive voting laws in 21 states. Among those laws, 33 contain at least one restrictive provision that is in effect for the midterms in 20 states.”

Most of those 20 states are “red” or Republican-voting states.

In this election cycle Trump endorsed a slate of candidates – at both the state and national level – who embraced his Big Lie. In the run-up to Election Day, President Biden urged voters to “stand up for democracy” and reject election denialism, warning that voting for election deniers was “the path to chaos in America. It’s unprecedented. It’s unlawful. And it is un-American.”

Stumping for Democratic candidates in Pennsylvania, Obama warned that “Democracy itself is on the ballot. The stakes are high.”

Stickers with American flags read 'I voted
Pic credit: Unsplash/Element5 Digital

Denying the deniers

In key battleground states, voters rejected candidates who supported Trump’s Big Lie.

In Michigan, Tudor Dixon, the Republican gubernatorial candidate who promoted Trump’s attempts to overturn the 2020 election results lost to incumbent Democratic Governor Gretchen Wilmer by more than 10 points.

Incumbent Democratic secretary of state Jocelyn Benson, who faced death threats after overseeing the 2020 election, defeated the far-right election-denying GOP candidate Kristina Karamo. In Arizona’s governor’s race Republican Kari Lake, a Trump favourite and vociferous promoter of his Big Lie, is projected to lose to Katie Hobbs, the secretary of state.

Also in Arizona, the Republican candidate for secretary of state Mark Finchem, a prominent election denier who was deeply involved with Trump’s efforts to overturn the election results, lost to Democrat Adrian Fontes.

In the Pennsylvania gubernatorial race, prominent denier Doug Mastriano was soundly beaten by Democrat Josh Shapiro, the state attorney general. In Nevada, election denier Jim Marchant lost Nevada’s secretary of state race to Democrat Cisco Aguilar.

However, of the more than 120 Republican Members of Congress who objected to certifying the 2020 Electoral College vote results and who were seeking re-election, the overwhelming majority are projected to win their races.

CBS News estimates that at least 60% of GOP candidates who “raised unfounded doubts about the validity or integrity of the 2020 election results” (185 of 308) are expected to win their races.

However, a trio of Trump’s prominent Senate picks – Mehmet Oz in Pennsylvania, Adam Laxalt in Nevada, and Donald Bolduc in New Hampshire (Herschel Walker is going into a run-off election in December against incumbent Sen. Raphael Warnock) – were defeated and cost the Republicans control of the Senate.

Trump 2.0?

Donald Trump smiles while standing at a lectern
In key battleground states, voters rejected candidates who supported Trump’s Big Lie. Pic credit: Gage Skidmore/Flickr

The midterm results were not good for Trump but that has not stopped the twice-impeached ex-president from announcing his 2024 White House bid, seeking to be the first president since Grover Cleveland to serve two non-consecutive terms (1885-1889, 1893-1897).

Trump is hoping that his first-mover advantage will deter potential primary rivals, especially Florida Governor Ron DeSantis who emerged as one of the leading contenders for 2024 by beating former-governor Charlie Crist by almost 20 points and turning the Sunshine State from a battleground to a deep red state.

Trump’s announcement means that the Big Lie is not disappearing anytime soon and will continue to be a plague on American democracy.

The role of the courts in the midterms

Exit polls indicate that Democratic voters were highly motivated by the U.S. Supreme Court’s decision in Dobbs v. Jackson to overturn the Roe v. Wade precedent that protected the right to abortion.

Voters concerned with reproductive rights turned out for Democrats and helped blunt an expected GOP wave, with abortion came in a close second – just behind inflation – as voters’ most important issue.

For decades, the GOP benefited from conservative voters’ anger over Roe v. Wade, but in this election cycle the tables appear to have flipped and liberals are now demonstrating hostility toward the Supreme Court to the advantage of Democrats.

Whether this trend can be sustained remains to be seen, but the exit polls also indicate that the Supreme Court’s Bruen decision to expand the right to bear arms outside the home in June is becoming another motivating issue for Democrats.

Gerrymandering and the Midterms

If the Republicans end up narrowly winning control of the House of Representatives, Democrats’ ire will surely be trained on the Supreme Court. In January 2022, a federal district court found the GOP-drawn congressional map in Alabama to violate the Voting Rights Act (VRA) in diluting the votes of Black voters.

Alabama appealed to the Supreme Court to halt the decision, and by a 5-4 vote – without full briefing and oral argument or even issuing any analysis or explanation – the Court issued a stay, thereby ensuring that Alabama’s gerrymandered map remained in place for the midterm elections.

The Alabama case (Merrill v. Milligan) had knock-on effects as federal judges in Georgia, Texas , and South Carolina, declined to block similar racial gerrymanders. In June, the Supreme Court following its Milligan precedent reinstated Louisiana’s racial gerrymander after a lower court had initially blocked it.

By a conservative estimate, the Court’s reluctance to enforce the VRA in the face of racial gerrymandering will have cost the Democrats at least seven seats – likely a sufficient margin for the party to have retained control of the House.

The Court’s reluctance to enforce the VRA should not be surprising, however, given the Roberts Court’s longstanding hostility. In its 2013 Shelby County v. Holderdecision, the Court gutted the “preclearance” section of the VRA thereby freeing southern states with histories of discrimination against minority voters to change their voting laws without federal approval.

Similarly, the Court’s 2019 ruling in Rucho v. Common Cause that partisan gerrymandering is a political question not subject to review by federal courts should have provided another clue as to the Court’s inclination.

Voting rights in the States

In December, the Supreme Court will hear the Moore v. Harper case that involves a gerrymandered North Carolina congressional district map rejected by the state’s supreme court for violating several rights guaranteed by the state constitution but defended by the state legislature based on the so-called “independent state legislature” theory.

The independent state legislature theory – considered by most legal scholars to be a radical, fringe idea – argues that the US Constitution grants state legislatures the sole and near-absolute authority to regulate federal elections.

The Constitution’s “Elections Clause” (Article I, Section 4, Clause 1) empowers state legislatures to prescribe the “times, places, and manner of holding elections” for House of Representatives and the Senate, subject to Congress making or altering such state regulations (except as to the place of choosing Senators).

The traditional judicial understanding of “legislature” is that it encompasses a state’s general legislative processes, including the governor’s veto and citizen referenda. However, proponents of the independent state legislature theory reject this traditional interpretation.

The independent state legislature theory, if adopted, means that state legislatures can adopt any electoral rules – including extreme partisan gerrymandering or voter suppression – and citizens will have recourse to neither judicial nor political remedies as state legislators would not be subject to checks and balances from state courts or the governor’s veto.

The Supreme Court has rejected the principal tenets of the independent state legislature theory as recently as 2015 (Arizona State Legislature v. Arizona Independent Redistricting Commission) and 2019 (Rucho v. Common Cause).

So, while four conservative justices – Alito, Thomas, Gorsuch, and Kavanaugh – voted to hear Moore, it does not mean that they have either the predisposition or the votes to overturn precedent. Nonetheless, in a post-Dobbs political environment it should not be taken for granted that the conservative majority on the Court is wedded to established precedent.

Banner image: The US Capitol building is seen in Washington DC.  Source: Rawpixel


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