In the days and weeks after Texas’ controversial S.B. 8—the bounty scheme that has effectively halted providers from performing constitutionally protected abortions in the state—went into effect, a raft of articles sprang up suggesting the law would surely backfire. David Frum warned in the Atlantic that Texas Republicans had widely miscalculated constituents’ desires and that “anti-abortion-rights politicians are about to feel the shock of their political lives.” Texas, we’re told, is going to galvanize an electoral backlash; S.B. 8 may trigger a “fight” instead of “flight” response in Texans. The Wall Street Journal editorialized that the law was a huge misfire, while Olga Khazan traveled to Texas to report, persuasively, that even Texans who strongly oppose abortion hate this particular law. Opinion polling similarly suggests that passing a law so patently outside any mainstream view—56 percent of pro-lifers in Texas believe in exceptions for rape and incest and maternal life—will provoke an electoral backlash.
Here is where these observers go astray. As Frum correctly observes, the Republican-controlled Texas Legislature is well aware that its actions are not popular. That’s why it is already passing election suppression measures to hedge against the possibility that some voters will be put off by radical new legislation. But it’s even more than that: State legislatures are beginning to govern as though majorities of the electorate either cannot vote or won’t even bother. This phenomenon is partly attributable to dozens of recent voter suppression measures inspired by the Big Lie, which limit Americans’ ability to vote their own representatives out of office. But it also springs from the fact that many Republicans believe they no longer have to worry about popular opinion because an increasing number of GOP lawmakers are convinced they can just set aside election results they dislike. It’s why Texas last week ordered an Arizona-style “audit” of the 2020 election results in four counties and why Gov. Greg Abbott won’t countenance a rape exception to S.B. 8. They no longer think they’ll have to answer to the entire public, ever. That’s the frightening idea that lurks under the flurry of new voting laws. And it has gained so much traction, so quickly, that most of us still struggle to wrap our heads around it.
In the months since Donald Trump tried to overturn the 2020 election, the voting rights fight has moved—as our colleague Rick Hasen has been trying to explain—from voter suppression to election subversion. This problem can’t be resolved by simple get-out-the-vote efforts, Hasen argues. Republicans envision a future in which they can steal entire presidential elections, an idea gaining traction in some state legislatures right now. Welcome to the new GOP—the post-voting party.
As Hasen points out, the issue of election subversion—the wholesale Republican repudiation of final election tallies—is finally getting the attention it deserves. In September, Robert Kagan wrote a vital piece laying out the way the GOP will use the “stop the steal” uncertainty of 2020 to foster an actual steal in 2024. He lays out the plan:
Meanwhile, the amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office. Republican legislatures are giving themselves greater control over the election certification process. As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature.
Laughing about the results of, say, the fake Arizona audit misses the point. That ersatz audit was always designed to lay down the tracks for subversion of the 2024 contests by sowing doubt about election integrity. In a report last month, Reuters concluded that 10 of the 15 Republican candidates for secretary of state in Arizona, Georgia, Michigan, Nevada and Wisconsin “either declared that the 2020 election was stolen or called for their state’s results to be invalidated or further investigated.” At this late date, the chief goal of relitigating 2020, of course, is to pre-litigate 2024.
And lest you think this is all hypothetical, it came within the realm of possibility in 2020. Last December, Jeffrey Bossert Clark—then acting head of Justice Department’s Civil Division—circulated a draft letter urging Georgia’s governor and other state officials to convene the state legislature in a special session. Clark’s letter repeated lies about widespread election fraud, then concluded that “the Georgia General Assembly has implied authority under the Constitution of the United States to call itself into special session for [t]he limited purpose of considering issues pertaining to the appointment of Presidential Electors.” His point was that the Georgia state legislature could simply toss the slate of Biden electors and appoint Trump electors instead. (This is different from John Eastman’s wackadoo plot to have Mike Pence toss out the vote count on Jan. 6 but similar in that the nihilist view is that Republicans can break elections law to steal elections).
With this backdrop in mind, turn back to S.B. 8, the Texas law. Opponents of Roe v. Wade have long argued that abolishing the constitutional right to abortion will be salutary for American democracy. It would, they allege, return the issue to state legislatures, where it rightly belongs. As Justice Antonin Scalia put it, a state-by-state battle over abortion would open up a “democratic outlet for the deep passions this issue arouses” and affords both sides “an honest fight.” But is that true? Consider what Texans must do to topple S.B. 8 now that the Supreme Court has refused to block it: First, they need to oust a sufficient number of the Republican legislators who voted for the bill. That task was an uphill climb before these very same legislators drew themselves a new gerrymander that locks in their majority by diluting the votes of Black and Hispanic residents. It will be virtually impossible for Democrats to win a majority in the Texas Legislature for years to come—even if they win a majority of votes.
But imagine that, somehow—through unbelievable organizing that no one should have to do to merely ensure citizens can vote—pro-choice voters do vote out these anti-abortion lawmakers. This outcome only matters if election officials certify it, and if the losing lawmakers abide by the results. As Kagan, Hasen, and other experts have explained, we can no longer be confident that officials will perform this duty fairly. Think of the canvassing board members who tried to throw out Democratic ballots in Michigan. Or the Trump acolytes currently running for secretary of state on a platform that rejects the legitimacy of Democratic election victories. It is too easy to imagine these officials attempting to manipulate the ballot count or certify a Republican loser as the true winner. We got a preview of this strategy earlier this year, when Pennsylvania’s Republican-controlled Senate refused to seat a Democratic state senator because it rejected the outcome of his race. (He was eventually seated after a federal court weighed in.)
In theory, abortion rights advocates frustrated by these obstacles on the state level could seek federal solutions. But here, too, these advocates face a series of anti-democratic hurdles. Republicans may well have drawn themselves a guaranteed majority in the House of Representatives after the 2022 elections. Texas’ new congressional districts, like its legislative districts, weaken the voting power of racial minorities—even though people of color accounted for 95 percent of the state’s population growth since 2010. Keeping the White House in Democratic hands will get harder, too. The new crop of Trump-aligned election officials are eager to throw the 2024 presidential race to a Republican (ideally, Trump).
Finally, consider the nuclear option: State legislatures may attempt to hand their electoral votes to a Republican even if a Democrat carries the state. That’s what Jeffrey Bossert Clark asked the Georgia legislature to do, after all—it is no longer possible to dismiss as quixotic. The doctrinal underpinnings of such a coup have already drawn support from four conservative justices who seek to give legislatures sweeping power over elections. If legislatures start deciding presidential elections themselves, Republican control over the presidency may become permanent. The courts will only grow more conservative and uphold more draconian voter suppression tactics. And the country will be trapped in the loop of counter-majoritarianism that enables laws like S.B. 8. Just wait and see how upset voters get about the Supreme Court overturning Roe v. Wade—and then watch how impossible it is for them to actually do anything about it. You can’t out-organize this push.
The people who are churning out wildly unpopular laws are doing it because they believe they are immune from electoral consequences. One reason the Texas Legislature simply doesn’t care about backlash against its radical 2021 measures is because the Texas Legislature has no intention of honoring the outcome of elections going forward. That includes presidential elections, which decide judicial appointments.
So, yes, it’s important to organize around abortion and state legislatures passing wildly unpopular laws like S.B. 8 that are wholly out of line with public sentiment. But the problem is that they know people will be upset about abortion, and they are already taking the steps to ensure that does not affect their hold on power. Which is why absolutely nothing else we do will be as imperative as ensuring that we have free and fair elections whose results are honored. Hasen built a road map last week to achieve some of that. The path to restoring reproductive rights in Texas, and around the country, begins, as it always has, with forcing ourselves to care about local canvassing board members and secretaries of state. Otherwise, the GOP will continue to run the table, merely because it can.