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      Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene

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      The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 disqualified many former Confederates from holding certain public offices if they had taken an oath to support the U.S. Constitution but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the federal judiciary has had few occasions to interpret Section 3. As a result, the courts are largely in uncharted territory. Nevertheless, there is some important on-point precedent.An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.Mr. Cawthorn and Ms. Greene deny that they engaged in insurrection and oppose any assertion that they violated the law, which would include Section 3 disqualifying offenses. Moreover, in the Cawthorn and Greene cases, the plaintiffs have not pointed to any federal legislation authorizing the states to police Section 3 by disqualifying accused insurrectionists from the congressional ballot. Without federal authorization, state elections boards and even state courts could very well be powerless to make determinations about congressional candidates and Section 3.There may be another way, based on an existing statute, to disqualify a candidate from congressional ballots: the Insurrection Act of 1862. This legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.The modern Insurrection Act is virtually unchanged from the statute Lincoln signed in 1862. If the Justice Department indicts and succeeds in convicting Mr. Cawthorn, Ms. Greene or others of insurrection under that act, then on that basis, state elections boards and state courts may remove these candidates from the congressional ballot.Representative Madison Cawthorn of North Carolina.Stefani Reynolds for The New York TimesBut so far, the Justice Department has not charged any congressional candidates with inciting or engaging in an insurrection or with any other disqualifying offenses. Most of the Jan. 6 federal charges have been based on things like property crimes or for obstructing official proceedings or assaulting officers rather than insurrection.If the Justice Department does not secure a conviction of a Section 3 disqualifying offense before the state ballot is printed (the primary in North Carolina is scheduled for May 17 and the one in Georgia for May 24), then, generally, state boards of election and even state courts will be powerless to remove otherwise eligible congressional candidates from the ballot.Recently, some scholars and advocates have contested Chief Justice Chase’s opinion in Griffin’s case as precluding the state challenges against Mr. Cawthorn and Ms. Greene. In their view, even in the absence of a federal statute, state election officials who conclude that a person engaged in insurrection may proceed to remove that candidate from the congressional ballot. There is no Supreme Court precedent that squarely forecloses that position. Moreover, Chief Justice Chase’s decision was not rendered by the United States Supreme Court, and so it is not controlling precedent. On Monday, a federal court in Georgia allowed the state court disqualification proceeding to go forward against Representative Greene. The federal judge did so without citing or distinguishing Griffin’s case.Still, we think the chief justice’s opinion is persuasive; we expect state and federal courts, including the U.S. Supreme Court, will likely follow this historically entrenched position. Chief Justice Chase’s approach is the simplest path. If the courts find that Section 3 is not self-executing, there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene — and potentially, looking ahead to 2024, Donald Trump — engaged in insurrection.Congress has not authorized the states to enforce Section 3 by striking congressional candidates from the ballot. Thus, state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot. In such circumstances, state governments must let the people decide who will represent them in Congress.Josh Blackman is a law professor at South Texas College of Law Houston. S.B. Tillman is an associate professor at the Maynooth University School of Law and Criminology. They recently wrote a law review article about the application of Section 3 of the 14th Amendment to President Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Trump Allies Are Still Feeding the False 2020 Election Narrative

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      Fifteen months after they tried and failed to overturn the 2020 election, the same group of lawyers and associates is continuing efforts to “decertify” the vote, feeding a false narrative.A group of President Donald J. Trump’s allies and associates spent months trying to overturn the 2020 election based on his lie that he was the true winner.Now, some of the same confidants who tried and failed to invalidate the results based on a set of bogus legal theories are pushing an even wilder sequel: that by “decertifying” the 2020 vote in key states, the outcome can still be reversed.In statehouses and courtrooms across the country, as well as on right-wing news outlets, allies of Mr. Trump — including the lawyer John Eastman — are pressing for states to pass resolutions rescinding Electoral College votes for President Biden and to bring lawsuits that seek to prove baseless claims of large-scale voter fraud. Some of those allies are casting their work as a precursor to reinstating the former president.The efforts have failed to change any statewide outcomes or uncover mass election fraud. Legal experts dismiss them as preposterous, noting that there is no plausible scenario under the Constitution for returning Mr. Trump to office.But just as Mr. Eastman’s original plan to use Congress’s final count of electoral votes on Jan. 6, 2021, to overturn the election was seen as far-fetched in the run-up to the deadly Capitol riot, the continued efforts are fueling a false narrative that has resonated with Mr. Trump’s supporters and stoked their grievances. They are keeping alive the same combustible stew of conspiracy theory and misinformation that threatens to undermine faith in democracy by nurturing the lie that the election was corrupt.The efforts have fed a cottage industry of podcasts and television appearances centered around not only false claims of widespread election fraud in 2020, but the notion that the results can still be altered after the fact — and Mr. Trump returned to power, an idea that he continues to push privately as he looks toward a probable re-election run in 2024.Democrats and some Republicans have raised deep concerns about the impact of the decertification efforts. They warn of unintended consequences, including the potential to incite violence of the sort that erupted on Jan. 6, when a mob of Mr. Trump’s supporters — convinced that he could still be declared the winner of the 2020 election — stormed the Capitol. Legal experts worry that the focus on decertifying the last election could pave the way for more aggressive — and earlier — legislative intervention the next time around.“At the moment, there is no other way to say it: This is the clearest and most present danger to our democracy,” said J. Michael Luttig, a leading conservative lawyer and former appeals court judge, for whom Mr. Eastman clerked and whom President George W. Bush considered as a nominee to be the chief justice of the United States. “Trump and his supporters in Congress and in the states are preparing now to lay the groundwork to overturn the election in 2024 were Trump, or his designee, to lose the vote for the presidency.”Most of Mr. Trump’s aides would like him to stop talking about 2020 — or, if he must, to focus on changes to voting laws across the country rather than his own fate. But like he did in 2020, when many officials declined to help him upend the election results, Mr. Trump has found a group of outside allies willing to take up an outlandish argument they know he wants to see made.The efforts have been led or loudly championed by Mike Lindell, the chief executive of MyPillow; Michael T. Flynn, Mr. Trump’s first national security adviser; Stephen K. Bannon, the former White House chief strategist; and Boris Epshteyn, an aide and associate of Mr. Trump’s.Another key player has been Mr. Eastman, the right-wing lawyer who persuaded Mr. Trump shortly after the election that Vice President Mike Pence could reject certified electoral votes for Mr. Biden when he presided over the congressional count and declare Mr. Trump the victor instead.Mr. Eastman wrote a memo and Mr. Epshteyn sent an email late last year to the main legislator pushing a decertification bill in Wisconsin, laying out a legal theory to justify the action. Mr. Eastman met last month with Robin Vos, the speaker of the State Assembly, and activists working across the country, a meeting that was reported earlier by The Milwaukee Journal Sentinel.Jefferson Davis, an activist from Wisconsin, said he had asked Mr. Eastman to join the meeting after hearing about his work on behalf of Mr. Trump following the election.“If it was good enough for the president of the United States,” Mr. Davis said in an interview, “then his expertise was good enough to meet with Speaker Vos in Wisconsin on election fraud and what do we do to fix it.”Mr. Vos has maintained that the Legislature has no pathway to decertification, in line with the guidance of its own lawyers.John Eastman, left, has made clear that he has no intention of dropping his fight to show that the election was stolen.Jim Bourg/Reuters“There is no mechanism in state or federal law for the Legislature to reverse certified votes cast by the Electoral College and counted by Congress,” the lawyers wrote, adding that impeachment was the only way to remove a sitting president other than in the case of incapacity.But Mr. Eastman has made clear that he has no intention of dropping his fight to prove that the election was stolen. The House committee investigating the Jan. 6 attack has said his legal efforts to invalidate the results most likely violated the law by trying to defraud the American people. A federal judge recently agreed, calling Mr. Eastman’s actions “a coup in search of a legal theory.”Legal experts say his continued efforts could increase his criminal exposure; but if Mr. Eastman were ever to be charged with fraud, he could also point to his recent work as evidence that he truly believed the election was stolen.“There are a lot of things still percolating,” Mr. Eastman said in an interview with The New York Times last fall. He claimed that states had illegally given people the ability to cast votes in ways that should have been forbidden, corrupting the results. And he pointed to a widely debunked video from State Farm Arena in Atlanta, which he claimed showed that tabulation ballots were run through counting machines multiple times during the election.Charles Burnham, Mr. Eastman’s lawyer, said in a statement that he “was recently invited to lend his expertise to legislators and citizens in Wisconsin confronting significant evidence of election fraud and illegality. He did so in his role as a constitutional scholar and not on behalf of any client.”The fringe legal theory that Mr. Eastman and Mr. Epshteyn are promoting — which has been widely dismissed — holds that state lawmakers have the power to choose how electors are selected, and they can change them long after the Electoral College has certified votes if they find fraud and illegality sufficiently altered the outcome. The theory has surfaced in multiple states, including several that are political battlegrounds.As in Wisconsin, state legislators in Arizona drafted resolutions calling for the decertification of the 2020 election. In Georgia, a lawsuit sought to decertify the victories of the Democratic senators Jon Ossoff and Raphael Warnock. And Robert Regan, a Republican favored to win a seat in the Michigan House, has said he wants to decertify the 2020 election either through a ballot petition or the courts.Mr. Bannon, Mr. Lindell and Mr. Epshteyn have repeatedly promoted decertification at the state level on Mr. Bannon’s podcast, “War Room,” since last summer, pushing it as a steady drumbeat and at times claiming that it could lead to Mr. Trump being put back into office. They have described the so-called audit movement that began in Arizona and spread to other states as part of a larger effort to decertify electoral votes.“We are on a full, full freight train to decertify,” Mr. Epshteyn said on the program in January. “That’s what we’re going to get. Everyone knows. Everyone knows this election was stolen.”Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 3Debating a criminal referral. More

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      The Supreme Court Did the Right Thing. I’m Still Worried.

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      State legislatures are, and always have been, creatures of state constitutions, bound by the terms of those constitutions and subject to the judgments of state courts.This has important implications for the nature of state legislative power. The federal Constitution may give state legislatures the power to allocate electoral votes and regulate congressional elections, but that power is subject to the limits imposed by state constitutions.Imagine what could happen if that were not the case. Imagine, instead, that state legislatures had plenary power over federal elections, which would allow them to overrule state courts, ignore a governor’s veto and even nullify an act of Congress. State legislatures would, in essence, be sovereign, with unchecked power over the fundamental political rights of those citizens who lived within their borders.This change would both unravel and turn the clock back on our constitutional order, with states acting more like the quasi-independent entities they were before the Civil War and less as the subordinate units of a national polity.But that, apparently, is what some Republicans want.Recently, Republicans in North Carolina and Pennsylvania asked the U.S. Supreme Court to block congressional maps drawn by their state courts. Their argument was based on a revolutionary doctrine that would tee up this fundamental change to the American political system.The challenges, which failed, stemmed from the effort to gerrymander Democrats out of as much power as possible. In North Carolina, the proposed gerrymander was so egregious that the state Supreme Court ruled that it was in violation of the state’s constitution. The court drew a new map to rectify the problem. In Pennsylvania, likewise, state courts drew a new congressional map after Gov. Tom Wolf, a Democrat, vetoed the heavily gerrymandered map produced by the Republican-led legislature.The North Carolina Supreme Court’s ruling and the Pennsylvania governor’s veto should have been the last word. Both were acting in accordance with their state constitutions, which bind and structure the actions of the state legislatures in question. For Republicans, however, those checks on their power are illegitimate. Their argument, in brief, is that neither state courts nor elected executives have the right to interfere with or challenge the power of state legislatures as it relates to the regulation of federal elections.Nestled at the heart of the Republican argument is a breathtaking claim about the nature of state legislative power. Called the “independent state legislature” doctrine, it holds that Article I, Section 4 of the U.S. Constitution — which states that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators” — gives state legislatures total power to write rules for congressional elections and direct the appointment of presidential electors, unbound by state constitutions and free from the scrutiny of state courts.This isn’t a new theory, exactly. In his concurring opinion in Bush v. Gore in 2000 — joined by justices Antonin Scalia and Clarence Thomas — Chief Justice William Rehnquist argued that under Article II, any “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” Meaning, in short, that a state court could go beyond its authority in adjudicating state election law. The other two Republican-appointed justices on the court, Anthony Kennedy and Sandra Day O’Connor, declined to join Rehnquist’s concurrence, even as they voted to stop the counting and give George W. Bush the win.For 20 years, the doctrine lay dormant. It was resurrected, in 2020, by allies of Donald Trump, who needed some constitutional pretense for their attempt to overturn his defeat. Before the election, a number of state courts had ordered state governments to make accommodations for the pandemic, citing state constitutions. Elsewhere, governors, secretaries of state and state boards of election took matters into their own hands, bypassing the legislature (and using their own authority under the law) to accommodate voters. When, after the election, the Trump campaign sued either to throw out ballots or to invalidate results, its lawyers offered the “independent state legislature” doctrine as justification. So too did supporters of Trump who wanted Republican legislatures to void election results and choose electors who would give the president a second term.The basic problem with this doctrine is that it’s bunk. “The text of the Elections and Electors clauses is silent as to the role of state constitutions, but the subsequent history is anything but,” the legal scholar Michael Weingartner writes in a draft article on the theory of independent state legislatures. “Since the Founding, state constitutions have both directly regulated federal elections and constrained state legislatures’ exercise of their authority under the Clauses.” What’s more, over the past century, “nearly every election-related state constitutional provision was either approved and presented to voters by state legislatures or placed on the ballot and enacted by voters directly.” Even if the federal Constitution is vague on the full scope of state legislative power to regulate elections, both history and practice have fixed the meaning of the relevant clauses in favor of constraint. State constitutions (and state courts) do in fact regulate state legislatures as it relates to election law.Some proponents of the “independent state legislature” doctrine argue that theirs represents the original understanding of the Elections and Electors clauses in the Constitution. Another researcher, Hayward H. Smith, says otherwise. “The history demonstrates beyond cavil that the founding generation understood that ‘legislatures’ would operate as normal legislatures, not independent legislatures, with respect to both procedure and substance,” he writes. In fact, he notes, a review of every state constitution adopted in the 19th century reveals “that both explicit and nonexplicit limitations on ‘legislatures’ were widespread before, during, and after the Civil War.”There’s simply no basis for the claim that the Constitution grants state legislatures this kind of unaccountable power over the conduct of federal elections. It runs counter to the basic idea behind the American political system, that is, the sharing and separation of power among competing and overlapping institutions. It defeats the purpose of this delicate balance to give state legislatures plenary power over federal elections (to say nothing of how it is incongruent with the elite frustration over the scope of states’ power that gave rise to the Constitution in the first place).Thankfully, the Supreme Court rejected the challenge from Republicans in Pennsylvania and North Carolina. Still, there may be four votes for the theory of the “independent state legislature.” In a 2020 dissent from the majority on the question of whether Pennsylvania should count certain mail-in ballots, Justices Thomas, Samuel Alito and Brett Kavanaugh appeared sympathetic to the doctrine. Neil Gorsuch endorsed it outright, writing that “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”Dissenting from the court’s decision in the North Carolina case, Alito called the question of state legislative power an issue of “great national importance,” a clear signal that he is open to the arguments of Republican legislators. Kavanaugh concurred. “I agree with Justice Alito that the underlying Elections Clause question raised in the emergency application is important, and that both sides have advanced serious arguments on the merits. The issue is almost certain to keep arising until the Court definitively resolves it.”It is unclear where the newest justice, the Trump appointee Amy Coney Barrett, stands on the doctrine, although she appears to have voted with the majority in these particular cases.It is a good thing that the Supreme Court has decided not to throw out more than 230 years of precedent and practice for the sake of a bizarre and anti-democratic reading of the Constitution. But previous Supreme Courts have endorsed bizarre and anti-democratic readings of the Constitution — the Constitution itself has an uneasy relationship with American democracy — and this court, especially, has been more hostile than friendly to the more expansive view of our democratic rights.We can breathe a sigh of relief, for now, but when it comes to the future of the “independent state legislature” doctrine, the worst may still be on the horizon.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Democrats Are Failing to Defend Democracy

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      When it comes to elections, the Republican Party operates within a carapace of lies. So we rely on the Democrats to preserve our system of government.The problem is that Democrats live within their own insular echo chamber. Within that bubble convenient falsehoods spread, go unchallenged and make it harder to focus on the real crisis. So let’s clear away some of these myths that are distorting Democratic behavior:The whole electoral system is in crisis. Elections have three phases: registering and casting votes, counting votes and certifying results. When it comes to the first two phases, the American system has its flaws but is not in crisis. As Yuval Levin noted in The Times a few days ago, it’s become much easier in most places to register and vote than it was years ago. We just had a 2020 election with remarkably high turnout. The votes were counted with essentially zero fraud.The emergency is in the third phase — Republican efforts to overturn votes that have been counted. But Democratic voting bills — the For the People Act and its update, the Freedom to Vote Act — were not overhauled to address the threats that have been blindingly obvious since Jan. 6 last year. They are sprawling measures covering everything from mail-in ballots to campaign finance. They basically include every idea that’s been on activist agendas for years.These bills are hard to explain and hard to pass. By catering to D.C. interest groups, Democrats have spent a year distracting themselves from the emergency right in front of us.Voter suppression efforts are a major threat to democracy. Given the racial history of this country, efforts to limit voting, as some states have been implementing, are heinous. I get why Democrats want to repel them. But this, too, is not the major crisis facing us. That’s because tighter voting laws often don’t actually restrict voting all that much. Academics have studied this extensively. A recent well-researched study suggested that voter ID laws do not reduce turnout. States tighten or loosen their voting laws, often seemingly without a big effect on turnout. The general rule is that people who want to vote end up voting.Just as many efforts to limit the electorate don’t have much of an effect, the Democratic bills to make it easier to vote might not have much impact on turnout or on which party wins. As my Times colleague Nate Cohn wrote last April, “Expanding voting options to make it more convenient hasn’t seemed to have a huge effect on turnout or electoral outcomes. That’s the finding of decades of political science research on advance, early and absentee voting.”Higher turnout helps Democrats. This popular assumption is also false. Political scientists Daron R. Shaw and John R. Petrocik, authors of “The Turnout Myth,” looked at 70 years of election data and found “no evidence that turnout is correlated with partisan vote choice.”The best way to address the crisis is top down. Democrats have focused their energies in Washington, trying to pass these big bills. The bills would override state laws and dictate a lot of election procedures from the national level.Given how local Republicans are behaving, I understand why Democrats want to centralize things. But it’s a little weird to be arguing that in order to save democracy we have to take power away from local elected officials. Plus, if you tell local people they’re not fit to govern themselves, you’re going to further inflame the populist backlash.But the real problem is that Democrats are not focusing on crucial state and local arenas. The Times’s Charles Homans had a fascinating report from Pennsylvania, where Trump backers were running for local office, including judge of elections, while Democrats struggled to even find candidates. “I’m not sure what the Democratic Party was worried about, but it didn’t feel like they were worried about school board and judge of elections races — all of these little positions,” a failed Democratic candidate said.Democrats do not seem to be fighting hard in key local races. They do not seem to be rallying the masses so that state legislators pay a price if they support democracy-weakening legislation.Maybe some of the energy that has been spent over the past year analyzing and berating Joe Manchin could have been better spent grooming and supporting good state and local candidates. Maybe the best way to repulse a populist uprising is not by firing up all your allies in the Northwest quadrant of Washington, D.C.The crisis of democracy is right in front of us. We have a massive populist mob that thinks the country is now controlled by a coastal progressive oligarchy that looks down on them. We’re caught in cycles of polarization that threaten to turn America into Northern Ireland during the Troubles. We have Republican hacks taking power away from the brave state officials who stood up to Trumpian bullying after the 2020 election.Democrats have spent too much time on measures that they mistakenly think would give them an advantage. The right response would be: Do the unsexy work at the local level, where things are in flux. Pass the parts of the Freedom to Vote Act that are germane, like the protections for elections officials against partisan removal, and measures to limit purging voter rolls. Reform the Electoral Count Act to prevent Congress from derailing election certifications.When your house is on fire, drop what you were doing, and put it out. Maybe finally Democrats will do that.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Imagine It’s 2024, and Republicans Are Declaring Trump President

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      It’s Election Day 2024. President Biden and former President Donald Trump have been locked in battle for months, with Mr. Biden holding a stable, sizable lead in the popular vote but much narrower leads in key swing states like Wisconsin, Georgia and Arizona. Turnout has been exceptionally high, nearly matching 2020 levels.The outcome will clearly come down to those three key states — all with Republican legislative majorities that put in place laws making them the final arbiters of electoral disputes. As the counting in the three proceeds, Democratic Party representatives raise a hue and cry that it is proceeding unfairly, with significant numbers of valid ballots being rejected without proper cause. State election officials (mostly pro-Trump Republicans) declare that there is no substance to these objections. All three conclude that Mr. Trump won their states’ electors, and with them the presidency.Is it likely that Democratic voters would accept this result without protest and a constitutional crisis (and perhaps even violent protest)?I think the answer is no, and I suspect most Democrats reading this would agree with me. And that’s why, notwithstanding all the good arguments for reforming our electoral system, there is no legislative solution to the deepest problem threatening American democracy: the profound lack of trust in the legitimacy of the opposition.The scenario I described above is precisely what multiple observers have been warning about in the year since the Jan. 6 attack on the Capitol. Republican legislatures in several states have revised their election statutes to give themselves more authority over the conduct of elections in their states, reducing the authorities of state secretaries of state, governors and county election officials in the process. From the perspective of anyone who isn’t a Republican, those moves look like preparation to commit fraud and to do so with legal impunity.Many of those legislators, however, will say that their moves are intended to shore up confidence in the electoral system — that they are, in fact, a response to those same terrible events of Jan. 6. Their voters believe — wrongly, as at least a few of those same Republican officials will admit — that the 2020 election was decided unfairly, on the basis of fraudulent votes. At a minimum, more and more mainstream Republicans are arguing, voting procedures were capriciously changed by biased election officials and judges using the pandemic as an excuse in a way that unfairly advantaged Democrats. Therefore, they need to take these kinds of steps to convince their voters that the election will be conducted fairly.Perhaps they are right that this is what it would take to convince their voters. If they are, though, they will succeed only by undermining the confidence of the other party in those same election results. The same, sadly, is likely true of proposed Democratic attempts to shore up confidence in the electoral system.It seems to have been largely forgotten, but in 2020, despite extraordinary strain, the system worked. As independent observers have attested, no meaningful fraud marred the election. Turnout was extremely high for both parties despite pandemic conditions, attesting to the lack of effective voter suppression as well. Republican officeholders at all levels of government were pressed to find fraud that didn’t exist, to decertify valid results and otherwise to undermine the integrity of the election. They overwhelmingly resisted that pressure. The same is true of the judicial branch, which rejected out of hand the Trump campaign’s spurious legal challenges.None of that, however, was sufficient to persuade tens of millions of Trump voters that their candidate actually lost. On the contrary: When forced to choose between President Trump’s baseless assertions and the conclusions of those Republicans duly charged with overseeing the election, these voters chose Mr. Trump over members of their own party who acted with integrity. The rioters on Jan. 6 turned to violence because they believed that the election was stolen, and they believed that despite all the authorities, Democrats and Republicans, actually responsible for running it saying otherwise.That’s not a problem that can be solved by tinkering with the mechanics of elections oversight. It’s entirely possible that worthwhile reforms to limit political grandstanding could fuel distrust by Democrats in the legitimacy of elections.Take the Electoral Count Act, a particular focus of concern because of John Eastman’s memo suggesting, absurdly, that it granted Vice President Mike Pence the authority to unilaterally set aside certified electoral votes. The act was originally passed to prevent a repeat of the disputed election of 1876, during which Congress — previously responsible for resolving such disputes — deadlocked over which electors to approve from three states that submitted dueling slates. The act reduced Congress’s role and aimed to provide clear rules for how and when states must approve their slates to avoid disputes.Those provisions can — and should — be clarified, to eliminate the possibility that a future vice president might do what Mike Pence refused to, or that future representatives and senators could baselessly undermine popular confidence in election integrity as numerous Republicans have done in the wake of the last election.But what any such reform would do is push more authority back down to the state level or over to the judicial branch. What happens if those actors behave in a corruptly partisan manner? With key state legislatures in Republican hands and with the Supreme Court dominated by Republican appointees inclined to give latitude to those same state legislatures in setting electoral rules, it’s not hard to imagine many Democrats in 2024 concluding that by reforming the act they had disarmed themselves.Some Democrats, therefore, have called for federalizing America’s unusually decentralized national elections, to override the possibility of partisan state legislature interference in either the conduct of the election or the vote count and certification of the winners. Because the constitution vests a great deal of authority at the state level, some of these proposals might well face constitutional challenges — but even if they passed muster, what would they achieve? They would invest more power in Congress, which might well be in Republican hands. How confident would Democrats be in an election in 2024 ultimately overseen by Kevin McCarthy in the House and Mitch McConnell in the Senate?Nor would investing that power in another state-level authority be assured to fare better. After the 2020 election, Georgia Secretary of State Brad Raffensperger, a Republican, was a hero for refusing to compromise his integrity. But in the 2000 election, the independent authority responsible for running the election in Florida was Secretary of State Katherine Harris, a Republican who was widely distrusted by Democrats for what they saw as favoritism to George W. Bush. This distrust was a mirror of Republicans’ own distrust of the recount process as conducted in a number of Democratically controlled counties in South Florida. It was distrust all the way up and all the way down. It ended only because Al Gore accepted the authority of the Supreme Court.There are potential reforms that could significantly improve the democratic accountability of our system and reduce the scope for either party to skew the process. Taking redistricting out of the hands of state legislatures and entrusting it to nonpartisan bodies is an obvious example. Breaking up the largest states, or creating multimember congressional districts, are more profound reforms that could empower currently underrepresented political minorities from both camps. There are likely deals to strike on voting rights that could provide better security against both fraud and suppression.Such reforms, however, will never be trusted if they are enacted on a purely partisan basis to plainly partisan ends. Even if they are responding to real distortions, and are formally neutral, they will be perceived and opposed as illegitimate partisan grabs if they aren’t undertaken cooperatively. They won’t break the cycle of distrust or prevent a recurrence of Jan. 6 any more than widespread agreement among nonpartisan observers that the 2020 election was fair did so.The problem is not that America is incapable of conducting an election with integrity. We just did, under some of the most difficult conditions.The problem is that too many Americans — predominantly Republicans today, but perhaps Democrats tomorrow — do not believe or accept the results, and that their leaders — again, predominantly Republicans today, but perhaps Democrats tomorrow — are willing and eager to cater to that mistaken conviction.That’s a problem that can’t be legislated away. It can be resolved only by the parties themselves committing that demagogy will stop at the election’s edge. Until that happens, American democracy will be in crisis, no matter what laws we pass to protect it.Noah Millman is a political columnist at The Week and the film and theater critic at Modern Age.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Michigan’s New Congressional Maps Undo Years of Gerrymandering

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      A citizen ballot initiative took redistricting out of the hands of partisan legislators. The result: competitive political districts — and an example of how to push back against hyperpartisanship.One of the country’s most gerrymandered political maps has suddenly been replaced by one of the fairest.A decade after Michigan Republicans gave themselves seemingly impregnable majorities in the state Legislature by drawing districts that heavily favored their party, a newly created independent commission approved maps late Tuesday that create districts so competitive that Democrats have a fighting chance of recapturing the State Senate for the first time since 1984.The work of the new commission, which includes Democrats, Republicans and independents and was established through a citizen ballot initiative, stands in sharp contrast to the type of hyperpartisan extreme gerrymandering that has swept much of the country, exacerbating political polarization — and it may highlight a potential path to undoing such gerrymandering.With lawmakers excluded from the mapmaking process, Michigan’s new districts will much more closely reflect the overall partisan makeup of the hotly contested battleground state.“Michigan’s a jump ball, and this is a jump-ball map,” said Michael Li, a senior counsel who focuses on redistricting at the Brennan Center for Justice. “There’s a lot of competition in this map, which is what you would expect in a state like Michigan.”The commission’s three new maps — for Congress, the State House and the State Senate — restore a degree of fairness, but there were some notable criticisms. All of the maps still have a slight Republican advantage, in part because Democratic voters in the state are mostly concentrated in densely populated areas. The map for the State House also splits more than half of the state’s counties into several districts, despite redistricting guidelines that call for keeping neighboring communities together.The maps may also face a legal challenge from Black voters in the Detroit area, to whom the commission tried to give more opportunities for representation by unpacking them, or spreading them among more legislative districts.Redistricting at a GlanceEvery 10 years, each state in the U.S is required to redraw the boundaries of their congressional and state legislative districts in a process known as redistricting.Redistricting, Explained: Answers to your most pressing questions about redistricting and gerrymandering.Breaking Down Texas’s Map: How redistricting efforts in Texas are working to make Republican districts even more red.G.O.P.’s Heavy Edge: Republicans are poised to capture enough seats to take the House in 2022, thanks to gerrymandering alone.Legal Options Dwindle: Persuading judges to undo skewed political maps was never easy. A shifting judicial landscape is making it harder.Detroit’s State Senate delegation will jump to nine members from five, and its State House delegation to 15 representatives from nine. But local Black elected officials and civil rights groups contend that while the intention may have been noble, the result actually dilutes Black voting strength, not only in general elections but also in primaries, in which elections for Black legislators are almost always decided.The reduced percentages of Black voters in some of the new districts may prevent candidates from winning primary elections on the strength of the Black vote alone, those critics say.“The goal of creating partisan fairness cannot so negatively impact Black communities as to erase us from the space,” said Adam Hollier, a state senator from the Detroit area. “They think that they are unpacking, because that is the narrative that they hear from across the country, without looking at what that means in the city of Detroit.”Republicans were also discussing possible challenges to the new maps.“We are evaluating all options to take steps necessary to defend the voices silenced by this commission,” Gustavo Portela, a Michigan G.O.P. spokesman, said in a statement Wednesday, without elaborating on whose voices he meant.The G.O.P. advantage in Michigan’s Legislature has held solid for years even as Democrats carried the state in presidential elections and won races for governor and U.S. Senate. In 2014, Senator Gary Peters, a Democrat, won the seat formerly held by Carl Levin by more than 13 percentage points. Yet in the same year, Republicans in the State Senate expanded their supermajority, winning 27 of 38 seats.So great a divergence between statewide and legislative elections is often a telltale sign of a gerrymandered map. And a lawsuit in 2018 unearthed emails in which Republicans boasted about packing “Dem garbage” into fewer districts and ensuring Republican advantages “in 2012 and beyond.”But the new State Senate map would create 20 seats that President Biden would have carried in 2020 and 18 that former President Donald J. Trump would have carried, giving Democrats new hopes of competitiveness.The new maps offer no guarantee that Democrats will win either chamber, however. And in a strong year for the G.O.P., which 2022 may be, Republicans could retain their advantage in the Legislature and could also come away with a majority of the state’s new 13-seat congressional delegation.The congressional map includes three tossup seats where the 2020 presidential margin was less than five points, and two more seats that could be competitive in a wave year, with presidential margins of less than 10 points. Two current Democratic representatives, Haley Stevens and Andy Levin, were drawn into the same district, setting up a competitive primary in the 11th District. Both declared their intention to run on Tuesday.The State House will also feature at least 20 competitive districts.Preserving such competition, election experts say, is one of the key goals in redistricting reform.“This is the quintessential success story of redistricting,” said Sam Wang, director of the Princeton Gerrymandering Project. “These maps treated the two parties, Democrats and Republicans, about as fairly as you could ever imagine a map being. In all three cases, whoever gets the most votes statewide is likely to control the chamber or the delegation. And there’s competition in all three maps.”Understand How U.S. Redistricting WorksCard 1 of 8What is redistricting? More

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      Map by Map, G.O.P. Chips Away at Black Democrats’ Power

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      Black elected officials in several states, from Congress down to the counties, have been drawn out of their districts this year or face headwinds to hold onto their seats.More than 30 years ago, Robert Reives Sr. marched into a meeting of his county government in Sanford, N.C., with a demand: Create a predominantly Black district in the county, which was 23 percent Black at the time but had no Black representation, or face a lawsuit under the Voting Rights Act.The county commission refused, and Mr. Reives prepared to sue. But after the county settled and redrew its districts, he was elected in 1990 as Lee County’s first Black commissioner, a post he has held comfortably ever since.Until this year.Republicans, newly in power and in control of the redrawing of county maps, extended the district to the northeast, adding more rural and suburban white voters to the mostly rural district southwest of Raleigh and effectively diluting the influence of its Black voters. Mr. Reives, who is still the county’s only Black commissioner, fears he will now lose his seat.“They all have the same objective,” he said in an interview, referring to local Republican officials. “To get me out of the seat.”Mr. Reives is one of a growing number of Black elected officials across the country — ranging from members of Congress to county commissioners — who have been drawn out of their districts, placed in newly competitive districts or bundled into new districts where they must vie against incumbents from their own party.Almost all of the affected lawmakers are Democrats, and most of the mapmakers are white Republicans. The G.O.P. is currently seeking to widen its advantage in states including North Carolina, Ohio, Georgia and Texas, and because partisan gerrymandering has long been difficult to disentangle from racial gerrymandering, proving the motive can be troublesome.But the effect remains the same: less political power for communities of color.The pattern has grown more pronounced during this year’s redistricting cycle, the first since the Supreme Court struck down the heart of the Voting Rights Act in 2013 and allowed jurisdictions with a history of voting discrimination to pass election laws and draw political maps without approval from the Justice Department.How Maps Reshape American PoliticsWe answer your most pressing questions about redistricting and gerrymandering.“Let’s call it a five-alarm fire,” G.K. Butterfield, a Black congressman from North Carolina, said of the current round of congressional redistricting. He is retiring next year after Republicans removed Pitt County, which is about 35 percent Black, from his district.“I just didn’t see it coming,” he said in an interview. “I did not believe that they would go to that extreme.”Redistricting at a GlanceEvery 10 years, each state in the U.S is required to redraw the boundaries of their congressional and state legislative districts in a process known as redistricting.Redistricting, Explained: Answers to your most pressing questions about redistricting and gerrymandering.Breaking Down Texas’s Map: How redistricting efforts in Texas are working to make Republican districts even more red.G.O.P.’s Heavy Edge: Republicans are poised to capture enough seats to take the House in 2022, thanks to gerrymandering alone.Legal Options Dwindle: Persuading judges to undo skewed political maps was never easy. A shifting judicial landscape is making it harder.A former chairman of the Congressional Black Caucus, Mr. Butterfield said fellow Black members of Congress were increasingly worried about the new Republican-drawn maps. “We are all rattled,” he said.In addition to Mr. Butterfield, four Black state senators in North Carolina, five Black members of the state House of Representatives and several Black county officials have had their districts altered in ways that could cost them their seats. Nearly 24 hours after the maps were passed, civil rights groups sued the state.Representative G.K. Butterfield of North Carolina said he was retiring next year after Republicans removed Pitt County, which is 35 percent Black, from his district.Stefani Reynolds for The New York TimesAcross the country, the precise number of elected officials of color who have had their districts changed in such ways is difficult to pinpoint. The New York Times identified more than two dozen of these officials, but there are probably significantly more in county and municipal districts. And whose seats are vulnerable or safe depends on a variety of factors, including the political environment at the time of elections.But the number of Black legislators being drawn out of their districts outpaces that of recent redistricting cycles, when voting rights groups frequently found themselves in court trying to preserve existing majority-minority districts as often as they sought to create new ones.“Without a doubt it’s worse than it was in any recent decade,” said Leah Aden, a deputy director of litigation at the NAACP Legal Defense and Educational Fund Inc. “We have so much to contend with and it’s all happening very quickly.”Republicans, who have vastly more control over redistricting nationally than Democrats do, defend their maps as legal and fair, giving a range of reasons.Kirk Smith, the Republican chairman of Lee County’s board of commissioners, said that “to say only a person of a certain racial or ethnic group can represent only a person of the same racial or ethnic group has all the trappings of ethnocentric racism.”In North Carolina and elsewhere, Republicans say that their new maps are race-blind, meaning officials used no racial data in designing the maps and therefore could not have drawn racially discriminatory districts because they had no idea where communities of color were.“During the 2011 redistricting process, legislators considered race when drawing districts,” Ralph Hise, a Republican state senator in North Carolina, said in a statement. Through a spokesperson, he declined to answer specific questions, citing pending litigation.His statement continued: “We were then sued for considering race and ordered to draw new districts. So during this process, legislators did not use any racial data when drawing districts, and we’re now being sued for not considering race.”In other states, mapmakers have declined to add new districts with majorities of people of color even though the populations of minority residents have boomed. In Texas, where the population has increased by four million since the 2010 redistricting cycle, people of color account for more than 95 percent of the growth, but the State Legislature drew two new congressional seats with majority-white populations.And in states like Alabama and South Carolina, Republican map drawers are continuing a decades-long tradition of packing nearly all of the Black voting-age population into a single congressional district, despite arguments from voters to create two separate districts. In Louisiana, Gov. John Bel Edwards, a Democrat, said on Thursday that the Republican-controlled State Legislature should draw a second majority-Black House district.Allison Riggs, a co-executive director of the Southern Coalition for Social Justice, a civil rights group, said that the gerrymandering was “really an attack on Black voters, and the Black representatives are the visible outcome of that.”Efforts to curb racial gerrymandering have been hampered by a 2019 Supreme Court decision, which ruled that partisan gerrymandering could not be challenged in federal court.Though the court did leave intact Section 2 of the Voting Rights Act, which prohibits racial gerrymandering, it offered no concrete guidance on how to distinguish between a partisan gerrymander and a racial gerrymander when the result was both, such as in heavily Democratic Black communities.Understand How U.S. Redistricting WorksCard 1 of 8What is redistricting? More

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      G.O.P. Cements Hold on Legislatures in Battleground States

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      Democrats were once able to count on wave elections to win back key statehouses. Republican gerrymandering is making that all but impossible.Republicans are locking in newly gerrymandered maps for the legislatures in four battleground states that are set to secure the party’s control in the statehouse chambers over the next decade, fortifying the G.O.P. against even the most sweeping potential Democratic wave elections.In Texas, North Carolina, Ohio and Georgia, Republican state lawmakers have either created supermajorities capable of overriding a governor’s veto or whittled down competitive districts so significantly that Republicans’ advantage is virtually impenetrable — leaving voters in narrowly divided states powerless to change the leadership of their legislatures.Although much of the attention on this year’s redistricting process has focused on gerrymandered congressional maps, the new maps being drafted in state legislatures have been just as distorted.And statehouses have taken on towering importance: With the federal government gridlocked, these legislatures now serve as the country’s policy laboratory, crafting bills on abortion, guns, voting restrictions and other issues that shape the national political debate.“This is not your founding fathers’ gerrymander,” said Chris Lamar, a senior legal counsel at the Campaign Legal Center who focuses on redistricting. “This is something more intense and durable and permanent.”This redistricting cycle, the first one in a decade, builds on a political trend that accelerated in 2011, when Republicans in swing states including Pennsylvania, Wisconsin and Michigan drew highly gerrymandered state legislative maps.Since those maps were enacted, Republicans have held both houses of state government in all three places for the entire decade. They never lost control of a single chamber, even as Democrats won some of the states’ races for president, governor and Senate.All three of those Northern states are likely to see some shift back toward parity this year, with a new independent commission drawing Michigan’s maps, and Democratic governors in Wisconsin and Pennsylvania will probably force the process to be completed by the courts.Gerrymandering is a tool used by both parties in swing states as well as less competitive ones. Democrats in deep-blue states like Illinois are moving to increase their advantage in legislatures, and Republicans in deep-red states like Utah and Idaho are doing the same.But in politically contested states where Republicans hold full control, legislators are carefully crafting a G.O.P. future. They are armed with sharper technology, weakened federal voting statutes and the knowledge that legal challenges to their maps may not be resolved in time for the next elections.In Texas, North Carolina and Ohio, Republican governors have signed into law new maps with a significant advantage for the party. Georgia is moving quickly to join them.Republicans say that the growth of such heavily skewed legislatures is both the result of the party’s electoral victories and of where voters choose to live.State legislative districts are by nature much smaller in population than congressional districts, meaning they are often more geographically compact.As Democratic voters have crowded into cities and commuter suburbs, and voters in rural and exurban areas have grown increasingly Republican, G.O.P. mapmakers say that they risk running afoul of other redistricting criteria if they split up those densely populated Democratic areas across multiple state legislative districts.“What you see is reflective of the more even distribution of Republican and right-leaning voters across wider geographic areas,” said Adam Kincaid, the director of the National Republican Redistricting Trust. Trying to draw more competitive legislative districts, he said, would result in “just a lot of squiggly lines.”He pointed to maps in Wisconsin that were proposed by a commission created by Gov. Tony Evers, a Democrat. Under those designs, Republicans would still have a majority in both state legislative chambers (though with significantly smaller margins).“They’re limited by geography,” Mr. Kincaid said. “There’s only so many things you can do to spread that many voters across a wide area.”Democrats note that Republicans are still cracking apart liberal communities — especially in suburbs near Akron and Cleveland in Ohio and in predominantly Black counties in northern and central North Carolina — in a way that helps the G.O.P. and cuts against a geographical argument.“They are carving up Democratic voters where they can’t pack them,” said Garrett Arwa, the director of campaigns at the National Democratic Redistricting Committee. He argued that Democratic map proposals “all put forth better and more fair maps that I would say are far from a Rorschach test.”Democrats have fewer opportunities to unilaterally draw state legislative maps, particularly in battleground states. Of the 14 states where the margin of the 2020 presidential race was fewer than 10 percentage points, Democrats are able to draw state legislative maps in just one: Nevada. Republicans control the redistricting process in six of those 14 states. (The rest have divided governments, or their maps are drawn by commissions.)But when Democrats have had an opening, they have also enacted significant gerrymanders at the state legislative level. In Nevada, Democrats are close to finalizing a map that would give them supermajorities in both chambers of the Legislature, despite President Biden’s winning just 51 percent of the state’s vote last year.The same holds true in deeply blue states. In Illinois, newly drawn State Senate maps would give Republicans roughly 23 percent of seats in the chamber, even though former President Donald J. Trump won more than 40 percent of voters in the state in 2020.Republicans have taken two approaches to ensure durable majorities in state legislatures. The tactics in Texas and Georgia are more subtle, while Republicans in Ohio and North Carolina have taken more brazen steps.In Texas and Georgia, the party has largely eliminated competitive districts and made both Republican and Democratic seats safer, a move that tends to ward off criticism from at least some incumbents in the minority party.“Out of the 150 seats in the Texas House, only six of them are within seven points or closer,” said Sam Wang, the director of the Princeton Redistricting Project. Republicans now hold a 20-seat advantage in the chamber, 85 to 65, and the new maps will give the party roughly two more seats. So while the G.O.P. lawmakers did not try to draw an aggressive supermajority, “what they really did a good job of there is getting rid of competition and getting a reasonably safe majority for themselves,” Mr. Wang said.Understand How U.S. Redistricting WorksCard 1 of 8What is redistricting? More