|By Ross Sherman
Media Relations Manager
January 26, 2023
Despite being pushed to the brink, 2022 turned out to be an impressive year for democracy. Election liars lost key races. RepresentUs supported 15 victories to give voters better choices and better representation in government, including a huge win in Nevada for Ranked Choice Voting. The anti-corruption movement successfully took power from politicians and gave it back to the voters.
But a backlash is coming. From the states to the Supreme Court, corrupt politicians are coming after our hard-fought victories. And in some places, including Alaska, that backlash is already happening.
Politicians and special interests have taken their anti-voter agenda all the way to the Supreme Court in a case called Moore v. Harper. This case involves a fringe legal theory called the Independent State Legislature Theory (ISL). If the justices embrace ISL, they would give state legislators unchecked power to set federal election rules. That means hundreds of existing state election rules could be at risk, potentially affecting how every American votes.
1. State legislators could restrict absentee voting by going around their constitution
Millions of Americans rely on absentee voting to make their voices heard. That includes military members stationed out-of-state or overseas, elderly voters with health issues, or people who simply prefer to vote that way. In the 2020 election, a record-high number of Americans voted by mail due to the pandemic.
If the Supreme Court rules in favor of ISL, state legislatures would have unchecked power over federal elections. So even if absentee voting is guaranteed in a state’s constitution, a legislature could restrict it. Such a move would have devastating impacts on millions of Americans, dramatically harming their ability to vote.
2. States could weaken your “right to vote”
This might seem nuts, but the right to vote is not explicitly enshrined in the U.S. Constitution. However, nearly every state constitution does include it. This goes without saying, but the right to vote is a fundamental part of a functioning democracy
State courts have used this right to vote language in their own constitutions to strengthen and expand voter protections. However, if ISL advocates get their way, these additional protections could become empty words when it comes to federal elections. Without the stronger voting guarantees enshrined in state constitutions, voters will be left with whatever protections politicians decide to give them, or whatever rights the U.S. Supreme Court decides to enforce – a list that grows shorter by the year.
3. Ranked Choice Voting’s momentum could be stopped in its tracks
Ranked Choice Voting (RCV) is the fastest-growing anti-corruption reform in the country. It’s a simple change to our elections that allows voters to rank candidates in order of preference and ensure winning candidates receive majority support. It also eliminates the “spoiler effect”, giving independent and third-party candidates a legitimate chance to win.
Right now, 13 million Americans live in places that use RCV for their elections. That includes 62 cities, counties and states across the country. Since 2004, there have been more than 500 RCV elections with more than 20 million ballots cast.
But if the Supreme Court endorses ISL, it could be easier for state politicians to ban RCV. Even if the voters approved RCV statewide, like they did in Alaska, there’d be nothing stopping politicians from overturning the will of the people.
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4. Your right to a secret ballot could be lost
Much like the right to vote, the right to ballot secrecy is not included in the U.S. Constitution. Instead, this right has been enshrined in state laws and constitutions. While many Americans are vocal and proud about who they vote for, ballot secrecy is a crucial right to privacy that should be guaranteed to all Americans. Without ballot secrecy, voters could be subjected to all kinds of harassment and pressure from partisan interests.
ISL would enable states to do away with this crucial right. This could give bad actors free rein to target their opponents’ supporters and set the stage for widespread discrimination. Already, there have been numerous cases of attempted voter intimidation in America during the last election cycles.
5. Partisan gerrymandering could (somehow) get even worse
Partisan gerrymandering is one of the worst forms of corruption in American politics. When politicians are in control of the process, they can essentially guarantee that their party wins elections. As a result, our elections are getting less competitive. In 2020, less than 40 out of the 435 congressional races were competitive. This gives Americans much less choice in who represents them in Congress.
One of the best tools to fight partisan gerrymandering is with independent redistricting commissions. This takes the map-drawing process out of the hands of partisans and gives it to a nonpartisan or bipartisan group of professionals. In the last 10 years, RepresentUs and our allies have passed strong anti-gerrymandering laws in states including Colorado, Michigan and Virginia. And the data is clear: states with commissions draw fairer maps.
However, ISL would enable state legislatures to ignore these laws passed by the voters and give politicians the greenlight to gerrymander. This would further disenfranchise millions of Americans and allow politicians to choose their own voters instead of the other way around.
Despite these threats, we know that when the American people come together, we can win. Join us in 2023 to protect our hard-fought victories and continue passing laws that give the American people the strongest voice in our government.
Contributors: Adam DuBard, RepresentUs Writer, Anh-Linh Kearney, RepresentUs Research Analyst