John Ahlen: How will the new election laws be used?

Guest Commentary

When I heard that a suburban Little Rock legislator was quoted in The New York Times, I grew mildly curious. A quick search led to the article, “How Republican States Are Expanding Their Power Over Elections.”

The few paragraphs about Arkansas described the new legislation enacted by Arkansas Republicans “that allows a state board of election commissioners — composed of six Republicans and one Democrat — to investigate and ‘institute corrective action’ on a wide variety of issues at every stage of the voting process, from registration to the casting and counting of ballots to the certification of elections. The law applies to all counties, but it is widely believed to be aimed at Pulaski, one of the few in the state that favor Democrats.” The Times reported the sponsor of the new law “said it was necessary to remove election power from the local authorities, who in Pulaski County are Democrats, because otherwise Republicans could not get a fair shake.” The article quoted him directly as saying, “Without this legislation, the only entity you could have referred impropriety to is the prosecuting attorney, who is a Democrat, and possibly not had anything done.” He was quoted further, “This gives another level of investigative authority to a board that is commissioned by the state to oversee elections.” Lastly, responding to a question about last year’s election, he said, “I do believe Donald Trump was elected president.” Finding and reading the new legislation, the Arkansas Balloting Integrity Act of 2021, confirmed The Times reporting about the new law.

The Times article also reported that Republicans in other states are legislating more vagueness and partisanship into their election laws. Some states are going even further and criminalizing violations of election administration.

Since the Republicans in these states are now better positioned to give Republicans a fair shake, one should ask how the new election laws might be used. The first opportunity to apply them belongs to the incumbents, currently the Trump Republicans, who put them in place. Having legislated more partisanship into the administration of elections, incumbents may have the incentive to use partisanship to hold on to statewide offices and legislative districts in the 2022 and 2024

elections. After all, partisan tinkering with elections is now lawful in these states and, if the incumbent Trump Republicans lose their hold on authority, then Democrats would take over and could use their partisanship to administer the election laws to their advantage.

As one tries to see future applications of the new election laws, one might consider the foreshadowing observed in the wake of the November 2020 U.S. presidential election. While Americans and the world watched, Trump Republicans repeated the fantastical, unsubstantiated narrative that Trump had won reelection as they worked to flip legitimate election results. All they needed to do was change a local election vote tally here and reverse a statewide election certification there to tip the victory from Joe Biden to Donald Trump. Americans and the world watched as Trump failed to persuade state election officials to find him more votes and as Trump Republicans failed to decertify election results that favored Biden. Trump Republicans have revealed how far they will go to flip a legitimate national election. Now they are legislating ways to go even further after future elections.

To paraphrase David Frum, “If Trump Republicans become convinced that they cannot win democratically, they will not abandon Trump. They will reject democracy.” If you think this is farfetched and couldn’t possibly happen in America, remember what happened on January 6.

The context for the new laws is partly defined by two converging trends. The first, a long-term trend, describes the two major political parties accumulating more and more influence over members of their party who are elected to fill positions in, and operate, the government. As a result of this trend, highly partisan agendas are pushed by both parties creating gridlock and crippling effective governing. The second, a shorter-term trend, describes the spread of Donald Trump’s brand of leadership. The result is the increase in the number of Trump Republicans who embody the political style of their namesake. These two trends are reflected in the states with the new election laws: Trump Republicans are granting themselves new statutory authority that gives them greater influence over elections while pushing an agenda that elections are not secure.

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