At a rally in Pennsylvania recently, Donald Trump said, “You know, they do polls on this stuff, and I’m at like 93 percent. So why are we having an election? They didn’t have an election. Why are we having an election?’”
It’s a scary question when we consider that the next president of the United States might very well be decided by an unelected conservative supermajority on the Supreme Court.
My guest on this week’s WhoWhatWhy podcast argues that the six weeks following Election Day 2024 could be more consequential than the entire campaign season.
David Daley, author of the new book Antidemocratic: Inside the Far Right’s 50-Year Plot to Control American Elections, foresees a looming crisis that could dwarf the chaos of the 2000 election.
Ground zero for this assault on American democracy: a concerted effort to place ideological partisans on putatively nonpartisan county election boards, setting the stage for unprecedented post-election turmoil.
Daley contends that what we’re witnessing is the payoff of a half-century conservative campaign to reshape America’s electoral landscape. He takes us into the intricate web of legal and political machinations that threatens the very foundations of our democratic process.
As this brutal election season approaches a climax, he issues a call to action for what could be the most contentious post-election period in modern history.
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(As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to a constraint of resources, we are not always able to proofread them as closely as we would like and hope that you will excuse any errors that slipped through.)
Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. As the 2024 presidential election looms on the horizon, a perfect storm of legal, political, and social forces threatens to reshape the very foundations of the American democratic process. While Democrats bask in the afterglow of the successful convention, my guest today warns that what happens in the six weeks after election day may be even more critical than the campaign itself.
The election denial we witnessed in 2020 may have been just the tip of a very dangerous iceberg. David Daley, in his alarming new book, Antidemocratic, argues that we’re facing a potential crisis that could make the disputed 2000 election look like a minor hiccup in comparison. He warns of post-election chaos that could drag on for months, fueled by partisan actors strategically placed in county election boards, but Daley’s concerns go beyond just the immediate election aftermath.
He contends that we’re dealing with a renegade ideological court, one that’s the culmination of a half-century-long conservative campaign to reshape America’s electoral landscape. Perhaps most alarmingly, Daley suggests that our focus on these legal and political machinations is diverting attention from the ongoing erosion of voting rights themselves. Good poll numbers and convention success notwithstanding, he believes that we need to be afraid, be very afraid of the mechanics that make our democratic process work.
This isn’t new territory for Daley. He’s the author of the national bestseller Ratf**ked: Why Your Vote Doesn’t Count. He’s a senior fellow at FairVote and a former editor-in-chief of Salon.com. His work on gerrymandering and voting rights has appeared in numerous publications, including The New Yorker, The Atlantic, and The Washington Post. It is my pleasure to welcome David Daley here to the WhoWhatWhy podcast to talk about Antidemocratic: Inside the Far Right’s 50-Year Plot to Control American Elections. David, thanks so much for joining us once again.
David Daley: Pleasure to be here, Jeff. Thanks for having me again.
Jeff: Well, it is a delight to have you back. As we look out, David, at the upcoming election, it seems that we see two very distinct dangers. One is the fundamental issue of getting people to vote and of allowing people to vote and the impediments that numerous states have put in the way of voting. The other issue is this growing fear, which, frankly, I hear more about every day, of what the post-election situation might look like and the way that has been compromised. Talk a little bit about whether or not you see a nexus between those two things, and if so, what is it and how long have we been leading up to this?
David: That’s a great question, Jeff. You could write several books in response. Let me try to be brief because we’re going to have an election in November in which probably about 180 million Americans are going to vote. And the period that matters most might be the six weeks after that election. When we go through the long process of certification [at the] county and state levels, a process that many Americans didn’t know anything about until it became so contentious back in 2020, all of which leads up to the meaning of the electors and the electoral college in the middle of December.
And if that process turns chaotic, and there are many, many scenarios one could imagine in which these questions become litigated or get bogged down in state legislatures themselves of which are deeply partisan, whether states refuse to certify, whether states put forth alternate electors, whether the process has become so drawn out in some states that we are approaching the deadline for certification and the matters are still in the court’s hands and the states decide that they want to step in and appoint electors, then all bets are off.
And this election could end up before the US Supreme Court where Americans don’t matter much at all. The nine who sit on the court will be the ones whose voices and votes matter most. And this is, in many ways, a danger of a repeat of what we all saw in 2000 with the Bush v. Gore case in which the US Supreme Court effectively shut down the Florida recount with a five-four party-line vote that installed George W. Bush in the White House after Florida came down to about 545 votes.
And this was proof of concept for the conservative legal movement that when you hold the US Supreme Court, you have the tiebreaker in American politics. And not only do conservatives still hold the US Supreme Court, but they’ve placed three of the lawyers from George Bush’s team in 2000 as justices on that court in the Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. So Republicans, conservatives, look awfully good if this does turn into a question where nine votes matter.
Jeff: And to the extent that the court is forced to make a decision with respect to this election, talk about what the issues are that you can imagine being litigated before the court given the system as it is set up now.
David: I think really what we’re looking at would be a repeat of the Bush v. Gore case in which a state is dramatically close, that there are a series of recounts, and then there are disputed certifications perhaps as well at the county level where conservatives who have been placed on these boards in the last couple of years, perhaps refuse to do their jobs and then have to get hauled into court themselves in order to have certifications actually issued.
And all of this could take time, time that will be in really short supply because there’s only six weeks between the election and the meeting of the Electoral College. And states have a process that they have to go through in order to confirm results and state legislature towards governors. Secretaries of state [are] often involved in that process, but it has to reach them first. So all of this is going to be on a really tight clock and that clock doesn’t favor those who want to see this happen easily.
Those who want to slow the process down will understand full well that the clock is in their favor. And what the court said in Bush v. Gore, if you go back, if you look at the key footnote in Chief Justice Rehnquist’s decision, what Rehnquist says is that, absolutely, the state of Florida would’ve had the right to appoint electors had there been no certified electors leading up to this deadline because Rehnquist says that the state legislature in Florida had the interest in being sure that the state’s voice was heard at the electoral college.
So the scene that I would posit would be [to] take a look at a state like Georgia or a state like Arizona or Wisconsin, some of these states that were within 10,000, 15,000, 20,000 votes in 2020, states that have gerrymandered Republican legislatures with big MAGA caucuses. And imagine that the result has been really slowed down in those states. What do you think those state legislatures are going to do come December 10th, December 12th? They may well vote to send their own slates of electors onto the electoral college regardless of how those states voted on November 5th. And I think that is the scenario we have to be really concerned about.
Jeff: And this comes back to the issue of voting rights itself. What is your sense of the way in which the election turns out having a role in how far these people, the courts, and the individual voting officials in the various states, how far they’re willing to go? If the election appears to be close, it’s one set of actions. If the election appears to be a landslide, perhaps another set of actions. Talk about that.
David: I think that’s right on. In 2020, the election was not close enough for this kind of chicanery to actually amount to anything, and the courts knew that it would be a dead-end. But if you’re looking at one state in 547 votes like Florida was in 2000, I would suggest all bets are off. In many ways, the best outcome for an easy certification and ratification would be a landslide one way or the other, in which the results are simply beyond dispute.
Jeff: Even in those cases where it appears to be beyond dispute, certainly, a lot of these activities could be taken by officials in places like Arizona and Georgia, for example.
David: Yes, I think that’s right. I think we need to understand that, certainly, on the Republican side right now that they are very actively getting ready for that six-week period. The Republican National Committee under the leadership of Trump’s daughter-in-law, Lara, is already either fighting or a party to or has filed amicus briefs in more than 75 different cases in 24 different states. So the jockeying for that post-election period is already well underway. And in 2020, it was a little bit of a clown car, right? It was Rudy Giuliani holding his press conference in front of the Four Seasons [Total] Landscaping in Philadelphia and turning into a viral joke.
Republicans have got much better lawyers this time. They are better funded. They’ve got some of the real white-shoe firms in Washington, DC, loaded with former Supreme Court clerks working on these cases. It’s much more central to the heart of the party’s operation than it was. And, of course, as you’ve mentioned, they are set up and organized even at the county certification level. So, in many ways, they’re better prepared for this fight in 2024 than they were in 2020 when it seemed like a slapdash operation.
Jeff: There’s also the question of resources in the sense that there’s more and more talk about what we’re discussing now, this post-election period. And it seems that a lot of attention has been taken away from some of the fundamental issues with respect to voting rights itself. Talk about that.
David: Yes, I think that what we have really watched from the Roberts court over the last decade-plus has been a real retrenchment, a real evisceration of the Voting Rights Act, which, in every way, has been the most successful and important civil rights legislation in American history. The Voting Rights Act is what breathed actual life into the Reconstruction Amendments to the Constitution that assured equal protection under the law that ended slavery, that gave Blacks the vote, but that, in many ways, the US Supreme Court and the federal government walked away from enforcing during that brutal period of Jim Crow.
And John Roberts, I would suggest that his life’s work, in many ways, has been unraveling the Voting Rights Act. He comes to Washington as a young man in his mid-20s, fresh off of a clerkship at the Supreme Court with William Rehnquist. And the first task he takes on is trying to argue against the Congressional reauthorization of the Voting Rights Act, the version in 1982, because John Roberts writes that he does not think it should be too easy to prove a violation of the Voting Rights Act. And indeed, on the US Supreme Court now as its chief justice, he has made it harder in every single way.
The crucial enforcement mechanism of the Voting Rights Act was Section 5. It was called preclearance. And what it meant was that the states that had the worst history of racial intent and suppression of votes, they were effectively on probation. If they wanted to make any change to their voting laws, they had to go to the government. first. They had to go to the Department of Justice and demonstrate that their intentions were clean and pure.
And Roberts ends this in 2013 in the Shelby County case. He says that things have changed in the South, that it is no longer needed. And he was not only wrong, he was dangerously wrong. It only took an hour for the state of Texas after that decision came down to enact its draconian voter ID bill that Texas had been banned from enacting previously because the state fully admitted that it would prevent 600,000 Latino citizens, registered voters, from casting ballots because they lacked the necessary ID. The state had gone out effectively and researched what ID these people did not have and then required exactly that.
And what happened in Texas did not stay there. It spread across the South. It spread across those states: Georgia, Mississippi, Louisiana, Alabama, and outwards. And all of a sudden, once John Roberts removed the prison guard of preclearance, all of those evil dark forces in American politics that John Roberts assured us were no longer there, they ran out. And I think we have seen them not only in the kinds of policies and voting procedures that have been changed across the South, but I think they have really shown up in the Trump movement, and the current state of the Republican Party has an awful lot to do with what the chief justice unleashed.
Jeff: Do you think that there has been sufficient pushback, sufficient awareness, I guess, and pushback to all of this? I mean, as you talk about in Antidemocratic, this has been a slow, gradual process on the part of Republicans, John Roberts, the Federalist Society, and that really because it has unfolded the way it has, it’s really been hard to find the fulcrum to fight against it.
David: I think that’s right. I think sometimes big dramatic change, when it is enacted with a patient long-term plan as the Republican effort in the courts has been, sometimes it’s like the frog in the pot that’s boiled ever so slowly by just turning up the temperature by degrees and we don’t even notice. And that, in many ways, has been the genius of the Republican effort. They’ve identified the pressure points in American politics that can be taken over and that have extraordinary influence once you’ve done so.
So I would point to the US Supreme Court as one of those two pressure points and I would point to gerrymandering in state legislatures and the US House as the other. And once you’re able to change those rules and put your people in place on lifetime tenure on the court and gerrymandered noncompetitive districts, it becomes very difficult to get those people out of place.
They are there forever and they are effectively unaccountable and insulated from the people and that is very hard to defeat. Certainly, the president right now is talking about a handful of Supreme Court reforms, whether they’re ethics reforms or term limits, [and] I think a lot of that is a good start. But the problems that have been baked into our anti-democratic judiciary and state legislatures, they are severe, they are long-term. The knots are tied pretty tight. I think it might require more heavy medicine than that in order to really undo them.
Jeff: But even looking at the reforms that Biden has proposed, the reality of those reforms is essentially non-existent. And as you say, those are pretty tame relative to what’s probably really needed.
David: That’s the genius of taking over the system like this because, now, it is extremely difficult to get those reforms through [the] House that Republicans are going to have advantage in for sometime, through a US Senate that is so structurally imbalanced that it certainly favors the interest of conservative, rural, whiter, smaller states. And then even if you’re able to get those reforms through both Houses of Congress, pass the filibuster, they would then have to clear muster of the very justices that they’re trying to rein in. So this is, in many ways, a hermetically-sealed circle and trying to crack it open is going to be very difficult.
Jeff: Talk about that and ways that you could imagine that it might be possible, not to crack it open but at least to create some fissures there.
David: Yes, I think we do have to find a way to breathe a little bit of air into that circle. Certainly, we should be starting with term limits and ethics reforms, and these are very popular among the American people. The idea of Supreme Court term limits, one, just about 75 percent support from a Fox News poll earlier this year. So this might seem like a big difficult thing to enact, but the American people understand the common sense behind it.
And I think they understand the common sense behind these ethics reforms as well, particularly as the news is filled with the stories of the justices taking lavish vacations or having their lifestyles supplemented with millions of dollars from donors who have interest before the court, who are paying tuition for their families and friends, or buying real estate associated with the family.
I think that’s the kind of corruption that Americans understand very well and despise no matter what side of the aisle you might be on, but I do think we have to talk about how we might expand this court. The number is not set at nine in the Constitution. The number has gone up. It has changed and it could change again. We could do so in such a way as to try to really ensure the independence of the judiciary.
We could expand the pool of judges that hear cases at the Supreme Court level to the entire federal judiciary and simply draw a random assortment of justices for each case as often happens when you are putting together a three-judge panel at the federal level. We could see more from Congress with regards to stripping jurisdiction of the court to rule on certain issues and saying that Congress is where these questions ought to be decided, that what we’re seeing right now is a court that is awarding itself more and more power.
We saw that in the last term in the Chevron case in which the court effectively gutted the ability of the executive in Congress to delegate power to federal agencies that have the expertise to really manage complicated issues. And it gave that power back to the courts and judges don’t understand these issues. They should not be the ones making these decisions. It ought to be the electeds and, ideally, accountable electeds.
Abraham Lincoln in his first inaugural said that if the US Supreme Court becomes the place that is determining policy on the important issues of the day, then Americans, he said, and I quote, “have ceased to become their own rulers.” And in many ways, we’ve arrived at that moment. And if we do not find a way to rein in a renegade ideological court, we may very well find ourselves no longer our own ruler.
Jeff: Based on the idea sometimes put forth that things have to get worse before they get better, does this situation that we’re facing post-election have the potential to make things so contentious, so bad, create so much upheaval that that may be the key to changing this whole process?
David: You could be right. That kind of chaos really terrifies me, that kind of potential for political violence. I don’t look forward to what those six weeks could be if they are that contentious. Twenty-four years ago in Bush v. Gore, the nation really accepted the court’s decision pretty easily. You had a Democratic candidate in Al Gore, who almost immediately conceded and worked across the aisle to put the nation back together again. It’s a very different nation 24 years later. And I’m not convinced that the process would go as smoothly, that the decisions would be accepted as easily. So things could get really bad.
If things get that bad, can they get better? Yes, but they can also continue to get worse. So I do think that we need to be thinking really seriously about how we can reform these processes so that this doesn’t keep happening because what we saw in 2020 has the potential to be even worse in 2024 and we have to get a handle on it. We can see what the pressure points are. It shouldn’t be that complicated to fix. It is going to take people of good faith coming together in order to do it.
Jeff: David Daley, his book is Antidemocratic: Inside the Far Right’s 50-Year Plot to Control American Elections. David, I thank you so much for spending time with us.
David: Thank you for having me on again, Jeff. Really appreciate it.
Jeff: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.
