Volume 95, No. 2, Winter 2023
By Jonathan Fedors [PDF]

“It’s no longer about who gets to vote; it’s about making it harder to vote. It’s about who gets to count the vote and whether your vote counts at all.” President Biden contrasted the tactics of Republican state legislators in states such as Georgia in 2021 with the tactics of white state and local public officials during the Jim Crow era. He labeled the contemporary tactics “voter suppression” and “election subversion,” respectively.

Under Jim Crow laws, literacy and character tests ensured that many Black citizens in some regions of the country did not vote at all. Contemporary voter suppression laws, by contrast, make it more difficult for people who are eligible to vote to register or cast a ballot, with a disproportionate effect on Democratic voters, communities of color, and socially marginalized groups. And recent election subversion laws empower state executive agencies or legislatures to investigate and punish local election administrators and oversee and overturn local election results. While the House of Representatives went on to pass the legislation that President Biden alleged would remedy voter suppression and election subversion, the legislation failed to pass in the Senate, where Democrats could not overcome the filibuster to end debate.

Election law expert and political scientist Richard L. Hasen identifies this phenomenon of aspiring partisan election subversion as not only unprecedented in American history but also the most important current threat to the electoral system. He compares legislative attempts at subversion to the storming of the U.S. Capitol on January 6, 2021, with the difference being that the former bear a patina of legal legitimacy. According to Hasen, the subversion could take multiple forms. One involves state legislatures directly substituting their choice for the certified choice of the state’s voters. Another involves state and local election administrators abusing their discretion and committing fraud to achieve their desired partisan outcomes.