Texas Republicans haven’t just bought into Donald Trump’s Big Lie about the last presidential election. They’re framing the even Bigger Lie that Trump and his cabal hope to tell about the next presidential election.
If they succeed, Republicans will be positioned to do in 2024 what they could not do in 2020: overturn an election.
Even before voters began to cast ballots that decided last year’s presidential race in favor of Democrat Joe Biden, Trump was saying, “The only way we’re going to lose this election is if the election is rigged.” Trump knew that wasn’t the case, and so did Republicans who echoed his claim. After four years of racism, xenophobia, scandal, and chaos, the president’s failed response to the coronavirus pandemic had sealed his fate. He was going to lose. The point of the talk about a “rigged” election was to prepare his supporters to refuse to accept the results, which Trump’s legal team planned to challenge in the courts, state legislatures, and Congress.
Trump was successful in getting gullible Republicans to embrace the Big Lie—53 percent of them now believe the former president actually won the 2020 election and is the legitimate leader of the country. But he and his lawyers were notably unsuccessful in getting judges—at the federal, state, and local levels—to overturn an election that the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency determined to have been “the most secure in American history.”
Dozens of judges rejected cases brought by Trump’s lawyers. Among the jurists who said no to the disgraced former president were Republican appointees to the federal bench and elected Republican judges in the states. Even jurists who it was feared would look for an avenue to support Trump’s claims refused to do so, to the immense frustration of Rudy Giuliani and the other lawyers for the ousted president. The judges followed the law, which has historically set a high bar for challenging election results.
But what if the law made it easier to mount such challenges? What if the law gave judges leeway to overturn elections based on partisan desires as opposed to proven facts?
That’s the prospect Texas Governor Greg Abbott and Republican legislators in the state have put on the table with their sweeping proposal to rewrite election laws in response to Trump’s ranting about voter fraud. The Texas legislation has gained considerable attention for voter suppression elements that are so draconian that US Representative Colin Allred (D-Tex.) says, “This isn’t legislation. It’s discrimination.” But there is more to the Republican agenda in Texas than the usual scheming to erect barriers to voter participation by Blacks, Hispanics, students, and others who might vote Democratic. What is especially jarring is a section of the plan to make it dramatically easier for a Texas judge to overturn an election result to which Republican “poll watchers”—or former presidents—object.
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Under existing law in Texas, any move to overturn an election result requires “clear and convincing evidence” that fraud occurred. But under the law that Republican legislators plan to enact—in a special session that will be required after Texas Democratic legislators walked out of the regular session, denying leaders of the Republican-controlled state House a quorum—Texas would dumb down the burden of proof.
The new “evidentiary standard” outlined in the proposed Texas law would allow a partisan who is contesting an election result to “prove” their allegation of fraud “by a preponderance of the evidence.” In addition to this far lower standard, the legislation declares that “if the number of votes illegally cast in the election is equal to or greater than the number of votes necessary to change the outcome of an election, the court may declare the outcome of the election void without attempting to determine how individual voters voted.”
Read that last phrase again: “the court may declare the outcome of the election void without attempting to determine how individual voters voted.” What that means is that, on the basis of claims by partisan poll watchers that they saw what they thought to be wrongdoing, a partisan judge could cancel an election result without conducting the sort of review that is necessary to confirm that the alleged fraud actually influenced the result.
Marc Elias, a Democratic lawyer who is broadly recognized as one of the nation’s top experts in election law, reviewed the text of the Texas legislation and determined that if it were enacted, “an election challenger [would] no longer [be] required to show that fraudulent votes resulted in a win.”
Elias says, “When combined with the rest of Texas law, this bill will make Texas the easiest state in which to overturn an election via post-election contest.”
The fight to block this invitation to a constitutional crisis will play out in Texas in coming weeks, as Abbott seeks to call the legislature back for a special session, and as legislative Democrats attempt to identify new tactics for upending the Republicans.
Trump will cheer Abbott on, and Republicans in other states will notice. It would be absurd to imagine that the Texas scheme for making it easier to overturn election results—in 2022 and 2024—will not be exported to other battleground states, such as Georgia, Florida, and Arizona, where Republican governors and legislatures have already been advancing Big Lie strategies for reworking election laws. If enough states open up these new avenues for canceling election results, what Americans saw in the fall of 2020, and on January 6, 2021, will come to be understood as the prelude to a far more serious threat to the republic.
It is impossible to overstate the urgency of the moment. Republicans are no longer gambling on voter suppression to give them the election results they covet; they are now writing laws that open the way for overturning results that go against them.
There is still time to push back against Republican overreach, as Democratic legislators in Texas have been doing. Elias and his team will battle in the courts. But that is an arduous and uncertain task. “We need help,” says the lawyer, who is urging Senate Democrats to approve the voting rights and election integrity protections contained in HR 1/S 1, the For the People Act.
This is an urgent moment, explains Elias. “Our democracy is at stake.”
