A Democracy Crisis In The Making: May 2022 Edition

This report is a partnership between the States United Democracy Center, Law Forward and Protect Democracy.

One year ago, we published A Democracy Crisis in the Making: How State Legislatures are Politicizing, Criminalizing, and Interfering with Election Administration. We warned that state legislatures were considering a range of bills that would increase the risk of election subversion—that is, the risk that the purported outcome of the election does not reflect the choice of the voters. State by state, legislatures had moved to seize power from professional, non-partisan election administrators and to needlessly expose the running of elections to partisan influence and disruption. As we explained in our initial Report, this trend increases the risk of a crisis in which the outcome of an election could be decided contrary to the will of the people.

Since our first Report, this effort by state legislatures has not receded. In fact, it has accelerated. This year alone, lawmakers have introduced scores of new bills that increase the likelihood of election subversion, whether directly or indirectly. In some cases, the potential subversion is quite direct—for example, bills that give the legislature the power to choose a victor contrary to the voters’ will. In others, the impact is less direct but still dangerous. Some bills would introduce dysfunction and chaos into the election system and could lead to delay, uncertainty, and confusion, all of which could provide cover for subversion.

We issued our first Report less than four months after the January 6, 2021, attack on the U.S. Capitol, itself a violent attempt to subvert the voters’ choice. In that Report, we identified 148 bills that had been filed that would allow state legislatures to politicize, criminalize, or interfere with elections. Today, at roughly the same point in the calendar year, legislatures in 33 states are considering 229 bills that do the same—175 introduced in this calendar year alone and 54 that rolled over from the last calendar year. A total of 50 bills have been enacted or adopted, 32 last year and 18 thus far this year.

Through the bills discussed in this Report, legislators have attempted to exercise insidious control over practically every step of the electoral process. This includes efforts to shift power to legislatures to directly choose and control election officials and to tie the hands of professional local election administrators. It includes subjecting elections to unprofessional and biased reviews, designed to sow doubt about the legitimacy of results. It includes imposing onerous and unrealistic burdens on election administration—such as a requirement to count all ballots by hand—that will introduce errors and delays, which could be used as a pretext for election subversion. In the most extreme examples, none of which has yet become law, legislators have proposed granting themselves the power to reverse election results altogether and to install their own preferred candidates instead.

In many cases, these legislative efforts are as poorly designed as they are misguided, which can make them more dangerous because they are more likely to lead to confusion and chaos. An Arizona bill, for example, requires election officials to document “voting irregularities”—and attaches a possible criminal penalty for failing to do so—without ever defining the term. In Wisconsin, the speaker of the state Assembly ordered an investigation of the 2020 election, run by a former state Supreme Court justice who has stated that he does not have “a comprehensive understanding or even any understanding of how elections work.” In Oklahoma, a bill imagines a 20-person “Election Integrity Committee” to review election results, with no requirement that any of the 20 people have experience in election administration or professional audits.

Each year, state legislators introduce thousands of bills related to elections. One organization, Voting Rights Lab, currently tracks almost 2,500 election-related bills under consideration by legislatures this year, and that number is likely to rise. To create this Report, we relied on the Voting Rights Lab database and supplemented it with other legislative proposals that we discovered via independent research. We included legislation introduced between December 15, 2021, when our last update stopped, and April 8, 2022. We also included legislation from our 2021 Reports that was still active this year. The States United Democracy Center, Protect Democracy, and Law Forward worked together to analyze each proposal to determine whether it would—if adopted—materially increase the risk of election subversion, and to filter out those that we concluded did not meet that criterion. A complete list of the bills that fall within the scope of this Report is included as an Appendix.