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The Death of Democracy in North Carolina

The Death of Democracy in North Carolina

Believing in American Democracy requires some measure of faith these days. Donald Trump won by slim margins in states where Republican Governors and legislatures instituted new voting restrictions, and these restrictions likely provided the margin of victory in Wisconsin if not other states (a good counterargument is here). The Electoral College once again has awarded the Presidency to someone that received far fewer votes. And gerrymandered House districts will give Republicans a 55% majority of the seats in the House of Representatives even when--at most--they only got 50% of those votes. As more votes get counted, don't be surprised if House Democrats ended up getting more votes than their Republican counterparts.

It’s all rather dispiriting, but I am comforted that at least all of these base violations of the basic tenets of representational democracy are not new problems. We’ve been rigging the system in favor of a dominant white, non-urban power since the nation’s inception. I may not like the Electoral College much, but at least the rules were clear to everyone when we started the game, and there’s a good chance we’ll adopt a National Popular Vote Interstate Compact in our lifetimes. I may not like the voter suppression techniques employed by Republican legislatures (and even some Democratic ones in the primaries), but at least these can be remedied through political mobilization and change. And with the right mix of court decisions and some action at the state level, non-partisan redistricting with some measure of fairness could be achieved.

But in North Carolina, there is a scheme afoot that so transcends the basic notions of living in a Democratic Republic, that it deserves the highest level of condemnation I can imagine.

In a very tight race, Republican Governor Pat McCrory has lost to Democrat Attorney General Roy Cooper by around 7,000 votes. That’s a close margin, but given that recounts and further canvassing of votes almost always nets Democrats more votes, the final result is not really in question. Here in Virginia, our 2013 Attorney General’s race was initially certified as having a 165-vote margin of victory for Democrat Mark Herring. After a recount, that number rose to 907 votes and Republican Mark Obenshain ultimately conceded. And who can forget the famous 2008 Senate race in Minnesota, where after months of legal wrangling, Democrat Al Franken was certified the winner with just 312 votes when he initially started out behind.

In North Carolina, a recount seems inevitable, and no one really seems opposed to that. Getting the election results right is in everyone’s best interests. But Governor McCrory’s campaign team has also lodged a series of protests with local county election officials and the state board of elections alleging widespread voter fraud. These boards have been quick to dismiss the charges, bolstered by the fact that these boards are composed of two Republicans and one Democrat.

Normally, it would be easy to dismiss this all as a losing campaign’s last desperate maneuvers. Allege whatever you can, raise money for your legal team, and keep the pressure up and hope something jars loose. But I fear something far worse. As this article from Slate indicates, something far more nefarious may be at play here.   

McCrory can, and probably will, still ask for a statewide recount. But he must know that a recount will not close such a sizable gap. His real goal appears to be to delegitimize the results to such an extent that the state legislature—which holds a Republican supermajority—can step in and select him as the winner. North Carolina state law states that when “a contest arises out of the general election,” and that contest pertains “to the conduct or results of the election,” the legislature “shall determine which candidate received the highest number of votes” and “declare that candidate to be elected.” By alleging fraud, mishandling of ballots, and irregular vote-counting, McCrory is laying the groundwork for the legislature to proclaim that a “contest” has arisen as to “the conduct or results of the election.” At that point, it can step in, assert that McCrory received “the highest number” of legitimate votes, and “declare [him] to be elected.”

The best part? Under the law, the legislature’s decision is “not reviewable” by the courts. Republican legislators can simply step in, overturn the decision of the voters, and grant McCrory another term. The courts have no authority even to review the legality of their actions. 

Again, in a normal world, I would highly doubt that a Republican legislature would be so bold as to steal an election in broad daylight like that. But we live in a different time, where gerrymandering and the makeup of the voting public largely insulates Republicans from being punished for wrongdoing. If you knew the only way you wouldn’t be reelected is for not being Republican enough and losing in a primary, wouldn’t you consider this route?

There is a confluence of factors that make such electoral theft way more likely in the waning days of 2016 than in the past. The rise of fake news means that you can decide on any reality you want—just choose the world in which tens of thousands of votes really were fraudulent and use that to justify any action. Intense gerrymandering means the vast, vast majority of North Carolina legislators can never be punished by the opposing party. And most importantly, North Carolina Republicans have spent years instituting strict voting restrictions just to prevent this kind of scenario—there’s a kind of political inertia to all of this. We know fraud is happening. We tried to stop it. And now we have a duty to remedy the fraud that we’ve already established is happening.  

Do I think this scenario is likely? No, but I also didn’t think the election of Donald Trump was likely either. Even when we are discussing events with low probabilities, we are all forced now to mobilize against worst-case scenarios long before they come to fruition. Will Donald Trump create a Muslim-only registry? I don’t know, but I have to prepare as if it will. Will Republicans repeal (and not replace) Obamacare? I don’t really have a choice but to take them at their word.    

And in North Carolina, I have to take the Republicans at their word. They have legislated their belief that non-existent voter fraud justifies the blocking of hundred of thousands of otherwise eligible voters. I just pray they don’t take that belief to its logical conclusion—that awarding the election to the losing Republican candidate is the right and courageous thing to do. After all, anything less would be letting the fraudulent voters win.


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