Norm Eisen: Following midterms, threats to democracy remain

Experts warned that democracy itself was on the ballot during the Nov. 8 midterm election. 

In Michigan, Republican election deniers were nominated for all three top statewide posts — Tudor Dixon for governor, Matt DePerno for attorney general and Kristina Karamo for secretary of state — and at least 54 candidates ran for Congress and the state Legislature.

Those top Republicans were defeated by Gov. Gretchen Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson and Democrats clinched power in both the state House and Senate for the first time in decades.

But that doesn’t mean the threat is gone, experts say.

“This ideology is showing no signs of going away,” former Ambassador Norman Eisen told the Michigan Advance in an interview this week. “We’re going to have to fight this battle for the heart and soul of democracy again, in every election cycle.”

Eisen, a longtime election lawyer and expert on law, ethics, and anti-corruption, once advised former President Barack Obama on ethics and government reform before acting as co-counsel for the House Judiciary Committee during former President Donald Trump’s first impeachment trial in 2020. He told the Advance that although there were certainly wins for democracy on Nov. 8, it would be ill-advised for Americans to let their guard down.

“I think we just need to gird ourselves. … With the prevalence of this election-denying ideology from coast to coast, this is a threat that we’re gonna have to cope with in every cycle — in Michigan, nationwide and, of course, at the federal level,” Eisen said.

Although Whitmer, Nessel and Benson were all reelected over their GOP election denier challengers, the Advance has found that at least half of all incoming state GOP lawmakers are election deniers.

Having Democrats taking the reins in both chambers may tamp down on their ability to act now, but election deniers’ presence still looms large within GOP caucuses and could threaten to undermine future election cycles, Eisen said.

“Certainly, we have to celebrate the rejection of this ideology in many key places in 2022, and Michigan was a highlight of that,” Eisen said. “But as your own reporting has pointed out, more than half of the GOP legislators who were elected are election deniers.

“So we have this as a persistent problem, and who knows what they will do if they get a hold of the Legislature. Even in a minority posture, you can still do a great deal of harm.”

On Monday, the bipartisan Michigan Board of State Canvassers voted unanimously to certify the results of the Nov. 8 election. Two years prior, one of the two Republicans on the board — GOP activist Norman Shinkle, who ran for and lost a state House race this cycle — had abstained.

Republican Vice Chair Aaron Van Langevelde voted with the two Democrats, certifying the 2020 election results in Michigan.

“It really all rested on the shoulders of Van Langevelde,” Eisen said. “He did the right thing. And the Michigan Board of Canvassers just did the right thing again.”

But when the U.S. House is faced with doing the same task on the federal level in January 2025, while most of the GOP majority are election deniers: “Will they do the right thing?”

“This is an anti-democracy ideology that is against the fundamental ideas of what America is,” Eisen said. “As long as there are these thousands of adherents of this ideology out there, many in government positions or positions of influence in political parties, that’s a threat.”

He added that in 2024, the two leading GOP presidential contenders — Trump and Florida Gov. Ron DeSantis — are also election deniers.

Another threat that looms is a case before the U.S. Supreme Court. Moore v. Harper. An argument put forth by North Carolina Republicans would, if fully embraced by the right-wing majority court, allow state lawmakers to be the final arbiters of election results.

This result would have massive electoral consequences and all but upend the process, while likely reversing recent advances in voting rights.

Fred Wertheimer, president of the Washington, D.C.-based nonprofit and nonpartisan group Democracy 21, told the Advance on Monday that he does not expect this outcome but is still concerned, given the makeup of the Supreme Court.

The plaintiffs in the case base their arguments on what is known as the Independent state Legislature theory, an obscure legal theory that Wertheimer refers to as a “just plain illogical.”

“This is an absurd position,” Wertheimer said. “For a long time, this was viewed as a fringe, right-wing legal concept.

“Any normal Supreme Court would throw this out, but we have a different Supreme Court today,” he said, but added that he believes the chances are “reasonably good” that the court will still reject the theory.

U.S. Supreme Court to consider case that could radically reshape the country’s elections

“Let’s put it this way. Any Supreme Court Justice who takes any reasonable view of the Constitution and the laws would never support this theory,” Wertheimer said. “In order to support this theory, you have to be ideologically controlled, partisan controlled and unconcerned about what the actual rules of law are.”

If the court did accept the theory in its entirety, it would be “extremely damaging for democracy,” he said.

Doing so would be interpreting the U.S. Constitution to say that a state Legislature is supreme and cannot be reviewed by a state Supreme Court in election matters. With Legislatures being the sole state entity to regulate federal elections, whichever party is in control of a state Legislature could pass redistricting or voting rights laws that violate the state constitution.

The state court system would be barred from doing anything about it, making Michigan lawmakers the final arbiter of election results.

“In Michigan, the ultimate decision maker about the meaning of the Michigan State Constitution is the Michigan State Supreme Court. This would dramatically change it and say the ultimate decision maker is the state Legislature, which would be completely out of whack with anything anyone has ever done in the court system,” Wertheimer said.

“That’s just plain illogical, but that’s the danger involved here if the court makes the wrong decision.”