On Tuesday, it was reported by NBC News that Senate Minority Leader Mitch McConnell continues to recover at a rehabilitation center after his fall at a restaurant in Washington earlier this month. McConnell spoke with fellow Republican Senators over the phone from the facility and “sounded like Mitch,” according to Senate Minority Whip John Thune.
The news brought to mind McConnell’s exceptional instincts as a political calculator, and in particular his past cynical and perhaps prescient deliberations concerning his own health. In 2020, amid reports that McConnell had visited Johns Hopkins in Baltimore after concerning photos were published showing intense bruising on one of his hands, the Kentucky Republican began a campaign to pressure the GOP-controlled Kentucky Legislature to change that state’s law to remove from the governor—who is a Democrat—the authority to select a candidate to fill the unexpired term of a departing U.S. senator. The ability of the governor to appoint a nominee to fill the unexpired term of a senator without restrictions is the law in 35 states.
But McConnell urged, and the Kentucky Legislature took the step of changing that state’s law—overriding the veto of the governor to do so—in a way that assured that Republicans would maintain control of McConnell’s seat should it become vacant.
This effort—to remove powers from elected representatives who are Democrats—has become the new method of disenfranchising voters and maintaining perpetual Republican political power. And it is being undertaken with alarming frequency and speed across the country. This may be the most dangerous and efficient structural attack on our democracy. Its threat, and pernicious ingenuity, lies in its ability to make voting itself irrelevant. Voters may turn out in high numbers and elect their candidates of choice, but if the official is not one whose views align with those of the Republican Party, they may find that their powers of office are removed by antagonistic GOP-controlled legislatures.
We have seen this phenomenon most readily applied to so-called progressive prosecutors who have run successfully on platforms of criminal justice reform across the country. Progressive prosecutors have refused to prosecute low-level marijuana possession crimes, have embraced diversion programs, have opened conviction integrity units to review prior prosecutions for violations of law, and have prosecuted police officers for brutality. For embracing these and other reforms, progressive prosecutors have been confronted with an array of efforts to remove their power. Prosecutors who prosecute or investigate the wrong kinds of criminal suspects in the eyes of Republican legislators have also received this treatment.
Aramis Ayala became the first Black elected prosecutor in the state of Florida when she was elected in 2016 as state’s attorney for Orange and Osceola counties. One of her early announcements was that she would no longer pursue death sentences in capital cases. She argued that seeking the death penalty in homicide cases was draining the coffers of the county, in addition to many other flaws. Indeed, one study found that Osceola County had more prisoners on death row than over 99 percent of U.S. counties. The Republican attorney general of Florida and, subsequently, Republican Gov. Rick Scott and then Gov. Ron DeSantis removed from Ayala all first-degree murder cases and transferred them to a prosecutor in a different circuit.
St. Louis Circuit Attorney Kim Gardner, who won reelection with 70 percent of the vote in 2020, meanwhile, has faced down efforts by the Missouri attorney general, several judges, and the Legislature to remove her power to prosecute felony crimes and to render ineffective her conviction integrity unit. She first entered the crosshairs of opponents when she aggressively sought to investigate and prosecute a Republican former governor for sexual misconduct, allegations that a bipartisan investigative committee found highly credible. Gardner has admitted to making errors in her investigation and was admonished by the bar. Then, after doggedly and ultimately successfully investigating and then advocating for the release of an innocent man prosecuted by a prior circuit attorney, Gardner generated even greater opposition from the Republican attorney general. Now a bill in the Republican-dominated Legislature would remove all serious criminal cases from Gardner’s authority, and the attorney general has filed a petition to remove her from office.
Other prosecutors have faced similar efforts. Fulton County District Attorney Fani Willis, not widely regarded as a reform prosecutor, made the presumably unpardonable decision to convene a grand jury to investigate the effort of Donald Trump to compel Georgia officials to fraudulently award him votes he did not win in the 2020 election. In the wake of what were reported to be “imminent” indictments resulting from Willis’ investigations, the Georgia Legislature passed a legally dubious bill that would create commissions empowered to remove elected prosecutors from office.
Indeed, bills have been filed in more than a dozen states to remove power from reform-minded prosecutors from Polk County, Iowa, to Mississippi. Black women prosecutors have been the high-profile face of the targets of these challenges. But other reform-minded prosecutors have also faced well-financed recall or Republican legislative impeachment efforts since 2020.
This attack on the authority of prosecutors is a rule-of-law crisis, to be sure. Indeed, the virtual silence of organizations like the National Association of District Attorneys in the wake of these attacks reflects a concerning inertia within the profession. But it would be a mistake to see this purely as an attack on prosecutors. It is part of a larger anti-democratic power grab that threatens our democracy by ensuring one-party rule, no matter the outcome of elections.
In Wisconsin in 2018, former Republican Gov. Scott Walker used the lame duck session to sign bills stripping power from the newly elected Democratic governor to change policies around health care, welfare, and economic development, and to allow one of the most gerrymandered Republican-controlled legislatures in the country the right to intervene in certain cases challenging state laws. Walker may have copied this move from the outgoing Republican governor of North Carolina, who, as he departed office in 2016, signed bills—again passed by a heavily gerrymandered Republican-controlled Legislature—limiting incoming Democratic Gov. Roy Cooper’s cabinet appointment power, and ensured that the state elections board would remain under the control of Republicans.
Back in Kentucky, Gov. Andy Beshear has also seen the Republican-controlled general assembly pass bills that strip additional powers long held by governors. The new laws would prevent anyone but the state attorney general (currently Republican Daniel Cameron) from using public funds to challenge the constitutionality of laws passed by the general assembly. Another new law would remove the power of the governor to approve contracts and tax-incentive agreements entered into by the executive branch. Still another, filed on the day Beshear won election, strips away the governor’s ability to select his own secretary of transportation.
Which brings us back to McConnell, who indeed may have patented the modern version of this viral form of voter suppression. It was McConnell who, in essence, removed the power of a sitting president to fill an open seat on the United States Supreme Court when he refused to allow hearings and consideration of President Obama’s nominee, then-Judge Merrick Garland. In essence, the Republicans declared that a Democratic president would be denied the constitutional power to appoint justices to the Supreme Court as long as the GOP controlled the Senate.
One final and important point: We have seen this particular tactic before, in the late 1980s, when a wave of successful voting rights cases resulted in the election of some of the first Black officials in local offices in the South. One such place was Etowah County, Alabama, where for the first time a Black person was elected to serve on the County Commission. Traditionally each county commissioner in Etowah had full power and authority over construction, roads, equipment, and contracts in their commission district. But after the election of the first Black commissioner, the majority-white commission voted that such powers would now be held by the full commission, ensuring that the new Black commissioner could exercise authority only if approved by the majority white commission.
Now this practice of power reallocation, as with all voter-suppression techniques first workshopped on Black communities in the South, has metastasized into a national phenomenon. Unchecked, it will make the act of voting a Potemkin exercise and upend the very concept of representative government. This is an efficiently sinister effort to solidify one-party rule. Its geographic breadth and reach to offices both high and low requires a national legislative response. With Republicans in control of the House of Representatives, the prospects are dim. But this should be powerful motivation for congressional Democrats—and, indeed, for all Americans who wish to live in a democracy—to turn out and vote this year and next, in essence to save the framework of democracy while there’s still time. It should be clear now that for the foreseeable future, democracy remains on the ballot.
