Opinion: The attacks on the 2024 election are already underway

States are now emboldened to pass ever more restrictive voting rules, as we have seen in places like Georgia and Texas. Those rules will operate to make it easier for incumbent legislators to stay in power. Instead of a constitutional right to vote, we have a constitutional right for states to administer their elections however they want, with little fear of judicial oversight.

Next, state legislatures are skewing democracy through partisan gerrymandering, as they draw district maps to ensure their side has the best chance of winning a majority of seats. Already, reports suggest Republicans have gerrymandered enough congressional maps to easily flip at least five seats and take over control of the House of Representatives in 2022. Democrats are not blameless on this front, as they have also proposed egregious gerrymanders in places like Illinois. Politicians are choosing their voters instead of the other way around. And states are freer to engage in this gamesmanship knowing the Supreme Court will not intervene, as it ruled in 2019 the federal courthouse doors are closed to claims of unlawful partisan gerrymandering. A gerrymandered legislature cannot be trusted to carry out the will of the voters, which is especially dangerous if there are disputes over Electoral College votes in 2024.

Finally, Trump supporters who believe—without any evidence whatsoever—that Joe Biden did not legitimately win the 2020 election are running for elected positions that will allow them to control the vote casting and counting process. The attempted coup in 2020 did not work in part because Republican election officials such as Georgia Secretary of State Brad Raffensperger refused to go along. Recall that Trump had asked Raffensperger to “find” 11,780 additional votes to allow him to win the state. Raffensperger recognized Trump was asking him to overturn the will of the voters. But if a Trump acolyte such as Rep. Jody Hice, who is running against Raffensperger, wins the seat, who knows if a similar request in 2024 will be rejected. Some state legislatures are also authorizing the potential takeover of local boards of election. Republicans in Wisconsin are reportedly considering a brazen move to disband the bipartisan state election commission, in an attempt to give themselves more authority over elections. Many election officials are leaving their posts in response to a constant barrage of harassment stemming from their work in 2020.

What can be done? First, because the Supreme Court is unlikely to suddenly change its jurisprudence to protect the right to vote, state courts must step in to fill the void to strike down the worst partisan gerrymanders and restrictive election rules. State constitutions have language that explicitly protects the right to vote and many also say elections must be “free and equal” or “free and open,” so state courts should use those clauses robustly. Both the North Carolina and Pennsylvania Supreme Courts invoked state constitutional language to invalidate partisan gerrymandering in their states in the last round of redistricting; other courts should now follow their lead.

Finally, Congress must pass meaningful voting rights reform. The 2024 election should be decided by all eligible voters, not just those who are able to jump through the various hoops states have set up. Republicans should negotiate with Democrats in Congress on best practices for election administration and independent redistricting. And if Republicans refuse to even come to the negotiating table, then Democrats will have the moral standing to go it alone and scuttle the filibuster to enact democracy reform.