Reminiscing on Midterm Elections and Reflecting on 2022

Note: Because of a technical problem, some readers may have received this post twice and, if so, my apologies.

It is commonplace for politicians to declare that a coming election is the most important one ever. But I believe that 2022 is truly the most important midterm election ever, or at least in my lifetime.

I got an early start following midterm elections: I recall being quite excited when the Republicans won Congress in 1946. I was only eleven at the time and we were living in a suburb of Chicago served by Colonel Robert McCormick’s Chicago Tribune, a staunchly Republican organ. My keenest interest in the paper may have been its coverage of the Chicago Cubs, but, on the way to the sports pages, I also paid attention to its news and editorials. Nevertheless, Republican excitement over the 1946 elections was short-lived. Two years later, President Harry Truman ran a vigorous campaign against the “Do Nothing 80^th Congress” and to my shock and dismay, and that of my Republican elders, he won an upset victory over Thomas E. Dewey.

Another midterm election I recall came 22 years later in 1966. I was working in the New York law firm headed by Richard Nixon and had a major role in writing the brief for a case that Nixon argued in the Supreme Court, Time, Inc. v. Hill. Nixon argued the case initially in April, 1966, but the Court scheduled the case for re-argument in October. That schedule caused Nixon considerable consternation as it interrupted his campaign for the 1966 midterms—a campaign that he hoped would spark his political resurrection. Nixon interrupted his political schedule for the argument, but was soon back on the campaign trail. His efforts bore fruit and contributed to substantial Republican gains (47 seats in the House and 3 in the Senate).

On election night in 1966, Nixon hosted a small gathering in a suite at the Drake Hotel. (Most of those on hand were political associates, but I was included on the strength of my work on the Hill case.) As it became apparent that the evening was going well for Republicans, Nixon, while stretched out relaxing on a bed in the bedroom, decided to call Walter Cronkite, who was leading CBS election night coverage, to take some credit. So, as some of us watched the television with Nixon, we saw Cronkite disappear, and then reappear to report on what he described as a remarkable conversation with the former Vice President. Nixon got the credit he deserved and 1968 was firmly in his sights.

Turning to the graver subject of the 2022 midterms, the sobering fact is that they may well determine the outcome of the 2024 presidential election. If Republicans should take both Houses of Congress, as seems possible, Biden will be hamstrung in the last two years of his presidency, and able to accomplish very little. He (or whomever the Democrats nominate), might try to follow Truman’s playbook and assail the “Do Nothing 118^th Congress,” but it is questionable whether that strategy would be effective this time, especially when the country has grown accustomed to the polarized state of our politics.

Even more ominous is the possibility that, as a result of the 2022 elections, Republicans will have seized control of many of the state offices, e.g., secretary of state, that supervise elections. The independence and integrity of state and local election administrators thwarted Trump’s attempted coup in 2020, but Republicans have made it clear that they are not willing to tolerate any such obstacles in 2024. Numerous observers have pointed out the determination of Republicans across the country to capture key offices and agencies, installing individuals who are not only political partisans, but who trumpet the Big Lie that Biden somehow stole the 2020 election. By clear implication, they are now eager to steal it back.

A prime target is the office of secretary of state. Writing in the New York Times, Professor Barbara McQuade, a former U.S. Attorney, stressed the key role of secretaries of state in “The Most Pivotal Elections in 2022 Are Not the Ones You Think.” As McQuade explained:

The fate of our democracy doesn’t hinge on the battle for the House or the fight for control of the Senate, but on state elections for a once sleepy office: secretary of state.

No elected officials will be more pivotal to protecting democracy — or subverting it — than secretaries of state. While their responsibilities vary from state to state, most oversee elections, a role in which they wield a tremendous amount of power. Secretaries of state own the bully pulpit on voting, and they control the machinery of elections.

They also have a platform to spread disinformation, such as false claims that voting by mail is not secure. A Republican secretary of state could reduce the number of ballot boxes or polling places in Democratic areas and limit staffing to create long lines that dissuade potential voters. Secretaries of state can also refuse to certify the results in particular counties or even the entire state. In a close presidential race, if the secretary of state in even one swing state were to put his thumb on the scale, we could see an election that really is stolen.

McQuade went on to point out that “Twenty-seven states will choose a secretary of state this fall, and in 17 of those states, at least one of the Republican candidates for the office actively denies that President Biden won the 2020 election.”

Even more fundamentally, Republican legislatures could seek to thwart democracy in 2024 by setting aside election results and choosing their own slates of electors. Two years ago, constitutional scholars found it necessary to explain why state legislatures would have no authority to do so, and no legislature made such a brazen attempt. (See, Grace Brosofsky, Michael C. Dorf and Laurence H.Tribe, “State Legislatures Cannot Act Alone in Assigning Electors.”) Nevertheless, the hope for such radical actions by Republican legislatures was at the heart of Trump’s 2020 post-election maneuvering–and there is every reason to fear that, in 2024, Republican legislatures would not feel similarly restrained. Moreover, there is no guarantee that legislative attempts to supersede the popular vote, would be blocked by the current Supreme Court.

In short, there is a potential threat from rogue Republican legislatures, and that threat provides a powerful reason to elect Democrats to state legislatures in 2022. At the very least, voters should demand that Republican candidates for those bodies pledge to respect the outcome of the popular vote in 2024.