Arizona Court Decision Is Canary in the Coal Mine for U.S. Democracy
In July, pro-democracy activists in Arizona submitted more than 475,000 signatures — twice the amount required by law — to put the Arizona Fair Elections Act on the November election ballot. What happened next was not just a miscarriage of justice, but a canary in the proverbial coal mine for Republicans’ war on American democracy. And it was a terrifying reminder of why Democrats need to get serious about expanding the U.S. Supreme Court before it’s too late.
The proposed ballot measure would have reversed a recent spate of voter suppression laws, diluted the influence of lobbyists and special interests and prevented politicians from overturning election results. Unsurprisingly, it drew the ire of Republican Gov. Doug Ducey and the state’s entire GOP infrastructure.
By the time the legal dust settled at the end of August, the Republican-packed Arizona Supreme Court had thrown out more than half of the submitted signatures. With no explanation of its math, the court erased the voices of hundreds of thousands of voters, rendering the measure a mere 1,458 signatures shy of the qualification threshold.
One needn’t be a recent Arizona expat like myself to be terrified about what just happened there —not only because it is morally repugnant or because Arizona is a potential tipping point state in former President Donald Trump’s inevitable attempt to steal the 2024 election, but also because what’s happening in Arizona eerily foreshadows what lies ahead at the national level.
In May 2016, Ducey signed legislation changing the size of the Arizona Supreme Court from five justices — where it had stood for more than a half century — to seven. The move came after a series of rulings against Ducey and the GOP Legislature’s right-wing agenda. And, in the words of longtime Arizona political reporter Hank Stephenson, it shifted the balance of power on the court “from a more moderate conservative tilt to one…in line with Ducey’s own views.”
Like Arizona’s Ducey-appointed judges, Trump’s U.S. Supreme Court justices are using their seats to rig elections in favor of Republicans.
Ducey, of course, was not the only Republican leader meddling with court sizes for political gain in the spring of 2016. Months earlier, before then-President Barack Obama had even nominated now-U.S. Attorney General Merrick Garland to the U.S. Supreme Court, Sen. Mitch McConnell (R-Ky.) had pledged to block any nominee to replace the late Justice Antonin Scalia — packing the Court through attrition instead of addition. By November of that year, Republican senators, led by Arizona’s own Sen. John McCain, were openly promising to shrink the number of justices indefinitely if they lost the 2016 presidential election. The rest, of course, is history. Today we are ruled by a stolen Supreme Court, a third of which was appointed by a disgraced former president who tried to subvert American democracy.
Arizona still leans red at the state level, but like the country as a whole, it is trending blue — especially in federal elections. In the last presidential cycle, Arizona supported the Democratic candidate for just the second time in more than 70 years. Prior to Sen. Mark Kelly’s (D-Ariz.) victory in 2020, the state had not been represented by two Democratic senators since 1953. And nationally, Democrats have won the popular vote in seven of the last eight presidential elections.
Why do those facts matter? Because, at both the state and federal level, Republicans are determined to maintain power at all costs. And rather than update their views to match the electorate, they increasingly rely on anti-democratic practices and institutions such as the Electoral College, gerrymandering, voter suppression and — crucially — the judiciary.
In my work advocating for expanding the U.S. Supreme Court, skeptics often tell me that the answer to Republicans’ theft of the Court is to win elections. Their argument misses a fundamental dynamic at play — that, like Arizona’s Ducey-appointed judges, Trump’s U.S. Supreme Court justices are using their seats to rig elections in favor of Republicans.
Having shattered democratic norms to hijack courts, the GOP is using that power to impose its policy positions and consolidate its minority rule. They uphold plainly unconstitutional right-wing policies, strike down progressive priorities without the thinnest veil of judicial consistency, make a mockery of Americans’ rights and legal precedent and, as we saw in Arizona in August, they jump at every opportunity to rig elections in favor of Republicans.
Arizona’s top court discarded hundreds of thousands of voter signatures — without explanation — to sink a ballot measure that would expand voting rights and protect future elections. For sheer antidemocratic bravado, that’s hard to top. But the conservative U.S. Supreme Court justices are determined to try. Already they have gutted much of the Voting Rights Act, including by approving some of the very voter suppression measures the Arizona ballot measure aimed to reverse. They have also welcomed partisan gerrymandering and eroded campaign finance laws, among other efforts to put their thumbs on the scales of democracy. But the coup de grace could come as soon as the next Court term.
This fall, the justices will hear Moore v. Harper, a case that hinges on the so-called independent state legislature (ISL) theory. Helen White of the nonpartisan democracy advocacy organization Protect Democracy reports that the case “has the potential to upend over 200 years of election law,” and that “ISL would have sweeping and dangerous implications for most aspects of federal elections.” Vox’s Ian Millhiser calls it “the biggest threat to US democracy since January 6.”
The ISL theory should be laughed out of court. In a bygone era, it would have been. But at the state level, as in Arizona, Republicans have manipulated the size of the state Supreme Court to advance their assault on democracy. Supporters of democracy have a simple choice: They can expand the U.S. Supreme Court, restoring its balance and legitimacy by bringing it in line with the will of the American people, or they can surrender.
Sarah Lipton-Lubet is the executive director of Take Back the Court Action Fund.