In a free and fair democracy, the rules of the election need to be set before the election, but a few partisan state legislatures have begun trying to effectively change the election results after the fact when their candidates lose—shrinking the powers of newly elected officeholders and sometimes even unseating them altogether. 

Consider events in North Carolina and Wisconsin. Under Republican governors, Republican legislatures there expanded gubernatorial powers while their party held the office. When Democrats won the governor’s races in those states, though, the same legislatures convened rushed lame-duck sessions to strip away executive authority before the newly elected Democrats could take office. In Wisconsin, the legislature waited to see the result of the governor’s election and when a Democrat won, it hurriedly transferred key executive powers to the legislature, restricted the governor’s ability to handle lawsuits, and eliminated the newly created position of solicitor general.  In North Carolina, after a Democrat won the governor’s election, lawmakers abruptly cut his control over key state institutions, including the board of elections, required legislative approval over his cabinet appointments, and slashed his administration from 1,500 employees down to 425—exactly reversing the increase they enacted with a Republican in power.  And more recently last year, after a Democrat was elected again as governor, the legislature called another lame duck session to once more cut back the governor’s powers by making last-second use of a veto-proof supermajority they had just lost in the elections. 

In other words, partisan legislative majorities have retroactively stripped power from elected offices when their political opponents win, in lame duck sessions before the newly elected officeholders can even oppose them legislatively.  Other state legislatures have abused their censure, expulsion, and impeachment discretion to strip away powers from, or outright remove, elected officeholders from the opposing party under circumstances that are basically unprecedented in their states’ history.  The worry is that these incidents will become commonplace in our hyperpartisan and politically hypercompetitive country. 

In a forthcoming Northwestern Law Review article, I argue this type of anti-democratic power stripping undercuts elections and compromises basic principles of democratic accountability by changing the stakes of the election after the election is held, based on the partisan outcome of the election.  These practices are fundamentally unfair regardless of who wins or loses.  Elections must decide what voters and candidates were told they would decide before they were held, or they start to become hollow exercises.  The winning candidate’s newly elected authority shouldn’t depend on which party they’re from. 

Formerly, during the Cold War, both major parties generally respected what Steven Levitsky and Daniel Ziblatt call norms of forbearance—restraint in exercising legal authority for narrow partisan gain. But today’s politics are defined by hyperpartisanship where partisans push the limits of legality, and beyond, to maximize their political advantage. Unfortunately, federal courts have withdrawn guardrails against these threats right as this is happening.  The Supreme Court, for instance, has outright repudiated what has long been understood as a norm of government neutrality as hyperpartisanship hits century-long highs in Congress and spreads all over the state and local levels of government.  This snowballing repudiation of government nonpartisanship threatens to feed the anti-democratic impulses of partisan lawmakers.  

However, I argue there still is a federal constitutional principle, a sturdier one than earlier doctrine, that should constrain state legislatures and is now necessary to fortify before things get worse.  Due process requires that once the government has committed to an election process under a certain set of rules, it must honor the results produced under those rules.  This familiar and intuitive principle is simply that the government cannot change the rules of the election after the election, no matter how much it dislikes the election result.  Indeed, a federal court just invoked this due process principle, in North Carolina of all places, to block a state court attempt there to reverse a state supreme court election by changing election balloting rules after the election was over.  The obvious rightness of this principle, invoked by a conservative Trump appointee against his home state Republicans, shamed the losing candidate to immediately drop his challenge and not even appeal. 

By the same token, I argue that what I call “electoral due process” similarly prevents the government from changing the rules of the election by fundamentally reducing the authority of elective offices after the election.  In my article, I explain why this principle is important and why courts should like it better than previous doctrine that might’ve restrained state legislatures but has been abandoned.  But the basic argument is that this is a simple rule that even young children understand intuitively—the rules of the game can’t be changed after the game.