All posts by Tabatha Abu El-Haj

Third-Party Politics in American History—A Response to Ned Foley

third parties,

In The Tyranny of the Two-Party System, Lisa Disch writes that the pervasive narrative that the United States is, and will always be, a two-party system is a product of “a reading of history that selects for continuity.” Indeed, historians Erik B. Alexander and Rachel A. Shelden would absolutely agree with both Disch and the Washington Post’s recent assertion that “[f]or much of U.S. history, there were more than two major political parties.”

The prevalence of third-party politics in American history is far greater than many educated observers of American politics today appreciate. In a fascinating new article, Alexander and Shelden argue that the two-party system remained fluid longer than traditional scholarly accounts suggest. The 1850s certainly did not mark the high water mark for third-party politics in the United States. In 1890, as Disch reminds us, the People’s Party won three gubernatorial races and achieved majorities in seven state legislatures. In Congress, a Populist fusion alliance held fifty-two of the 332 seats in the U.S. Congress and three in the Senate. The People’s Party would continue to be a significant player in American politics through the election of 1896.

Returning to this history teaches us both that minor parties have played an important role in American politics, even when they did not win a majority of offices, and that a fairly modest difference in the election system of the 1800s, the ability of parties to cross-nominate, or “fuse” together on the same candidate, enabled the proliferation of ongoing, minor parties that took their role in the process seriously, frequently parlaying their ability to rally a bloc of like-minded voters into political alliances that changed the course of American history.  At this moment when American politics is failing, it is foolish to dismiss, out of hand, this history of third-party politics in America. It is also a major mistake to suggest that the only role that third parties have played in American politics is a spoiler role.

Winning is not the only way to measure the value of third parties. Beyond the relationship of the Liberty Party, Free Soil Party, and Anti-Nebraska Party to the antislavery movement’s success, I can say, based on my research, that the Populists were key to the passage of the direct primary and the initiative and referendum in Western states like Colorado. I suspect historians of the period would give the party a good deal of credit for the Sherman Anti-Trust Act and those early labor laws that the U.S. Supreme Court routinely struck down during the period. More recently, the Working Families Party and Conservative Party have each won significant policies for their core constituencies by delivering crucial votes in close races.

We should also not dismiss this history or denigrate its significance because its greatest potential is at the state level. For one, to measure the importance of third parties in terms of their national success is anachronistic. State and local politics was where governance happened in the nineteenth century.  Even today, it is a mistake to dismiss state and local politics. For workers paid by the hour, where you live matters. Only five states lack their own minimum wage statute. The same is true of paid sick leave and free college tuition. In the two states where fusion voting remains viable, New York and Connecticut, those parties have been critical to the passage of reforms that matter to the sort of people who have real needs and are not preoccupied with politics.

Nothing in this post is meant to take issue with Ned Foley’s basic point: It is preposterous to hope that a third-party candidate will win the presidency in 2024 and save our democracy. But even here, analytic caution is called for. We should not confuse independent candidates with a third-party label with third-party candidates such as James B. Weaver, who, running on a fusion ticket, carried five states on Election Day 1892 on the backs of the People’s Party, which itself became the second-largest party in four states that year, South Dakota, Kansas, Nebraska, and Oregon.

My point is this: We may differ about how exactly to characterize the democratic failures in the United States or their causes, but we cannot deny a few basic facts. Public trust in government institutions is at an all-time low. Authoritarianism is on the rise, as are partisan polarization and unapologetic racism and xenophobia. And the major political parties bear significant responsibility for this state of affairs. This is a time to think big (third parties) and be realistic, prioritizing achievable party-centric reforms—like relegalizing fusion.

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“Assembly as Political Practice”

academic freedom, First Amendment theory

Columbia’s actions this past week, especially its decision to invite the NYPD onto campus, have prompted me to post a new chapter, “Assembly as Political Practice,” forthcoming in the Oxford Handbook of Peaceful Assembly (Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert & Sharath Srinivasan, eds.). Recent events highlight the interrelationship between protest politics and electoral politics, the rise of a new McCarthyism focused on educational institutions, its power, but also the pervasive devaluing of it as a form of politics. Most disheartening to me personally is the widespread perceived reasonableness of Columbia’s actions including among First Amendment scholars. It stems, in my view, from a misconception of assembly as a lesser form of speech and an inclination to over estimate the risks of disorder.

“[A]ssemblies come in a range of . . . forms, including annual parades, smaller political protests, and weekly gatherings of social groups. All these forms of assembly sustain and reinforce the capacity for democratic politics, and their value does not turn on their expressive ends alone. Both the possibility of effective democratic politics, and a proper construction of the right of peaceful assembly, demand that we recognize the value of assembly, as assembly, and its latent and constitutive political functions.”

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“Suppressing pro-Palestinian protests does a disservice to the future of American politics”

Uncategorized, ,

I have long eschewed a narrow conception of democracy as arising solely from electoral politics. I am thus posting my Op-Ed which seeks to draw out the political value of pro-Palestinian assembly, while arguing that debating the words that have been used by students involved with pro-Palestinian groups obscures more than it illuminates. Most importantly, as we have seen this past week, it obscures that “the true threat these campus protests pose is not to their fellow students but to college administrators and their donors . . . [and] that this threat arises not from the words spoken but from the size, scope, and persistence of acts of gathering and organizing.”

“The value and power of assembly have little to do with the message conveyed. When people gather, including when they gather outdoors in the public square for political ends, they rarely, if ever, offer reasoned argument or debate. They chant. They sing. They hold handmade signs. They make demands—frequently ones that are overstated, conflicting, unrealistic and incoherent. Their chants and signs can be clever, but they can also be shocking, hurtful and even threatening. In our liberal tradition, all this is protected so long as it is not an incitement to violence, but it is easy to understand why none of it seems particularly valuable.

What is valuable are the political returns of the act of assembling. Gathering together reinforces social ties and social solidarity. It allows for the formation of collective identities and forges embodied and agentic experiences of citizenship. Assembling is also a politics of presence—one that allows individuals and groups to demand civic and political recognition and inclusion and can upend public narratives, political priorities, social and economic patterns, and, in certain circumstances, regimes.”

Not explored in this Op-Ed is how the McCarthyist reaction to that threat, as others are beginning to notice, poses its own distinct threat to our universities and our democracy.

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“Lawsuit to block Trump from Colorado 2024 ballot survives more legal challenges”

ballot access,

CNN: Colorado judge presiding over the trial rejected on Friday three more attempts by former President Donald Trump and the Colorado GOP to dismiss the lawsuit seeking to block him from appearing as a presidential candidate in Colorado in 2024.

“‘If the Party, without any oversight, can choose its preferred candidate, then it could theoretically nominate anyone regardless of their age, citizenship, residency,’ she wrote. ‘Such an interpretation is absurd; the Constitution and its requirements for eligibility are not suggestions, left to the political parties to determine at their sole discretion.’

Wallace also cited a 2012 opinion from Supreme Court Justice Neil Gorsuch, when he was a Denver-based appeals judge, which said states have the power to ‘exclude from the ballot candidates who are constitutionally prohibited from assuming office.'”

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Resurfacing–Mississippi and LA organizing stories

campaigns, political parties, Uncategorized,

The 24-hour news cycle is brutal even on the Election Law Blog, so I want to use the relative quiet of the weekend to re-surface those articles that I “highly recommend”–to borrow Larry Solum’s phrase.

“Black Voters Have New Power in Mississippi. Can They Elect a Democrat?” First, I just have not been following this election. Second, the story surfaces the long hold of Mississippi’s 1890 disenfranchising constitution on the state’s politics. And third, it strikes me that the very question of whether black voters in Mississippi will turnout for Democrats in the state depends on how the Democratic Party approaches them. How involved will the state’s civil rights group be in knocking on doors? Will any listening occur to concerns beyond Medicaid expansion? And will the party look to build organizational capacity or is this a one-shot voter turnout effort?

The interview with Los Angeles City Council Member Nithya Raman on Our Body Politic. There is just so much in this interview. But probably what struck me most was the description of Raman’s efforts to create a constituency among renters–low-turnout (maybe even apolitical, independent) voters.

“On renters issues in a city where housing and security is an important issue, I was the first candidate who spoke to renters.”

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The year to date: “14 states have enacted laws making it harder to vote, while 23 states have enacted laws making it easier.”

election administration, voting

Voting Laws Roundup: October 2023, published by the Brennan Center, offers an overview of the trends in election law around the country. There is good news, including:

  1. “Nearly half of all states enacted at least one expansive voting law this year.”
  2. “At least four of those states — Michigan, Minnesota, Nevada, and New Mexico — enacted multiple expansive voting laws or an omnibus pro-voter law in 2023.”

And there is bad news, including:

  1. 14 states have adopted restrictive laws.
  2. North Carolina legislature has passed a law restricting voting access and another “undermin[ing] election administration.”
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“Don’t Blame Ballot Harvesting Scandals On Drop Boxes”

election administration

Walter Olson at Cato defends the use of ballot drop boxes. While emphasizes that election integrity risks are largely limited to low-turnout local election, Olson concedes that there are “many genuine reasons to be concerned about the practice of so‐​called ballot harvesting.” Nevertheless, he argues that drop boxes are the solution not the problem.

“If improved security is the goal, we should want to encourage wider use of drop boxes in place of conventional post boxes. . . . Drop box receipt of ballots can readily be made much more secure than postal delivery.”

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“From Bush v. Gore to ‘Stop the Steal’: Kenneth Chesebro’s Long, Strange Trip”

chicanery,

N.Y. Times has an in-depth profile of Kenneth Chesebro.

“Some former colleagues say Mr. Chesebro’s 180-degree turn came after a lucrative 2014 investment in Bitcoin and a subsequent posh, itinerant lifestyle. Others, like Mr. Tribe, see Mr. Chesebro as a ‘moral chameleon’ and his story an old one about the seduction of power.

‘He wanted to be close to the action,’ said Mr. Tribe, who is among 60 lawyers and scholars who signed an ethics complaint in New York that could result in Mr. Chesebro’s disbarment. At Harvard, Mr. Chesebro assisted Mr. Tribe on many cases, including Bush v. Gore, which Mr. Tribe, as Mr. Gore’s chief legal counsel, argued before the Supreme Court.”

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“Mainstream Republicans, ‘Squishes’ No More, Dig In Against Jordan”

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This is a must read from N.Y. Times. It reports on the personal insecurity that those who have opposed Jim Jordan are now facing in terms of threats, menacing calls, and emails. It is the election administrators’ experience all over again. There is a similar Aaron Blake analysis in the Washington Post that looks to evidence that “Trump-era intimidation has had an impact.” Sobering.

“We’re going to get a speaker who represents us all and has supporters who play by the rules,” Mr. Bacon said.”

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“A new and better California Voting Rights Act”

CVRA

This editorial by Steven Hill (Democracy SOS) reflects on the implications of the California Supreme Court’s recent decision in Pico Neighborhood Association v City of Santa Monica–the the first California Voting Rights Act case to reach the state’s Supreme Court in over 20 years. Hill argues the decision is a beacon “for multi-racial, multi-partisan representation . . . if voting rights advocates are bold enough to seize the opportunity.” He explains how:

“The ruling has created an enormous opportunity in California for using proportional ranked choice voting and cumulative voting to settle voting rights cases in a way that opens new opportunities for minority communities, but also for working class and other under-represented constituencies to elect their candidates of choice.”

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House hobbled. Can we call it a crisis of governance yet? And is the Republican Party really a party anymore?

political parties, political polarization

“House Republicans vote to drop Jim Jordan as speaker nominee.” And to be frank, we should be glad of that. As Representative Pete Aguilar said on Tuesday, elevating Jim Jordan, “a vocal election denier and an insurrection insider to the Speaker of this house” would have been “a terrible message to the country and our allies.” It would have sent a “troubling message . . . that the very people who would seek to undermine democracy are rewarded with positions of immense power.” That said, three weeks into the speakership crisis, I am left wondering: Is a party that can win office but is unable to mediate conflicting personalities, goals, and priorities when they hold a legislative majority, really a party at all?

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“Kenneth Chesebro: Second Trump lawyer pleads guilty to conspiracy”

chicanery, Election Meltdown,

BBC News:

Kenneth Chesebro, a former Trump lawyer, has pled guilty in the Georgia case. “Kenneth Chesebro is the third of 19 co-defendants to plead guilty in a deal with Fulton County prosecutors.” His plea follows Sidney Powell’s which was entered yesterday. For analysis see the Atlanta-Journal Constitution, which notes Chesebro is the first defendant to plead to a felony. Early that paper analyzed how Powell’s plea affects the dynamics of the case.

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“Republican states swore off a voting tool. Now they’re scrambling to recreate it”

Uncategorized,

NPR: Misinformation about a bipartisan, cross-state partnership known as the Electronic Registration Information Center, or ERIC, pushed several Republican legislatures to back out of it in recent months. But now, these same legislatures are scrambling to create systems to serve the same function. ERIC, however, took years to develop and relies on confidential DMV information, which is much the most accurate way to confirm that individuals with the same names in different jurisdictions are in fact the same individuals.

“These states are recreating a portion of ERIC, just with less data and less reliable information.”

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