All posts by Tabatha Abu El-Haj

“Do We Need to Party Better to Fix U.S. Democracy?”

Didi Kuo and I recently spoke with Daniel Stid, Executive Director of Lyceum Labs about our recent article, Associational Party Building: A Path to Rebuilding Democracy.  Daniel pushed us on the questions such as whether we are calling for a turn away from national politics and how we think about parties past. We reminded party skeptics that they are part of the party already. A lightly edited version of the full conversation appears on the Art of Association.

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“Lawsuit alleges lifetime jury ban harms Black New Yorkers and undermines democracy”

Brigid Bergin (Gothamist) reports on a recently filed federal class-action suit challenging the constitutionality of a New York state law that bars felons from jury service. The suit argues that jury service is a critical democratic practice, and that New York’s lifetime ban “dilutes the voting strength of Black citizens on juries, an institution that is fundamental to democratic self-government and the administration of justice.” The law also “’perpetuates a vicious cycle’ where Black people are underrepresented on Manhattan juries and overrepresented among people with felony convictions.”

The named plaintiff is 44 year-old, public defender, Daudi Justin, who “at least a dozen times each month represent[s] clients faced with misdemeanor charges” in Manhattan Criminal Court. Yet, he is legally barred from serving on a jury. Justin was convicted of a felony when he was 31 years old, served nearly two-years in state prisons, and then went back to get his BA from Columbia University (starting at community college) and now holds a JD from CUNY.

The suit was filed by the New York Civil Liberties Union and Clarick, Gueron, and Reisbaum. As a historical matter, the argument that jury service should be understood as a political right is completely right. As I have written, at the founding and through the early 19th century, jury service was a central political practice, and jury nullification was understood as a critical check on unconstitutional laws.

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The Profound Ahistoricism of Moore v. Harper

The Supreme Court will hear arguments tomorrow about the scope of state legislative authority to determine “the time, place, and manner” of federal elections. Petitioners’ position is that state legislatures are freed from state constitutional constraints when they make decisions about where polling places are located, how many hours polls have to be open, the terms on which early or absentee voting is available, and—most importantly—how congressional districts are drawn. In making these choices, state legislatures, they argue, do not need to abide by state supreme court decisions interpreting their state constitutions.

Election lawyers, constitutional scholars, and interest groups from across the political spectrum have raised significant questions about this interpretation of the Elections Clause. They have questioned the practicality of this so-called Independent State Legislature Theory, and they have raised doubts about the evidence supporting Petitioners’ textualist and originalist claims. Petitioners have been chastised for relying on fake historical documents and for cherry picking quotes from famous nineteenth-century legal commentators.

Few, however, have highlighted the more profound ahistoricism of Petitioners’ position. Petitioners make much of the dearth of evidence of state court decisions striking down state legislation regulating federal elections. But they present no information about how elections were administered for much of the nineteenth century.

Indeed, a reader of the briefs—an earnest law clerk, for example—could easily be left with the impression that elections in the early nineteenth century worked essentially like they do today. Nothing could be farther from the truth. The kind of time, place, and manner regulation at the heart of Moore v. Harper largely did not exist until the late nineteenth century.

Elections through the late nineteenth century were shockingly informal by modern standards. While state constitutions set voter qualifications and residency requirements, there was very little by way of what we would call time, place, and manner regulations. Early elections were festive occasions in which voting took places over the course of several day, often with free drinks. In the early 1800s, states did intervene to replace viva voce voting with written ballots, and by 1868, American Legal Treatise writer, Thomas M. Cooley would assert that “[t]he mode of voting in this country, at all general elections, is almost universally by ballot.” Still, the process of voting was extremely rudimentary.

The first written ballots were simply pieces of paper upon which one recorded a vote. More importantly, even when handwritten written ballots were replaced with printed ballots, it was the political parties who handed them out to voters. Factions of the same party would provide different slates of candidates to voters on their competing paper ballots, and the state played no role in monitoring the process. A few cities eventually required parties to use a single-color paper when distributing ballots. Before 1870, even voter registration requirements were exceedingly rare. Where they existed, they simply required local officials to keep a list of eligible voters.

It was only in the late nineteenth century that state legislatures began in earnest to pass time, place, and manner regulations as we know them. State courts were quickly asked to review the constitutionality of the new laws by partisans. When they did, state courts applied the provisions of their state constitutions–and they did so without distinguishing between the applicability of their rulings to state as compared to federal elections.

An earnest reader of the briefs could just as easily come away with the impression that, like today, Congress was divided into single-member districts in the early nineteenth century and that states diligently redistricted each decade, as required by the Constitution. But it was not until the Apportionment Act of 1842 (yes 1842!) that single-member congressional districts were mandated. At the time of its enactment, there were twenty-six states in the Union. 10 states used at large voting for House elections. Petitioners offer no information about how often states actually redistricted before 1842 (or after). This silence is particularly glaring given that in the period prior to Baker v. Carr, despite the constitutional requirement, states frequently did not redraw their state or congressional maps. In the absence of such information, what exactly can be made of the fact that no state court appears to have invalidated a state legislature’s congressional map on substantive state-constitutional grounds?

Finally, this same earnest reader—this law clerk without a lot of historical background—could easily miss a very basic historical fact: Federal courts did not exercise general federal question jurisdiction, as we know it, until 1875—the end of Reconstruction. This is why state courts were the primary forum for resolving disputes in the nineteenth century.

Petitioners may have answers to the implications of these many historical differences. No doubt their fallback position to the last is that the critical issue is not which court exercised jurisdiction but what constitutional law they apply. But the fact that they have felt free to submit tens of pages of briefing with no mention of the profound institutional changes to the practicalities of our electoral and judicial systems since 1789 is telling about the fundamental flaws of the law office history that drives originalism today.

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“Voting Without State Checks and Balances? A Close Look at the Independent State Legislature Theory”

The New York City Bar Association hosted this excellent panel discussion, co-sponsored by the Brennan Center, in advance of next week’s oral arguments in Moore v. Harper. The panel featured Carter Phillips (Sidley Austin LLP, Counsel of Record for Amicus Curiae Conference of Chief Justices), Tom Wolf (Deputy Director with the Brennan Center’s Democracy Program), and Professor Carolyn Shapiro (author of The Independent State Legislature Theory, Federal Courts, and State Law (forthcoming in the U. Chicago Law Review)). It was moderated by my colleague, Anil Kalhan and spearheaded by Marcy L. Kahn, Chair of the Rule of Law Task Force of the City Bar Association.

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The Limits of Federal Voting Rights Reform

Voting rights are under attack, both by Republican state legislature and by the conservative majority of the Supreme Court. Given Congress’s rejection of voting reforms in January 2022, Didi Kuo and I argue, in our new article, that it is time to reconsider strategies for democracy reform. Our argument, however, is not just strategic. To suggest that reformers need to choose between legislative efforts to secure voting rights and political organizing through parties is obviously a false dichotomy. But it is also the case that too often federal voting rights legislation is presented as a panacea to our democratic ills without sufficient consideration of its limitations as a reform strategy.

First, it is not clear that the sweeping federal reforms that have been proposed would pass constitutional muster. The Supreme Court has reduced the scope of both federal voting rights and federal oversight over voting rights—and, thereby, the extent of voting rights violations by states. There is also a high likelihood that if pushed the Supreme Court would have extended its federalism concerns to its Elections Clause jurisprudence.

Second, reforms to election procedures are not a panacea. Voters should have easier access to the ballot. Redistricting should be less partisan, and there should be greater transparency in campaign financing. But creating uniform federal standards for election administration and increasing voting access would not necessarily reduce polarization or make it easier for congressional majorities to pass policies. Several procedural reforms (eliminating the filibuster or mandating rank-choice voting in party primaries) might have more traction restoring confidence in Congress, but those are rarely part of the package of election reforms and were not part of the package rejected in 2022.

By comparison, political participation as evident from recent high-turnout and civically engaged elections have yielded important policy results at the state and local levels. In 2020, Floridians passed a ballot initiative to raise the minimum wage to fifteen dollars. Tellingly, more Floridians voted to raise the minimum wage than in the presidential election. The stories of ballot initiatives in 2018 and 2022 are similar. Bipartisan majorities have also led to the direct enactment of a variety of election reforms, from Kentucky (which made early in-person voting permanent) to Vermont (which mandated absentee ballots for all registered voters).

Our argument, however, is not that we should have more direct democracy. Our argument is that:

“Mass participation would be more consistently effective . . . if it were channeled through participatory party organizations. Associational parties, as we call them, can do even better than idiosyncratic mass partici­pation to promote the demands of voters and begin to restore the fraying trust between citizens and government in the United States.”

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“Associational Party-Building: A Path to Rebuilding Democracy”

Didi Kuo (Center on Democracy, Development and the Rule of Law, Stanford University) and I are excited to share our new article, Associational Party-Building: A Path to Rebuilding Democracy, which is out today in the Columbia Law Review Forum.

This Piece advances a fundamentally different orientation to democracy reform. It starts from the premise that the ultimate normative goals of democratic reform should be policy responsiveness and the restoration of confidence in government through its functionality. And it looks to ways to achieve those goals without legislative intervention. Voters should have easier access to the ballot. Legislatures must be un-gerrymandered, and economic elites, like hyper-partisan ideologues, should have less influence over politics. But, we argue, procedural reforms do little to ensure government responsiveness. Political parties, by contrast, if systematically strengthened as organizations with deeper ties to voters, have enormous potential to boost not just voter turnout, but democracy itself.

Political parties are the only civic associations with the capacity to organize at a scale that matters and the only intermediaries that both communicate with voters and govern. Yet it is no surprise that many Americans, including democracy reformers, are skeptical about political parties. They seem incapable of performing their basic representative functions. Further, pundits and scholars focus much more on parties as vehicles for funding elections, as policy-demanders, or as heuristic brands governed by political elites, rather than as intermediaries.

Our Piece argues that Americans need to shed their anti-partyism. We explain why Americans need strong parties, how we should conceive of them, and how we might get there. Distilling and further developing an argument I first made in 2019, we explain that reestablishing parties as strong intermediaries with linkages to civic groups and citizens is likely to be an effective strategy, in the long run, for rebuilding trust in democratic institutions overall. Parties with the commitment and capacity to engage in mobilization between election cycles, including through local civic groups, have the potential to bring about the responsiveness essential for democratic governance and public trust. The Piece both articulates the basis for these theoretical hypotheses and offers preliminary data to support them.

In all, we advance a fundamentally different conception of political parties in the hopes of setting a research agenda capable of more systematically testing the hypothesis. Over the next few days, I look forward to sharing more details about our argument.

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What role, if any, might turnout play in explaining the pattern of backlash to the President’s party in the first midterm of their presidency?

Almost exactly a year ago, I expressed skepticism that the Republican Party’s wins in Bucks County in the off-cycle 2021 election “amount[ed] to the GOP roaring back to life in the Pennsylvania suburbs.” In that post, I grumbled that: “No one ever seriously discusses turnout” when making predictions, and I remarked that “[w]e would have to see next year’s midterm turnout drop to 2014 levels for the 2021 election to be a useful benchmark of GOP support in the state.”

So here we are, one year later. Democrats in Pennsylvania captured both state-wide offices, kept their hold on three competitive House districts that many feared would flip, and seemingly secured the very slimmest majority in the state’s lower house for the first time in over a decade. They held on to suburban voters, and those voters turned out at high rates—as one might have expected based on the fact that high SES, college-educated individuals are consistent voters.

Democrats in Pennsylvania did much better than expected, as they did in Colorado and elsewhere. But this was not true not everywhere. The President’s party did worse than expected in Florida, but also in New York and Connecticut, and both Beto O’Rourke and Stacey Abrams lost their elections by wider margins than in their previous bids.

It is well-known that states vary a great deal when it comes to turnout. Turnout in a handful of states always outpaces the rest of the country. Minnesota, Maine, Colorado, Oregon, and Wisconsin generally leading the pack, including in midterms.

So, what might we learn if we compared turnout in states where the Democrats exceeded expectations to turnout where their losses were worse than anticipated? The simplest and most direct comparison would be Pennsylvania versus Florida—two consistently competitive states; both of which generally have middling turnout numbers.

Preliminary reports suggest that turnout in Pennsylvania was extremely high. U.S. Elections Project estimates 55% of eligible voters turned out in Pennsylvania in 2022. By contrast, it estimates that turnout in Florida was 49.3% of VEP. In other words, Pennsylvanians turned out at a higher rate than in the 2018 midterm election (which boasted the highest overall turnout in 100 years), while Floridians turned out at rates only slightly above the 2014 midterm (which set the record for the lowest voter turnout since 1942). For those who are curious, both states are capable of high and low turnout: Turnout in Florida in 2018 was 54.3%, and turnout in Pennsylvania in 2014 was 36.5%.

It is too early to have a good picture of how representative the electorate that turned out on November 8 was along axes of class, race, and education. But we do have some early information about representativeness with respect to age. A critical mass of young voters turned out in Pennsylvania, and some argue they were decisive to Fetterman’s victory. Florida’s young voters turned out at comparable levels, but as in Ohio, young voters in Florida are more divided in their partisan preferences than those in Pennsylvania.

The voter turnout story is not simple, however. In Colorado, where Democrats exceeded expectations, voter turnout is estimated to be slightly down from 2018, but hardly bad: Turnout in Colorado in 2018 was 61.4%. This year 57. 9% of voters in Colorado are estimated to have turned out. Turnout was also high in Michigan where it is estimated to have reached 59% this cycle (compared to 57.7% in 2018 and 43.2% in 2014).

In New York, where Democrats did worse than expected voter turnout out was abysmal (42.6%), but nowhere near as low as it was in 2014 (29.0%) and only slightly down from 2018 (45.7%). And, at least, based on the preliminary data, it is hard to see either Beto O’Rourke or Stacey Abrams’ losses as a product of significantly depressed voter turnout.

The conventional wisdom is, of course, that low voter turnout doesn’t matter because the electorate that turns out largely shares the same preferences as those who stay home. I am on record as skeptical about this conventional wisdom.

So, would more systematic attention to variable voter turnout complicated the conventional wisdom that the President’s party always gets a shellacking in the first midterm after their election?  It is hard to tell, but probably, to varying degrees, in different places.

But the real point is: Wouldn’t it be great if we could hold turnout constant in our efforts to analyze the political implications of elections? Wouldn’t it be great if more states were like Minnesota, Maine, Colorado, and Wisconsin and fewer were like New York, Texas and Tennessee (which had the lowest turnout this cycle)?

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Based on popular demand, Trump to return to Twitter

N.Y. Times and everyone is reporting on Elon Musk’s decision to reinstate Trump after polling Twitter. It is so nice to finally have an answer, after all these years, to who “the people” are: 15 million Twitter users. Madison turns in his grave: Talk about a “faction.” U.S. population these days: 331.9 million. Most recent estimate of voting age population: 258,327,312.

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“Ohio Republicans launch effort to make citizen-led amendments harder to pass for voters”

Ohio Capitol Journal reports on a new push to limit direct democracy in Ohio. Following in South Dakota’s footsteps, and just a little over a week after Election Day, Ohio Republicans are talking about pushing an initiative that would require “citizen-led constitutional amendments [to] gain a 60% supermajority at the ballot for passage.” (South Dakota’s effort, which failed resoundingly at the polls, similarly targeted initiatives that would impact the budget). It is frankly not clear to me what the local driver for this initiative is–except that this has become a national trend. In the meanwhile, a proposed House bill seeks to “rewrite the underlying infrastructure of how the state conducts elections.”

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Pennsylvania Update

Philadelphia 3.0 ended the week with an election round-up.

First, it notes, that youth voters seem to have tipped the election toward Fetterman: “According to data from CIRCLE at Tufts University, voters under 29 netted John Fetterman 120,000 votes of his 185,000-vote total.”

Second , it lays out in great detail the parliamentary details that explain why control of the Pennsylvania State House won’t be clear until long after the final districts are called:

“If the 142nd goes to Hogan, Democrats will have won 102 seats to 101 seats for the Republicans, but the chamber would still be split 101-101 in that scenario because the late Rep. Tom DeLuca passed away between the primary and the general election. One important wrinkle in this situation is the open question of whether the General Assembly leadership must be elected by 102 votes, or just a simple majority of those present and voting.”

There is also the added complication:

“It remains unclear how this will get resolved in the short term, since in January, state Reps. Austin Davis and Summer Lee will resign from their seats to take their new positions as Lt. Governor and member of Congress, respectively. Rep. Austin Davis is not required to resign until January 17th. Those two resignations will temporarily reduce the Democrats’ margin to 99-101 for some duration until special elections are conducted to fill the three open seats from the late Rep. DeLuca, along with Davis, and Lee.”

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Breaking News–GA Trial Court Rules Voting May Proceed on Saturday, Nov. 26, in the GA Senate runoff election

Atlanta Journal Constitution reports that a Georgia Trial court has granted the Democratic Party and Warnock Campaign’s request for a declaratory judgment and injunction to allow for early voting on Saturday, November 26. Order is embedded in the article.

“Fulton County Superior Court Judge Thomas Cox decided Friday that state law permits counties to offer voting Nov. 26, finding in favor of Democratic U.S. Sen. Raphael Warnock’s campaign.

County governments may now choose to offer residents an opportunity to vote on that Saturday in addition to five mandatory weekdays of early voting the following week.”

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Updated–It’s Now Official: Kari Lake Will Not Concede

Earlier in the week, I wrote that true to her brand, Kari Lake is refusing to concede in the Arizona Governor’s race. In a video released today, she has raised questions about the election process and emphasized to supporters that she is “busy here collecting data and evidence.” Rumors on Twitter are that she has been seen at Mar-a-Lago. It is now official and those rumors have been confirmed.

“Refusing to concede, Kari Lake, the defeated Republican candidate for Arizona governor, said Thursday she is assembling lawyers and collecting evidence of voters having trouble casting ballots on Election Day as she considers her next move.

Lake, who was endorsed by Donald Trump, traveled to the former president’s Mar-a-Lago club in Florida on Thursday, her campaign spokesman told The Associated Press.”

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“Election Day Problems Inflame Voter Fraud Conspiracies in Houston”

Bolts Magazine has this nice analysis of the way administrative incompetence on Election Day in Harris County is fueling Republican conspiracy theories. Harris County experienced notable (if not necessarily widespread) problems on Election Day: Polls opened late; they were understaffed, and they ran out of paper. The kind of things that drive voters and election lawyers mad. But now the stories are bringing out the truly mad, as election deniers fill meetings waiting “their turn at the mic to chastise county commissioners and local election officials” to rant with quotes from the Book of Ezekiel.

Anthony Gutierrez, executive director of Common Cause Texas, probably has it right:

“There seem to have been some mistakes made but all these investigations and legal challenges are more about manufacturing justifications for new voting restrictions, not about trying to make sure everyone is able to vote in the future.”

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