Category Archives: political parties

How best to safeguard democracy? Two conflicting views on recent display.

I am struck by how forcefully two very different strategies for defending democracy have been advocated this past week.

First, Ian Bassin on The Bulwark podcast emphasized (and I’m paraphrasing here) that the advice he heard from Europeans combatting rising authoritarianism in places like Hungary and Poland is not to let a pro-democracy coalition of center-right, center-left, and even farther-left forces fracture, because then it can’t work together to oppose far-right authoritarianism. (Bassin’s podcast comments draw upon a piece he wrote for The Bulwark.)

Second, Marc Elias on CNN’s Reliable Sources broadcast went out of his way to label Adam Kinzinger “extreme” in his opposition to voting rights, arguing that Kinzinger’s role on the January 6 select committee does not justify treating him as pro-democracy moderate.

Elias, it’s worth noting, was referring to Kinzinger’s response to a question from Jake Tapper on CNN’s State of the Union earlier broadcast. What I heard in Kinzinger’s response, which Elias did not mention, was Kinzinger’s willingness to work with Democrats to craft a voting rights bill that he could support. 

Elias’s approach, which he has also advocated in a recent essay, is to lump all Republicans together, including Kinzinger (and any other pro-democracy Republicans, like Liz Cheney or Senators Mitt Romney, Lisa Murkowski, and others), as the opposition to the Democratic Party’s efforts to save democracy all by itself. This approach would seem to be the exact opposite of what Bassin (as well as the Europeans with experience fighting incipient authoritarianism) urges. 

History, Elias says, will judge how this generation fights the current anti-democracy forces here in the United States. True.  But history might teach that it was a mistake to purge center-right defenders of democracy, like Kinzinger, from the anti-authoritarian coalition that America needs right now—instead of figuring out a way to work with Kinzinger (and others) to build a broader pro-democracy coalition capable of withstanding the present authoritarian threat. 

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Democrats, democracy, and “the Portman problem”

Can one party save democracy by itself? I don’t think so, but that seems to be the view of some, as nicely captured by Ed Kilgore in responding to my blog post How Best to End “Electoral McCarthyism”?

            Kilgore acknowledges: “Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy.”  Further, this reasonable self-restraint on the part of Democrats means, Kilgore continues, their “voting-rights bill imposed by a filibuster carve-out … need not include every conceivable or advisable reform, so as to enable Republican claims of a ‘power grab.’”  Since the reason for my blog post was to explore how to reduce the risk of Republicans repudiating valid election victories by Democrats based on claims that Democrats unilaterally imposed electoral rules yielding results that can’t be trusted, there may not be much distance between Kilgore and me practically speaking. 

            Still, I think it’s worth considering for a moment the idea of Democrats “as sole custodians of small-d democracy.” For how long? The whole point of a fair two-party electoral system is that each party has a good chance of winning. In next year’s midterms Republicans may take back the House, and perhaps the Senate as well, even assuming Democrats unilaterally enact all the provisions in their newly unveiled Freedom of Vote bill. Then what? 

Continue reading Democrats, democracy, and “the Portman problem”
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How best to end “Electoral McCarthyism”?

As regular ELB readers know, I’ve characterized the problem of Trump’s “Big Lie” about a “stolen” 2020 election as an electoral version of the kind of “paranoid” strain of American politics that Hofstadter classified the Red Scare version of McCarthyism to be. Based on the research I did for Ballot Battles, I’m not aware of a historical example (prior to 2020) in which a serious dispute over counting votes was accompanied by the kind of blatant falsification of reality that is the mark of McCarthyism-style demagoguery. Not even the Hayes-Tilden dispute, in my judgment, was of that nature. The combination of McCarthyism-like fabrication of an evidence-free alternative reality with fighting over the results of high-stakes elections (like the presidency or California’s governorship) strikes me as an especially dangerous, and difficult, challenge for the ongoing operation of representative democracy.

Consequently, in the wake of new stories over the weekend on the increasing rise and spread of this kind of electoral McCarthyism, I continue to ponder what might be the most effective remedy for this pernicious development. I’m inclined to think that more attention should be devoted to measures that might help to increase trust among those predisposed to distrust election outcomes, rather than risking reforms that in other contexts might be desirable but under current conditions potentially could fuel the flames of distrust and make the pathology of electoral McCarthyism even worse. In essence, if Democrats were to impose unilaterally even a revised version of HR1/S1 over the unified opposition of Republicans (including those pro-democracy Republicans like Liz Cheney), wouldn’t that increase the likelihood in 2022 and 2024 of Republicans disgruntled with election objects simply saying in essence, “How can you trust the results of elections that were conducted under laws that the other party imposed on us over our unified objection?” Might it not be a smarter strategy to let Republicans write the rules for upcoming elections (as long as they remain within the realm of adequacy in terms of casting and counting votes), and then be able to say to them after they have lost, “Hey, we conducted the process exactly how you wanted it; what possibly gives you a basis for complaining with the result just because you lost?”

To be sure, there is a floor below which it would be unreasonable for Democrats to go. There are minimal conditions necessary for an election to qualify as being small-d democratic. But what of all the “voter suppression” measures that Republicans regrettably have undertaken in the grips of the current electoral McCarthyism actually take us below the floor of the democratic minimum? And how will attacking one of the two major political parties in the nation, currently gripped with this paranoia of Electoral McCarthyism, cure it–and the nation–of this pathology?

In this regard, I had a mixed reaction to E.J. Dionne’s new column. He contends that because of the recent Republican “voter suppression” laws, unless Congress nullifies them through new voting rights legislation, this congressional inaction will leave, “to evoke Abraham Lincoln’s declaration on slavery, a nation half-democratic and half undemocratic.” If this is true, it would of course be necessary to agree with him that Congress must not let this happen. But is his premise correct?

To be sure, before the 1965 Voting Rights Act, it would have been accurate–shamefully so–to describe the nation as “half democratic and half undemocratic”. One of the lessons I learned from my Ballot Battles research was just how much Texas, for example, did not qualify as minimally small-d democratic in either 1948, when LBJ won his key Senate election based on the stuffing of Ballot Box 13 and there was no rule of law remedy in this state for this actual instance of electoral theft, or even in 1960, when Nixon would have had a plausible claim (never pursued because there was still no rule of law way in the state to pursue this kind of claim) that Texas Democrats were at it again on behalf of the JFK-LBJ ticket. But is it really true to say that if the new “voter suppression” laws that have been adopted in Texas, Georgia, and elsewhere remain in effect for 2022 and 2024, then we won’t be able to conduct minimally small-d democratic elections in the United States anymore (as we have been after the enactment and enforcement of the 1965 VRA)? If so, we need to get specific about in exactly what way(s) each state has fallen below the floor of the minimal small-d democratic conducts essential for a democracy–and then what to do if some states have fallen below that floor and Congress fails (as is likely) to remedy that deficiency before 2022 and 2024. Do we categorically condemn in advance all results, regardless of which party prevails, because the elections were not held under minimally sufficient conditions?

In this regard, I’m reminded of Bruce Cain’s important book, Democracy More or Less. In it, he too talks of the floor below which no electoral process can fall and still qualify as minimally small-d democratic. But he also helpfully describes a category above that minimal floor, where contestation over the details of electoral procedures is reasonable and all choices within that range qualify as minimally small-d democratic even if they are not one’s own personal, or one’s own political party’s, preferable policy choices within that space above the floor. To what extent is the nation’s current fighting over electoral procedures above the minimal floor, as Cain describes it, or below the minimal floor, as Dionne would have us fear? To my mind, this is a crucial question as we confront the perils of electoral McCarthyism.

If the fight is to prevent us from falling below the floor, then we must (as Dionne argues) do everything possible to prevent that from happening, including if necessary on a purely one-party vote, and even at the risk of exacerbating the paranoia of electoral McCarthyism and thus the likelihood that accurate election results down the road will be repudiated without any evidentiary basis (but just because of the McCarthyism-like fabrication of an alternative reality). Even recognizing that risk, we have no choice, because (by hypothesis) if we don’t have this fight we lose our minimally acceptable small-d democracy.

But if Dionne is incorrect in his premise, and instead we are in the category of Cain’s reasonable policy disputation above the minimal floor, then I would suggest that our response to electoral McCarthyism should be entirely opposite of the Democrats trying impose over Republican opposition their preferred policy choices about how to run an election. Maybe, if the GOP and the nation weren’t in the grips of electoral McCarthyism, it would be okay for one major political party to impose its own policy preferences on how to run an electoral democracy over the objections of the other major political party (because the defeated party should just accept the reasonableness of the winning party’s preferred electoral policies), although I have my doubts even about that. But when as now the especially dangerous and distinctive paranoid conditions of electoral McCarthyism have taken root, and are growing, it seems as if that kind of one-party imposition of its electoral policy preference upon the other party that suffers from the paranoia of electoral McCarthyism has the potential of being extremely counterproductive. Indeed, it risks propelling forward the possibility of a reaction that would cause the society to fall below the floor of what’s essential for small-d democracy, thereby bringing out the circumstance that is exactly desired to be avoided.

Therefore, if we are in situation of being above the floor, as Cain describes it, we should consider catering to the policy preferences of the party that is gripped by the paranoia of electoral McCarthyism, even if we reasonably do not prefer those electoral policies, in order to help that major political party escape the grip of this dangerous condition. It’s a strategy designed to accept a shorter-term sacrifice in our own electoral policy preferences in order to strengthen the long-term capacity of the democracy to remain above the minimal floor. I’m afraid, however, that the Democratic-controlled Congress is pursuing the opposite strategy, eager to enact its own electoral policy preferences, but potentially exacerbating the risk that electoral McCarthyism actually will destroy democracy down the road.

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Details on the RNC’s future election litigation strategy

Breitbart (ed.: not often linked on the pages of ELB?) interviews Justin Riemer, chief counsel at the Republican National Committee:

The Republican Party has built a “permanent” structure to battle the left nationwide on election integrity over the last eight months and is winning the longer war with Democrats, senior Republican National Committee (RNC) officials revealed exclusively to Breitbart News through lengthy interviews and documents detailing the efforts.

Justin Riemer, the chief counsel of the RNC who is overseeing the party’s efforts, in an exclusive interview with Breitbart News last week, broke down the GOP’s election integrity push into “three separate categories” which include a permanent staffed infrastructure nationwide and a broad law-fare legal strategy to counter Democrats.

“The first is what we’re doing in the courts and litigating,” Riemer said. “The second is sort of our operational organization out in the field to send teams into the states and the third is the more sort of communications and efficacy efforts we’ve made at the state level and pushing back on HR1 and the congressional overreach that we’ve been pushing back with.”

And some stats later in the piece:

A memo the RNC prepared detailing said efforts, also obtained exclusively by Breitbart News, noted the RNC spent more than $30 million in 2020 in dozens of lawsuits — 59 in particular last year — but that the party is expanding and bolstering that legal strategy now heading into the 2022 midterms and eventually the 2024 presidential cycle. Already, the RNC has engaged in at least 19 lawsuits more than a year before the 2022 midterms — with lots more planned on the way. The operation has a multimillion dollar investment from the party as well, and it is a broad effort that the RNC is overseeing in coordination with other party committees like the National Republican Senatorial Committee (NRSC), National Republican Congressional Committee (NRCC), and perhaps most importantly, the Republican State Leadership Committee (RSLC).

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Gerrymandering the Presidency Without a Coup

As much as I’m concerned about the risk that on January 6, 2025 there will a successful subversion of the popular vote caused by an abuse of the procedures set forth in the Electoral Count Act, I’m concerned about other ways that the Electoral College system might be gamed so that partisan manipulation of the process prevents the winner of the 2024 presidential election being the candidate preferred by a majority of the nation’s voters.

For example, I fear the possibility that one or two battleground states might replicate the method of appointing electors chosen by Maine and Nebraska, allocating an electoral vote for each of the state’s congressional districts. If Republicans win the 2022 gubernatorial elections in Michigan and/or Pennsylvania, while retaining control of the legislatures in those states, the GOP might be tempted to make this move there. These are the two battleground states where Biden’s win was largest, and thus the better bet from a purely partisan perspective might be to take a split of the state’s electoral votes in these two bluer states while going for winner-take-all victories in the states that Biden won more narrowly, like Arizona, Georgia, and Wisconsin.

Michigan made this partisan move once before, for the 1892 election, and the Supreme Court approved it as constitutional in McPherson v. Blacker, 146 U.S. 1 (1892). Pennsylvania, among other states, in recent years has considered doing this. And, of course, Maine and Nebraska already use this method. Thus, absent reform of the Electoral College system, the only thing blocking Michigan and Pennsylvania from making this move–if Republicans gain control after the 2022 midterms–would be self-restraint on the part of the Republicans in power. But the main lesson in the aftermath of the January 6 insurrection is that the party’s desire to hold power is greater than its adherence to the democratic norm of letting a majority of voters determine who should hold office.

If Republicans were to win back the White House this way–despite again losing the national popular vote (and despite the fact, let’s hypothesize, that they would have lost even the Electoral College if they had left the existing winner-take-all method of allocating electoral votes in place in those two battleground states)–it would be not be a coup. Rather, it would be an exercise of partisan gaming of the Electoral College process similar to what occurred in the early years of the Republic, including by Virginia for the 1800 election in order to improve Jefferson’s chances.

But it would illustrate just how profoundly undemocratic and susceptible to manipulation the Constitution’s system for presidential elections remains. As Alex Keyssar demonstrated in his masterful Why Do We Still Have the Electoral College?, since the Twelfth Amendment the nation has been unable to amend the Constitution to eliminate, or even reform, the Electoral College despite multiple attempts and popular support for change. And as Jesse Wegman observes in the New York Times, America seems to have lost a capacity for constitutional amendment in general.

The very serious challenge for the country, it seems to me, is how to create a civic culture in which the collective commitment to letting the majority of voters prevail is so strong that a contrary partisan desire to hold power cannot defeat this cultural adherence to democracy. We seem to be moving in the wrong direction in this regard. But we better figure out how to reverse course fast. Because it won’t necessarily take a coup to defeat the will of the majority; all it may take is using the existing procedures enshrined in the Constitution for over two hundred years.

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Michigan Mess: Internecine War in GOP

Politico has a fascinating read on the infighting among Michigan Republicans between Trump supporters, for whom belief that 2020 election was stolen from Trump remains the focus of attention, and traditional Republicans who (like Bill Barr) recognize that this stolen election claim is nonsense. For Michigan, the question is whether this GOP infighting will prevent them from being successful in 2022, especially in the key gubernatorial election.

For those who remember the Tea Party movement of 2010 and 2012, if the GOP veers too far right, Democrats can win November elections that they otherwise would lose in battleground states. Michigan right now would seem an example of this. In their competition with Democrats, it matters what kind of profile the GOP presents to voters. Presumably, the same is true in a state like Pennsylvania.

Conversely, in states that are more right-of-center (like Ohio has become), the dynamic is different. If the GOP there becomes overtaken by obsession over the stolen election claim, there is less likelihood that the GOP will suffer consequences in the November elections. Thus, the consequence of Trump’s takeover of the GOP may differ state to state. One obvious state to watch, given its potential implications for 2024, is Wisconsin.

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NJ redistricting: 13 is an unlucky number this time

“This is the first time the two parties haven’t agreed on a 13th member for congressional redistricting.” That, for me, is the key quote from this report on the need for the state’s Supreme Court to pick the thirteenth member of the state’s redistricting committee.  It’s one more data point on just how polarized the nation’s politics have become, and thus how difficult it is for the two parties to work together on anything relating to the basic structure of the electoral process.

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“A partisan battle in an overreach of a case”: Minority voters are caught between the political parties at the Supreme Court, with the Voting Rights Act hanging in the balance (My SCOTUSBlog Preview of Brnovich)

I have written this analysis for SCOTUSBlog. It begins:

Brnovich v. Democratic National Committee is a strange voting rights case. Rather than the typical case, in which a voting rights group representing minority voters sues a state or locality for engaging in electoral discrimination, this case pits the two major political parties against each other, and Republican officials in Arizona against Democratic officials. Amicus briefs from voting rights groups filed in Brnovich exhibit strong concern about preserving Section 2 of the Voting Rights Act as a tool to tackle discriminatory voting laws. Doing so will be tough before a new conservative supermajority on the Supreme Court….

Generally speaking, voting rights lawyers have been reluctant to push the use of Section 2 too aggressively, likely worried that if a case got to the Supreme Court, the increasingly conservative body would weaken Section 2 protections or even find aspects of it unconstitutional. The Democratic Party seemed to have no such worry, and in Brnovich, the party challenges two Arizona policies that are far from the most egregious voting rights violations. One policy prevents Arizona officials from counting votes when voters accidentally cast them in the wrong precinct; the other bars third party groups from collecting mail-in ballots (a practice pejoratively referred to as “ballot harvesting”).

The Democratic Party’s aggressiveness in using Section 2 in this case, and the deeply split en banc U.S. Court of Appeals for the 9th Circuit decision siding with the Democrats, has provided an opportunity for the state’s Republican Party, its Republican attorney general and the Trump administration (which filed an amicus brief on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways. From an enhanced “proximate causation” requirement suggested by the United States, to a carve-out from Section 2 for laws that affect voter “qualifications” or “time, place, and manner” restrictions for voting, the briefs filed by Republicans look for ways to drain Section 2 of all of its powers to be used in the vote denial context.

It is no wonder then that the brief filed by Arizona’s Democratic secretary of state makes arguments for part of the case to be dismissed on standing grounds and to reject the stingy Section 2 tests proposed by Republicans. A group of prominent election scholars filed a brief asking for the petition to be dismissed as improvidently granted, leaving the lower court opinion in place without making new law. Voting rights amicus briefs argue for preservation of a meaningful Section 2 test for vote denial, and spend little time defending the 9th Circuit’s decision that these particular Arizona laws violate Section 2. Even the Biden administration, in a new letter to the court, does not defend the 9th Circuit’s result; it only seeks to distance itself from the Trump administration’s stingy test for vote denial under the Voting Rights Act.

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“10 Months Later, Iowa Democrats Blame National Party for Caucus Meltdown”

NYT reports.

With Iowa’s closely watched presidential caucuses more endangered than ever after a disastrous showing in February that delayed results for days, the Iowa Democratic Party on Saturday sought to shift blame for the meltdown onto the Democratic National Committee.

More than 10 months after the fiasco marred Iowa’s first-in-the-nation nominating contest, the state party circulated a blistering internal report asserting that the national party had meddled in and delayed the development of an app for reporting results, implemented coding errors in its back-end result reporting system and required new data that further complicated the process.

The renewed sniping between Iowa Democrats and the national party comes at a critical time for the future of Iowa’s standing at the beginning of the presidential nominating calendar. The caucuses are a cherished tradition for Iowans, but an increasing number of national Democrats say they are outdated and undemocratic.

The heart of the 26-page Iowa report blames the D.N.C. for the delay in results on caucus night. It states that the national party, weeks before the Feb. 3 caucuses, demanded a new tool to give it real-time results. This new tool, the report states, included coding errors that delivered inaccurate results, leading to a days-long delay before former Mayor Pete Buttigieg of South Bend, Ind., and Senator Bernie Sanders of Vermont finished in a virtual tie for first place.

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“Local Political Parties as Networks: A Guide to Self-Assessment”

New white paper from SSN working group:

The 2020 election season offers extraordinary opportunities for local parties to welcome new members, grow their ranks, and serve as networks of civic connection. This self-assessment document provides a set of diagnostic questions to help parties to play those important roles. COVID-19 presents unprecedented challenges: contagious disease, economic crisis, and restrictions on face-to-face contact. With these realities in mind, the final section specifically addresses party-building during a time of pandemic crisis and social distancing, presenting strategies that local groups have innovated to carry forward the community-based work that is more urgent now than ever. . . .

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Second Circuit Unanimously Affirms District Court Order Requiring New York to Conduct a Presidential Primary

The order is here. An opinion to follow is promised. “After reviewing the record, we affirm the order granting the application for preliminary injunction for substantially the reasons given by the District Court in its thorough May 5, 2020 Opinion and Order. See Yang v. Kellner, No. 20-cv-3325 (AT), —F. Supp. 3d—, 2020 WL 2129597, at *1–14 (S.D.N.Y. May 5, 2020).”

Update: New York is not appealing the ruling.

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“Democrats move to allow remote voting or a virtual summer convention”

WaPo:

The Democratic Party plans to adopt new rules Tuesday to narrow the scope of its presidential nominating convention, potentially paving the way for either a limited in-person gathering or a virtual event this August.

The proposed changes, which are expected to be adopted in virtual meeting of the party’s rules and bylaws committee, would allow delegates to participate even if they do not attend the convention in person. No final decision on the convention is expected to be made in coming weeks as organizers await a decision by federal, state and local health officials.

The convention had originally been planned for July in Milwaukee, but was moved back a month in hopes that restrictions forced by the coronavirus pandemic would ease by then.

House Speaker Nancy Pelosi (D-Calif.) said over the weekend that she had told Democratic Party Chair Tom Perez that the nearly week-long event could be held over a single day at an outdoor stadium….

By adopting the proposed rule changes Tuesday, Democrats will open the door to another possibility — a much smaller in-person event, which can be attended by some but not all of the nearly 5,000 voting delegates and tens of thousands of other guests.

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“New York Must Hold Democratic Presidential Primary, Judge Rules”

NYT:

A federal judge on Tuesday ordered elections officials in New York State to hold its Democratic primary election in June and reinstate all qualifying candidates on the ballot. The ruling came after the presidential primary was canceled late last month over concerns about the coronavirus.

The order, filed by Judge Analisa Torres of United States District Court, came in response to a lawsuit filed last week by the former Democratic presidential candidate Andrew Yang. He sought to undo the New York State Board of Elections’ decision in late April to cancel the June 23 contest, a move it attributed to health and safety worries and the fact that the results would not change the primary’s outcome.

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“New York Cancels Primary Election, Angering Sanders Supporters”

NPR:

New York Democrats will not be casting primary votes for a presidential candidate this year.

State election officials effectively canceled the presidential primary by removing every Democrat except the presumptive nominee, former Vice President Joe Biden, from the primary ballot.

According to multiple reports, Douglas Kellner, co-chair of the New York State Board of Elections, received thousands of emails from Sanders supporters pushing for the primary to continue as planned.

“What the Sanders campaign wanted is essentially a beauty contest that, given the situation with the public health emergency, seems to be unnecessary and, indeed, frivolous,” Mr. Kellner said.

The primary, originally scheduled for April 28, had previously been pushed back to June 23 due to concerns over the coronavirus.

Voting will continue as planned for New Yorkers on June 23 for congressional and state-level races.

The cancellation will likely make it easier for election workers to manage the other state elections in June during a primary season that has seen unprecedented administrative challenges.

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