Category Archives: political polarization

“NECR Webinar: Overcoming Toxic Polarization and the 2024 Election”

Aug. 29 webinar at Columbia:

During the M.S. in Negotiation and Conflict Resolution’s first webinar of the new academic year, Dr. Peter T. Coleman, author of The Way Out: How to Overcome Toxic Polarization (Columbia University Press, 2022), will share his research and work on toxic polarization. As the United States approaches the November 2024 election, Dr. Coleman will discuss our country’s political polarization not as stemming from a single event, but rather as a changing and dynamic system— with many variables interacting in unpredictable ways. By leaning into the complexity, Dr. Coleman will help us understand new ways to approach and engage with the election cycle.

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My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:

American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.

Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.

Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.

Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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ELB Book Corner: Bob Bauer:  “A Common Question about ‘The Unraveling’”

I’m pleased to welcome Bob Bauer to the ELB Book Corner, writing about his new book, The Unraveling. Here is the first of three guest posts:

Since the publication of my book, The Unraveling, I have been asked why, during this norm crushing experience with Donald Trump, I chose to ground my reflection in a fair degree of professional self-criticism. The objection goes something like this: whatever second thoughts you have had on positions taken or advice given, your sins and those associated with Trump’s brand of politics must be weighed on different scales.

I note, first, that my self-examination only goes so far. There are controversial positions I’ve taken, say, on money and politics, which have not changed radically over the years. I continue to believe that continued reliance on the post-Watergate model of campaign finance regulation is mistaken (and futile).

However, on other topics, it seems to me that if we are going to have a productive debate about reviving the norms of democratic politics the conversation should open with some show of humility. When will-to- win becomes overpowering, because the issues are deemed existential, ends are soon supposed to justify the means. Both parties can fall into this trap, though one of them—Trump’s—sees this not as a trap but as the portal through which to march to political dominance.

I suggest in the book that norms are upheld or weakened as a result of individual choices that all those in political or government positions make. A norm is an abstraction, made meaningful by what an actor chooses to do in particular circumstances. How actors make these choices defines an ethical politics, and a politics devoid of ethics is not really “democratic politics.” I share the view expressed by the political theorist Bernard Crick in his “defense of politics: that “to act morally in politics is to consider the results of one’s actions,” and that “however convinced [men and women are] of the rightness of their party, they must compromise its claims to the needs of some electoral and legal framework.”

I offer the example from early in my career of the Democrats making a run at bringing the Internal Revenue Service into the business of containing “negative” campaign speech for which then-available tax credits would be denied. They did not care for negative campaigning, in large part because they did not care for the success of these attacks in the Republican resurgence culminating in the 1980 election of Ronald Reagan. Putting the IRS in the middle of judging the ‘negative” quality of campaign speech was a dreadful idea. The proposal went nowhere but my advocacy of this proposal reflected ethical tone deafness. And— with qualifications—the same goes for the use of the RICO statute to undermine then majority whip Tom DeLay’s plans to spend massive “soft” money to retain Republican control of the body.

To address these issues forthrightly is not by any means to engage in “moral equivalency.” I am second to none in my disgust with Trumpist political attacks on democratic norms and institutions. But the book looks to the common ground that Democrats and Republicans can find to resist the worst of what this kind of politics, and an unethical politics more generally, portends for the health of the democracy. In The Unraveling, I address urgently needed short-term and longer-term responses to the currently troubled state of democratic self-governance, including presidential abuse of power, the controversies over the Supreme Court, the rise in the resort to the impeachment process, and the challenge to professional, nonpartisan election administration. I describe my involvement in those projects, working with any and all who share these concerns, while remaining a very committed Democrat.

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“Trump’s authoritarian lean appeals to the right. Swing voters, not so much”

Aaron Blake in WaPo, on a new Monmouth poll “suggest[ing]  that if Democrats can drive home the idea that a second Trump term would be a more authoritarian one, that could alienate the most crucial 2024 voters, the ‘double haters,’ . . . the approximately 1 in 5 voters who dislike both Biden and Trump [and] tend to be the least authoritarian-leaning voters of all.”

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“Trump Assassination Attempt Exposes the Mortal Core of America’s Politics”

Molly Ball in WSJ:

For Trump and his followers, the shooting cemented his status as a victimized folk hero, a messianic figure who would sacrifice himself to save the country from ruin. “They tried to jail him. They tried to kill him,” the governor of Texas, Greg Abbott, wrote on X. “It will not work. He is indomitable.” …

Many Republicans blamed the left’s heated rhetoric for bringing the country to a boiling point. “Dems and their friends in the media knew exactly what they were doing with the “literally Hitler” bull—!” Trump Jr. wrote. To Democrats it was just as grimly obvious that it was Trump’s ongoing flirtation with political violence that led to this—that the president who once told violent militias to “stand back and stand by,” who ginned up the crowd that brutalized police on Jan. 6, 2021, couldn’t claim to be an innocent victim of the tinderbox he’d helped ignite….

Biden, now back at the White House, gave another statement denouncing violence. Trump announced that he would travel to Milwaukee as planned. “We will FEAR NOT, but instead remain resilient in our Faith and Defiant in the face of Wickedness,” he said in a social-media post. Yet the attempts to calm the waters were plainly too little too late: for America, the fear continues.

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Open Letter from Scholars in Support of Fusion Voting

Here’s an excerpt from the letter, released yesterday:

With partisan polarization at dysfunctional highs, public faith in the political system hitting dangerous lows, and two unpopular presidential candidates competing in a high-stakes presidential election, Americans are rightfully worried about the future of our democracy. The good news is that growing concern has also widened discussion of much-needed fundamental reforms to our existing electoral system.

As concerned scholars and advocates for democratic reform, we urge legislative bodies across the country to re-legalize fusion voting in all partisan elections. “Fusion” voting denotes the ability of more than one party to nominate (with their consent) a candidate in an election, on a separate ballot line, with votes cast for the candidate on that ballot line counted separately and then incorporated into their total. This election rule has deep roots in American political history. We believe that its revival today would reinvigorate our democracy by improving representation and accountability while strengthening voters’ rights….

Fusion makes it more likely that voters disaffected with the current parties will exercise their right to associate with others and form new parties because it avoids the problem of election spoiling. It would reengage disenchanted voters, and their diverse organizations, and allow more party diversity. Reviving the option of fusion offers a path out of hardening destructive partisan polarization while aligning closely with the constitutional principles of free association and expression, foundational to the American creed….

Tabatha Abu El-Haj, Lee Drutman, and Lisa Disch led the drafting of this letter, which around 110 scholars have signed. Other signatories include Guy Charles, Kathy Cramer, Larry Diamond, Aziz Huq, Alex Keyssar, Steve Levitsky, Jane Mansbridge, Bertrall Ross, Nick Stephanopoulos, and Larry Tribe. (Disclosure: I’ve also joined.)

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“The Ground Is Shifting Under Biden and Trump”

Tom Edsall NYT column:

How has the ascendance of well-educated, relatively affluent liberals among Democrats, alongside the dominance of non-college voters in the Republican coalition, altered the agendas of the two parties?

Are low-turnout elections and laws designed to suppress voting now beneficial to Democrats and detrimental to Republicans? Would the Democratic Party be better off if limits on campaign contributions were scrapped?

Nicholas Stephanopoulos, a law professor at Harvard, contends that the answer to these last three questions is changing from no to yes.

In a paper posted last week, “Election Law for the New Electorate,” Stephanopoulos argues that “the parties’ longstanding positions on numerous electoral issues have become obsolete. These stances reflect how voters used to — not how they now — act and thus no longer serve the parties’ interests.”…

The column adds a number of reactions from election law scholars, including me, to Nick’s provocative paper. I’ll have more to say on this broader topic in a big piece posting soon.

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“How a ‘Committed Partisan Warrior’ Came to Rethink the Political Wars” (New Bob Bauer Book!)

Peter Baker on Bob Bauer and his new book, in the NYT:

Once, after he executed a particularly tough-minded legal attack on Republicans, Bob Bauer remembers, a conservative magazine called him an “evil genius.” He took it as a compliment. “I was very proud of that,” he said. “I thought, That’s cool.”

For decades, Democrats have turned to him as their lawyer to wage battles against the opposition. Reverse a House race they seemingly lost? Accuse the other side of criminal activity? Go to court to cut off Republican money flows? Find a legal justification for an ethically iffy strategy? Mr. Bauer was their man.

But now Mr. Bauer, the personal attorney for President Biden and previously the White House counsel for President Barack Obama, is looking back and rethinking all that. Maybe, he says, that win-at-all-costs approach to politics is not really conducive to a healthy, functioning democracy. Maybe, in taking the “genius” part to heart, he should have been more concerned about the “evil” part.

In a new book, “The Unraveling: Reflections on Politics Without Ethics and Democracy in Crisis,” to be published on Tuesday, Mr. Bauer takes stock of what he sees as the coarsening of American politics and examines the tension between ethical decisions and the “warrior mentality” that dominates the worlds of government and campaigns today. And in the process of thinking about what went wrong, Mr. Bauer, who calls himself a “committed partisan warrior,” has stopped to wrestle with his own role in the wars…..

r. Bauer has had a role in most of the significant political-legal wars of the last few decades, representing Democratic Party organizations and candidates, advising House and Senate Democratic leaders during President Bill Clinton’s impeachment battle and serving as Mr. Obama’s campaign lawyer and later White House counsel.

In the last few years, though, Mr. Bauer retired from his law firm, Perkins Coie, and increasingly turned his energies to finding ways to fix the system, working with Republicans like Benjamin Ginsberg and Jack L. Goldsmith. Among other projects, he advised lawmakers who revised the Electoral Count Act in 2022 to make clear that no vice president can single-handedly overturn an election, and he guided a bipartisan group that in April recommended changes to the Insurrection Act to limit presidents’ power to deploy troops to American streets.

Mr. Ginsberg, a longtime election lawyer who represented George W. Bush and Mitt Romney, among others, before breaking with the Republican Party over its support for Mr. Trump, said that Mr. Bauer was always “an ethical, principled guy” who managed to zealously represent his clients without crossing lines that should not be crossed.

“We’ve been battling each other for 40 years on stuff, and it’s always important, he knew, to fight fiercely for your candidate,” Mr. Ginsberg said. “But his concept of the rule of law is that the process works best if you have fierce partisans on each side but with an appreciation for the democratic process, institutions and norms.”

Bob’s new book is fabulous, and here is my blurb of it:

With wit, insight, self-awareness, and humility, Bob Bauer reflects on his life as a leading political lawyer, making an urgent plea for a renewed commitment to political ethics. A must-read warning about how our existential politics has led to norm collapse, and how to bring us back from the brink.

— Richard L. Hasen, Author of A Real Right to Vote and Election Meltdown

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“What Is “Fusion Voting”? Just a Way to Save the Country, That’s All”

Dan Cantor and Bill Kristol ask:

What in the world could possibly bring the two of us together? One of us is a slightly reformed Reaganite, the other a slightly chastened social democrat, each of us mugged by authoritarianism. In the 1980s and 1990s, one of us worked for Ronald Reagan and George H.W. Bush; the other worked in the presidential campaigns of the Reverend Jesse Jackson Jr. and co-founded a progressive third party.

And yet, here we are, collaborating on a project that we believe can help restore the political health of the country we both love.

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“With a Democrat’s Help, the F.E.C. Goes From Deadlock to Deregulation”

There’s a lot to drive discussion in this NYT piece on the FEC and Commissioner Lindenbaum’s role in a recent series of votes.  (Disclosure: I was serving at the White House when Commissioner Lindenbaum was nominated.)

I haven’t had the chance to dig into the substance of the specific rulings highlighted in the piece, including the recent advisory opinions (and including the important AO on canvassing and coordination that Ned and Rick flagged a little over a month ago).  I tend to think that some of the critique of commission action and inaction is sometimes directed at the desire to change laws or regs rather than working with what the regs actually say, and I’d want to actually read the underlying legal materials before opining on the policy decisions.

The piece does highlight that “Ms. Lindenbaum’s work in the trenches of campaigns, where lawyers sort through the law’s gray areas to decide what can and cannot be done, that her supporters and detractors alike say has informed her thinking.”  And I agree with the profoundly informative nature of that experience.

The piece also highlights Marc Elias’s role in the series of recent votes: “One surprising thread through many of Ms. Lindenbaum’s most consequential decisions is that they were sought by Mr. Elias, who has become the face of voting-rights litigation on the left.”  But I think that thread may only be surprising if you’re the type to anoint someone as the “face of voting-rights litigation” for a diverse and hazily defined coalition of millions of voters with a whole lot of distinct voting-rights interests.  (The unrelenting focus of American political reporting on branding star personalities is not the only way to understand policy decisions or present narrative.)  Lawyers bring matters forward for a lot of reasons, including the interests of their clients and/or funders.

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