Category Archives: political polarization

How to tell if an election result is valid?

In advance of the 2020 election, I devoted a significant portion of my scholarship to this issue: given an official announcement (or certification) of an election’s result, how are citizens, journalists, judges–all of us–to determine whether the result should be accepted as valid?

I considered this question especially important in the aftermath of the 2016 presidential election because I thought that public discourse on this topic had become dangerously muddy, with many individuals characterizing Donald Trump’s victory as somehow invalid because of Russian interference. To me, this discourse seemed extremely problematic because I had no doubt that the vote tallies that produced Trump’s win were a sufficiently accurate count of ballots entitled to be counted and that there was no basis for considering that the wrong candidate had been declared the winner of the election. To characterize Trump’s victory as somehow invalid confused public discourse on this important topic, hindering the ability to distinguish the circumstance in which an election is truly invalid because the wrong candidate has been declared the winner.

As a consequence of this concern, I wrote a law review article on this topic: Assessing the Validity of an Election’s Result: History, Theory, and Present Threats. I also wrote a shorter essay on the same topic aimed at a more general audience: How to Know if the Election Is Actually ‘Rigged’. (If I’m capable of assessing my own work, this latter essay might be the most significant piece I wrote in 2020.)

Continue reading How to tell if an election result is valid?
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“Democracy is on the brink of disaster. For voters, it’s politics as usual.”

Rick P, in the previous blog post, was right to highlight Karen Tumulty’s column. The Washington Post today also has a piece presenting a rather depressing counterargument, by Colgate political scientist Sam Rosenfeld. The conclusion (although it’s definitely worth reading the whole thing):

“It would be helpful if more Republicans recognized that normal politics still gives them a perfectly good shot at victory — and that they don’t need to burn the house down to win power. But the party’s recent illiberal turn has deep roots, drawing on currents of extremism and procedural ruthlessness on the American right that stretch back many decades — and the very fact that the electoral punishment for transgressing democratic norms is so slight means Republicans have no need to grapple with the trade-off if they don’t wish to. And this is how electoral politics as usual might doom democracy itself.”

Accepting this as the reality, I see the potential solution only being the kind of structural reform of electoral systems that prevents anti-democracy Republicans from being the dominant force on the political right. For at least as long as “burn the house down” Republicans are not the majority preference among general-election voters in most states, it’s worth pursuing ways that the electoral process can be reformed so that “burn the house down” Republicans are not the only right-of-center options on November general-election ballots in states (and districts) that lean right-of-center. That way right-of-center voters can pursue their “normal politics” preferences with a candidate who, allied with with enough “left-of-center” preferences against burning the house down, can secure a Condorcet-majority victory.

Given the gravity of the threat, I’m eager to hear of other remedies for this disease. But as I tweeted on Thursday, Peter Baker accurately diagnoses the current pathology: “Those who speak against [Trump] are purged, and his endorsement is the most coveted asset in almost any Republican primary.” Consequently, in the second part of the two-tweet thread, if this is an accurate diagnosis, the cure must be structural reform that prevents an authoritarian like Trump from controlling which right-of-center candidates are on the November general-election ballot.

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“As the GOP sheds its moderates, a whirlwind approaches”

This Washington Post op-ed, by Democratic consultant Doug Sosnik, is a counterpoint to the Virginia GOP self-description of Younkin’s victory there, as posted by Rick Pildes.

While ranked-choice voting enabled Virginia Republicans to choose a gubernatorial nominee who was broadly acceptable in that still-purplish state, traditional party primaries may cause the GOP to pick nominees for Senate seats who identify themselves as the most Trump-aligned of candidates. (But, as the Washington Post elsewhere reports about Alabama’s upcoming Senate race, this will not occur without an all-out fight.)

Sosnick’s point is that which kind of GOP candidate wins the party’s nomination may have huge consequences for governance. An extreme GOP nominee might lose the general election in a more blue-leaning state, like Pennsylvania. But in places like Missouri and Ohio, a super-Trumpy nominee could win the general election. Whether or not the GOP wins control of the Senate after the 2022 midterms, the type of GOP Senators elected (Trumpy versus traditional) may make a big difference in the capacity of the Senate, and therefore of Congress, to function.

Sosnick singles out the retirement of five traditional GOP Senators (Blunt of Missouri, Burr of North Carolinia, Portman of Ohio, Shelby of Atlanta, and Toomey of Pennsylvania) as particular cause for concern. I, too, have been especially concerned about this, and start my law review article on the need for Requiring Majority Winners in Senate elections with this point.

While a majority-winner rule is not a cure-all, and while the specific electoral method of round-robin-voting likely would do more to protect traditionalist Republicans from decimation as a consequence of Trump’s use of the current party primary system (combined with plurality-winner general elections) to purge the party from anyone insufficiently loyal to Trump, a federal majority-winner requirement at least would require most states to consider potential reforms that would give less extreme candidates more of a chance.

Why should Democrats care which type of Republican are their general-election opponents? And why would Democrats want to help traditionalist Republicans, including Mitch McConnell, escape extinction at the hands of Trump and his MAGA movement?

The reason is that Democrats care about saving small-d democracy, or at least they claim to. If one of the two major parties becomes thoroughly anti-democratic (small-d), then the system is unsustainable. The Democratic Party can’t save democracy by claiming only it is capable of winning elections and running the government.

The lesson of 2021 is that Democrats have to figure out a way to save democracy that accepts the possibility of Republicans winning the 2022 midterms and potentially the 2024 races. Have Democrats come to terms with that?

The evidence suggests not, because if they had they’d be searching for reforms (like the majority-winner rule) that would increase the likelihood that the Republicans who win elections would be of the traditional type willing to abide by small-d democracy, rather than Trumpist insurgents who have no compunction against subverting democracy.

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“‘A real fight for our existence’: Massachusetts GOP spirals in Baker exit”

Moderate Republicans struggling to stay in office given party primary dynamics is not exactly news. Still, this Politico article on the Republican Party in Massachusetts is worthwhile.

“Republicans [in Massachusetts] have clung to relevancy in this bluest of blue state through a long line of moderate governors, including one-time presidential nominee and sitting Utah Sen. Mitt Romney, who appealed across party lines even as Democratic supermajorities in the state Legislature continued to grow.”

But now, internal polling led Baker to drop out of the race. Still, a number of Republican strategists, including Baker, do not think that the ultra-rightward shift is sustainable.

“Baker [maintains] . . . that voters are still more aligned with his brand of old-school New England Republicanism and bipartisanship than anything else. And other Republican strategists dismissed the GOP’s rightward march and embrace of Trump as a losing general-election strategy in Massachusetts.

‘Catering to 10 percent of a population and not focusing on the other 90 percent — it doesn’t take a rocket scientist to figure out you’re not going to get the numbers you need to get elected,’ said Colin Reed, former campaign manager to former Massachusetts GOP Sen. Scott Brown.”

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“How the GOP threatens harm to red state residents, as revealed in a new study”

This new Op Ed by Greg Sargent in the Washington Post, highlights, once more, deficits in policy responsiveness that arises out of hyper-polarization, among other things.

Sargent highlights a new  study from the Third Way–a centrist Democratic-leaning group–that analyzes the benefits to U.S. families of the top four provisions in the Build Back Better bill in real dollars.

What’s innovative about this study is that it shows ways in which average red state families in particular would benefit from specific BBB policies. Notably, no Republican voted for the version of BBB that passed the House — the basis for this study — and it’s very likely none will vote for it in the Senate.

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“A plurality of Republicans think they’re more moderate than their party”

Phillip Bump, Washington Post

New polling from YouGov/Economist reaffirms, once again, the degree to which the ideologies of our political parties (mostly just the Republican Party) and their legislative (in)action do not align with the preferences of ordinary voters. This is not sustainable.

“Most Democrats thought that the GOP was much more to the right than they were personally. But a plurality of Republicans also thought the party was further to the right than they were. About a quarter of the party said it matched their own ideology. About 4 in 10 said the party sat to their right — nearly the same response as was offered by independents.”

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“How a Cure for Gerrymandering Left U.S. Politics Ailing in New Ways”

Nick Corasaniti and Reid J. Epstein at the NY Times

“Partisan gerrymandering is as old as the republic, but good-government experts thought they had hit on a solution with independent commissions, advisory groups and outside panels. Taking the map-drawing process out of the hands of lawmakers under pressure to win elections, the thinking went, would make American democracy more fair.

But as this year’s once-in-a-decade redistricting process descends into trench warfare, both Republicans and Democrats have been throwing grenades at the independent experts caught in the middle.”

Partisanship has hobbled commissions in Virginia, Washington, and Ohio. Even Michigan and Arizona’s truly independent commissions are fending off partisan pressures.

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Aspen Institute’s Commission on Information Disorder Issues Its Final Report

The Commission was created to explore the implications of our “crisis of trust and truth.” A chain reaction of harm to our democracy has emerged as “bad information has become as prevalent, persuasive, and persistent as good information.” The Final Report issued today promises “a viable framework for action” and “makes 15 recommendations for how government, private industry, and civil society can help to increase transparency and understanding, build trust, and reduce harms.”

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“The Desperate Scramble to Stop an Insider Election Threat”

The Atlantic

Judge of elections and inspector of elections are elected positions in Pennsylvania. The question of the day is how many Trump loyalists were elected to those positions in the recent election. The fear is that Trump loyalists, primed with false narratives of election fraud, could be running polling places across Pennsylvania in 2024.

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The Problem with Plurality-Winner Elections

Election Law at Ohio State is pleased to present a one-hour webinar on the issue of electoral system design: The Problem with Plurality-Winner Elections – And Can Requiring Majority Winners Help Save Democracy? It’s scheduled for Friday, November 19, at noon ET.

Steve Huefner will moderate the discussion. I’ll present some research we’ve been doing here at Ohio State on this topic. Franita Tolson and Derek Muller, both familiar to readers of this blog, with comment as panelists. We are are delighted that Rachel Kleinfeld, Senior Fellow at the Carnegie Endowment of International Peace, who has been studying the relationship of electoral systems to political conflict, will also participate as a panelist.

The webinar will examine the role that the plurality-winner rule for congressional elections has in causing incumbents, like Sen. Rob Portman and Rep. Anthony Gonzalez (both of Ohio), to decide against running for reelection–regardless of being popular with their constituents–just because they have become out-of-step with their own party. The webinar will also explore whether alternative majority-winner electoral systems, like various versions of Ranked Choice Voting, might improve representation and reduce the risk of democratic decline in the U.S.

To register for the webinar (and more info), please click here.

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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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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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