Tag Archives: New Scholarship

“Historians and the Strange, Fluid World of Nineteenth-Century Politics”

third parties,

ERIK B. ALEXANDER AND RACHEL A. SHELDEN have published a blog post reflecting on the significance of their recent article, which I mentioned a few weeks back in a post on the history of third parties in the United States.

For more than half a century, historians have relied (often implicitly) on a model of organizing U.S. political history around distinct and separate “party systems,” pitting two competitive, stable, national parties against one another for long stretches of time between short bursts of realignment. In the context of the shifting political landscape of 1868, however, explaining the partisan politics of the Johnson impeachment through the party system model is the equivalent of forcing a square peg into a round hole.

They then apply this to Andrew Johnson’s impeachment vote.

How, then, are we to understand the partisan breakdown of the 1868 vote to impeach? If we conflate the Union Party with the Republican Party, was Johnson a Republican? He may have flirted with the Democrats in pursuing a revived Union Party, but he was not a Democrat. And while Democrats certainly supported Johnson’s vision for Reconstruction over that of the Republicans, they did not view him as a member of their party either. In other words, including Johnson in any kind of accounting of the partisan politics of impeachments is confusing at best.

. . . .

We argue that it is high time to shed the confines of that model. Nineteenth-century politics are better described as fluid, unstable, and federal, operating through a series of mechanisms—networks, newspapers, customs, and laws—unique to that era. Political actors used these mechanisms to address the most pressing ideological and constitutional conflicts of their era, often in concert with broader political activism. They could quickly organize new parties to address problems as they arose, and just as quickly discard parties when the issues were resolved (or when absorbed by another party). In this way, parties were deeply integrated into the broader fabric of American political life, rather than serving as its organizing structures.

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A Justice’s Perspective on Moore v. Harper

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Justice Scott Kafker of the Massachusetts Supreme Judicial Court and his co-author Simon Jacobs have published a new article, The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws, 59 Wake Forest L. Rev. 61 (2024).

There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision.

But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.

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Travis Crum Reviews “The Court v. The Voters”

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Travis Crum (Wash U) reviews Joshua Douglas’ new book in the Washington Monthly.

“The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights is essential for anyone who wants to understand the Supreme Court’s role in setting the rules of our democracy and what threats loom this year’s elections. As a professor of constitutional law and voting rights, I will recommend Douglas’s book to my students who are looking for a primer on election law. Here are five key takeaways from Douglas’s book.”

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Out Today: “The Court v. The Voters”

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Joshua A, Douglas‘ new book, “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights” offers an accessible look at the erosion of voting rights and its implications for democracy. Focusing on nine major Supreme Court cases, Douglas demonstrates the erosion of meaningful protections for the right to vote before turning to offer some legislative proposals for reversing this course. There is a nice review in Salon. Very much looking forward to reading it.

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New Podcast: Alex Keyssar on why we still have the Electoral College

electoral college

In a new episode of Democracy Paradox sponsored by the Ash Center, Justin Kempf sat down with Alex Keyssar to discuss his book Why We Still Have the Electoral College?— and what the future holds for this archaic institution. Keyssar explores the history behind efforts to reform the Electoral College, how the different sides of the debate changed over time, and why reformers have repeatedly failed in their efforts.

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“Assembly as Political Practice”

academic freedom, First Amendment theory

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

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

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“The Associational Rights of Political Parties”

cumulative voting, political parties, primaries, third parties

Sharing a chapter I have written for The Oxford Handbook of American Election Law (Eugene Mazo, ed.) (2023, forthcoming). The chapter, among other things, stresses the ways that the U.S. Supreme Court’s current approach to the associational freedom of political parties significantly constrains party reform strategies. Given the manifest need for party regulation in the interest of a healthy democracy and the recent buzz around Lee Drutman’s report and op ed arguing for more and better parties, this seems a good time to share.

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New Issue: Fordham Law Voting Rights and Democracy Forum

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Tired of the 24 hour news cycle? Check out the final issue of the inaugural Fordham Law’s Voting Rights and Democracy Forum. With articles written by both established scholars in the field and JD candidates, it is a refreshing change of pace. Richard Briffault argues that New York’s first round of independent redistricting was an “epic fail.“

“In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. . . . . Sadly, the new process employed in the 2022 redistricting was an epic fail. This Essay examines the first test of this new constitutional procedure and contends that the IRC, the state legislature, and the subsequent judicial intervention, all flunked it.”

Other crisp and timely articles in the volume include:

Voting Rights and the Electoral Process: Resolving Representation Issues Due to Felony Disenfranchisement and Prison Gerrymandering

Third Parties and the Electoral College: How Ranked Choice Voting Can Stop the Third-Party Disruptor Effect

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Electing Women Could Reduce Polarization

political parties, political polarization

A thanks to Lee Drutman for resurfacing a 2022 article in the American Political Science Review, based on an original dataset of political parties in 20 Western democracies, suggesting that having more elected officials who are women associated with a political party may reduce levels of hostility to that party by those in the opposite party. This may, of course, require making it easier for younger women to run for office and to serve as legislators: A Time exclusive reports Representative Anna Paulina Luna (Republican Florida) will be “only the 12th member of Congress to give birth while in office.”

“Second, independently of whether women representatives behave differently from men, women’s descriptive representation affects both citizens’ and journalists’ political perceptions. US-based studies show that respondents hold gender-trait stereotypes, seeing women politicians as more caring and compassionate, more likely to compromise and build legislative consensus and having better interpersonal skills.”

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

political parties, political polarization

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

political parties, political polarization, Uncategorized

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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“Laboratories of Democratic Backsliding”

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Looking forward to reading Jake M. Grumbach‘s (Department of Political Science, University of Washington) new book, Laboratories Against Democracy: How National Parties Transformed State Politics, which was profiled a few weeks ago on NPR. In the meanwhile, I have been reading the earlier article, Laboratories of Democratic Backsliding. The article uses “a new comprehensive measure of electoral performance”–one that considers a range of factors such as “average polling place wait times, same-day and automatic voter registration policies, and felon disenfranchisement” and then uses “Bayesian modeling to estimate a latent measure of democratic performance.” The conclusion is that between 2000-2018 states have witnessed “democratic backsliding.” What explains this? Here is where the article offers an analysis that supports what many observers have already concluded: “Republican control of state government reduces democratic performance.” And that this not party competition, polarization, demographic change or a range of other factors is the significant driver of the backsliding that is occurring.

There is obviously lots of nuance to the findings, but what I think is most interesting is that this approach potentially offers a starting point for scholars to begin to think about where democracy is working best (including by more ambitious measures such as policy responsiveness) in the United States–and from there to think about what we can do to nudge the rest of the country in that direction.

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