Today was the 10th Anniversary of the Mischief of Faction Blog, which started from the premise that “on balance, a nation is better off with parties than without them.” Seth Masket and Julie Azari took the opportunity to reflect on the state of American political parties. As Masket notes, “The past decade has taught us a lot about the dark side of parties.” Ultimately, Masket, like many in this field, points to the party primary as the problem. Azari, by contrast, urges political scientists to consider whether the traditional goals and assumptions of the field match political realities and institutions. The former is a more comfortable space for election law reformers. And yet, as Azari recognizes, institutions matter. And for the foreseeable future, the Supreme Court (an institution) and its doctrine (part of that institution) significantly constrain the feasibility of many of the most promising ideas for reforming party primaries.
The question then is what options remain for encouraging democratically functional parties. One idea that appears to be gaining ground in public discourse is fusion politics. Just today, Andy Craig published a short but clear argument in favor of fusion politics for Cato. It offers a particularly nice history of efforts to ban fusion candidacies and posits fusion politics as an answer to polarization, one that will bring more independents into politics–and presumably by expanding the electorate increase democratic accountability and responsiveness. While I generally agree with those goals (the latter in particular), I do think we should all pause to reflect on Azari’s most provocative question, what if polarization is “the result of progress on race and gender issues”? Viewed in this light, should we worry that a return to moderation and compromise (even if possible) would be backsliding?
A new Washington Post report suggests that Kevin McCarthy and Liz Cheney, as party leaders, are both working to bringing order back to the Republican Party. It is only their methods and interests that differ. McCarthy’s interests appear to be mostly about maintaining his own political power–as the political science literature would expect. That apolitical interest, however, has led to a campaign of often secret spending “to create a more functioning GOP caucus next year.”
“The political machine around McCarthy has spent millions of dollars this year in a sometimes secretive effort to systematically weed out GOP candidates who could either cause McCarthy trouble if he becomes House speaker or jeopardize GOP victories in districts where more moderate candidate might have a better chance at winning.”
The article describes a large “behind-the-scenes effort by top GOP donors and senior strategists to purge the influence of Republican factions that seek disruption and grandstanding, often at the expense of their GOP colleagues.”
Politico offers a fairly readable break down of the key differences between the House and Senate bills seeking to reform the Electoral Recount Act of 1887.
The U.S. District Court for Arizona has preliminarily enjoined two key provisions of Arizona’s recent effort to regulate voter registration. Importantly, it found the statute’s provision seeking to criminalize efforts to register out-of-state voters is likely unconstitutionally vague and further that the registration cancellation provisions likely violate the National Voter Registration Act.
On Wednesday, the National Constitution Center is hosting a webinar as part of its Guardrails of Democracy project. The specific topic is “Election 2022: Are We Ready?” David French, Ilya Somin, and I will be participating on behalf of the three teams that NCC created to prepare reports for the Guardrails project.
In addition, Ilya recently hosted a symposium of blog posts at the Volokh Conspiracy on the Guardrails project. Here are links to the symposium pieces:
Lana Ulrich, The National Constitution Center’s “Restoring the Guardrails of Democracy” Initiative
Edward Foley, Three Reforms to Protect Democracy from Election Denialism
Walter Olson, Restoring the Guardrails of Democracy: A Libertarian View
David French, An Upgrade, not a Rebuild
Walter Olsen, Guardrails of Democracy, Extended: Comparing Notes On The Team Libertarian Report
Edward Foley, Three Points of Agreement on Democracy Protection
Linda Greenhouse has written, John Roberts’s Long Game. Is this the End of the Voting Rights Act?–an insightful preview of Merrill v. Milligan, which will be argued on October 4. The lengthy Atlantic article cuts straight to the point:
“The justices have framed the question for this round as ‘whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.’ But the real question, the perilous one underlying that seemingly benign formulation, is this: Is Section 2 itself constitutional?“
The rest of the article proceeds to explain the intersections between John Roberts’s early career and the doctrinal backstory. It is too bad she did not directly explain City of Boerne v. Flores (1997) which would bolster why she is right to be concerned, but otherwise I found this a very accessible summary of the stakes.
: Delaware courts (including its Supreme Court, Court of Chancery and Superior Court) are subject to a constitutional provision that seeks to maintain a partisan balance on its courts by providing that “no more than a bare majority of… Continue reading
Plenty of commentary and analysis over Moore v. Harper
focuses on the meaning of the Legislature Thereof Clause tucked inside the Elections Clause. But one concept has received essentially zero examination: the political question doctrine. Some of the history of… Continue reading
N.Y. Times Sidebar
: The Conference of Chief Justices has filed a brief in Moore v. Harper opposing the independent state legislature doctrine. The Chief Justice of the Texas Supreme Court (accurately, in my view), told the N.Y. Times: “It’s… Continue reading
on new text messages between White House and those dubiously seeking access to voting machines in Arizona and Georgia in order to overturn election results in 2020:
“The messages, which have not been previously reported, shed new light… Continue reading
“President Joe Biden has won Senate confirmation for more than 80 of his nominees to be federal judges.” Moreover, “Biden has chosen an unusually diverse slate, with high shares of Black, Latino and Asian American judges, and he… Continue reading
On August 29, eight cartons of notarized paperwork challenging 25,000 voter registrations were delivered by pro-Donald Trump “election integrity” activists to Gwinnett County’s election offices in suburban Atlanta. They were accompanied by additional paperwork claiming that 15,000… Continue reading
You can watch the presentation at this link
Supporters of QAnon on former President Donald Trump
’s social media platform have celebrated what they see as his renewed embrace of the conspiracy theory over the past week after he shared a meme that was viewed as one… Continue reading