In a post yesterday, Ned Foley took issue with the essay from Randy Barnett posted yesterday at NYU’s Democracy Project. Here’s an excerpt from Randy’s piece, so readers can understand the context of Ned’s critique. Today’s post at the Democracy Project comes from Mark Cuban, which I’ll blog about later in the week.

From Randy Barnett’s essay:

When one hears today about threats posed by the duly-elected Trump administration to “our Democracy,” one gets the distinct impression that “our Democracy” means the political program of the Democratic Party, whether supported by a majority or minority of the American people. This impression is reinforced by Democrats cheering the unelected district court judges who are massively resisting the policies of a popularly-elected president by issuing restraining orders, or booing the Supreme Court’s returning abortion policy to state legislatures. This “la démocratie, c’est nous” attitude constitutes a return to the Democratic Party’s roots…

When I make observations like these, self-identified “Democrats” often hasten to insist that they too reject majoritarianism. They too believe in protecting the rights of the minority. They favor a “constitutional democracy.” That sounds good, but the sentiment does not last long. These same Democrats easily revert to a majoritarian conception of democracy when any of the undemocratic components of our republican Constitution obstruct their favored policies.

Ask Democrats about the composition of the Senate, the operation of the Electoral College, the Senate filibuster when they hold the majority (but not when they don’t), or the Supreme Court when it rules in a way they dislike. They will condemn all these as “undemocratic” as Sanford Levinson did in his book, Our Undemocratic Constitution. (I wrote Our Republican Constitution: Securing the Liberty and Sovereignty of We the People as my reply.) Since January 2025, Democrats have also become concerned with the “undemocratic” exercise of executive power, pursuant to broadly-worded statutes, that previously did not bother them.

Context is everything. Given the way “our Democracy” is being invoked today and by whom, it is incumbent on an academic initiative calling itself “The Democracy Project,” to specify what exactly it means by “democracy” and “democratic.” If it is not majoritarian governance, just what is it? Does its mission statement’s reference to “the challenges facing American democracy” include “resistance” to the outcome of elections by “career” administrative bureaucrats or by district court judges? Without telling us what it means by “democracy,” the timing of the Democracy Project’s formation may be viewed merely as a “project” to provide intellectual cover for Democratic opposition to the duly-elected Trump Administration and Republican majorities in Congress. Then, when they regain power, Democrats will once again wrap themselves in the mantle of the “will of the people” and decry the counter-majoritarian elements of our republican Constitution.

An hour before Jimmy Kimmel returned to his show last night, Trump posted: “I can’t believe ABC Fake News gave Jimmy Kimmel his job back. … He is yet another arm of the DNC and, to the best of my knowledge, that would be a major Illegal Campaign Contribution. I think we’re going to test ABC out on this. Let’s see how we do. Last time I went after them, they gave me $16 Million Dollars. This one sounds even more lucrative.”

This, in my judgment, is incredibly alarming from a First Amendment and Election Law perspective. Accusing ABC of being an arm of the DNC and its content as being an illegal campaign contribution is the equivalent of accusing any media outlet of engaging in prohibited speech simply for engaging in political commentary. Federal campaign finance law has a longstanding explicit “media exception” to its prohibitions, excluding from its coverage “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate” 52 U.S.C. § 30101(9)(B)(i). There is no credible claim, despite Trump’s insinuation, that ABC is “owned or controlled by” the Democratic National Committee, just as there would be no credible claim that The New York Times or any other liberal-leaning media outlet is. The idea that the President of the United States would explicitly go after a media company in an effort to secure a “lucrative” settlement just because the media company engages in speech critical of the President is extremely antithetical to how a system of self-government with free elections is supposed to work.

The Wall Street Journal, which is not “owned or controlled by” the RNC any more than ABC or the New York Times is “owned or controlled by” the DNC, has its coverage of Trump’s threat as part of its story on Kimmel’s return.

Randy Barnett’s contribution to The NYU Law Democracy Project’s “100 ideas in 100 days” series asks this question. I encourage you to read for a succinct statement of his viewpoint. Whether or not he accurately characterizes the views of James Madison when the Constitution was written in 1787 (and on this I think his characterization is overly one-sided concerning the need to balance majoritarian governance with minority rights in a republic), what’s more important in my judgment is that Barnett’s account fails to appreciate the evolution of Madison’s own views over the entirety of his lifetime. As other Madison scholars have observed, Madison became more majoritarian as he saw partisan politics develop in the young Republic. I’ve drawn upon that scholarship in my own work as well as contributed to it in “The Real Preference of the Voters”: Madison’s Idea of a Top-Three Election and the Present Necessity of Reform. The account I give of how Madisonian democracy (or republicanism, if you prefer as Barnett does) relates to the threat of authoritarianism posed by Donald Trump and the now-dominant MAGA faction of the Republican Party is very different from what Barnett articulates.

From the USA Today Network, this particular change caught my attention:

“HB 154, which will go into effect on Sept. 30, allows voters to request that their ballot be hand-counted if they live in a town or ward that uses an electronic machine to count ballots.

“If a voter requests their ballot be hand counted, the election official manning the machine must place the ballot in the side-pocket or in a properly labeled ballot box to be hand-counted after the polls close.”

It seems to me that this change has the potential to cause significant problems, either delayed results given the extra time it takes to count ballots manually or, even worse, inaccurate tallies that spark extended recounts and litigation. I hope not, but we shall see.

Nebraska Examiner reports on the Common Cause lawsuit.

Has a lengthy quote from Rick Pildes:

“When people perceive politics as existential, they believe the country will never be the same, in a fundamental way, if the other side prevails. The other side is not merely the opposition, but an existential threat, and not just in the political realm, but even at the personal level.

“For parts of the right, the Charlie Kirk assassination is going to further fuel that belief. Politics becomes totalizing. All the different institutional domains of a liberal society are swept into the maws of the political: the entertainment sphere, the universities and even elementary education, the private sector (such as law firms), civil society, and much else. There is no limit to the political.”

Also one from Larry Diamond (among others):

“Donald Trump’s goal is to create a Hungarian-style pseudo-democracy, in which he and his movement can rule indefinitely through unfree and unfair elections and utter dominance of the media and civil society landscapes, while still claiming that they are the democratic embodiment of the ‘will of the people.’

“Everything Trump has been doing of late follows that authoritarian playbook of trying to eviscerate checks and balances, eliminate independent oversight actors, and use state power to punish and terrify critics, so they will self-censor. He is even going after the same philanthropy — the Open Society Foundations — that Orban went after.”

In the latest episode of The New Yorker Radio Hour podcast, David Remnick interviews Marc Elias about the threat to next year’s midterms posed by the possibility that President Trump will attempt to abuse presidential power in order to… Continue reading

New Law and Democracy podcast episode.

It is often observed among scholars of democracy that an essential ingredient for the success of democracy is for political opponents to view each other, not as implacable enemies to be crushed, but instead as fellow citizens who have good-faith… Continue reading

Votebeat reports, focusing on the pending case in the Pennsylvania Supreme Court, but also noting the recent Third Circuit decision: “The Republican National Committee is asking the full bench of 3rd Circuit judges to rehear the case. … And… Continue reading

POLITICO reports that “Charles Munger Jr. has spent more than $30 million to defeat a redistricting campaign. … He dedicated about $14 million to sell Californians on ballot measures to create an independent redistricting commission, which he argued would permanently… Continue reading

Michelle Cottle’s N.Y. Times Opinion essay on the Republican representatives from California who may end up as “collateral damage” from the “redistricting war” that Trump has unleashed.

N.Y. Times reports. “The chaos is partly from an act of fate — the death of Mr. Turner on March 5 — but mostly from acts of humans. A special election to serve out the remainder of Mr. Turner’s term… Continue reading