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 make sure the results are what he wants. I’m about two-thirds of the way through the episode myself and can confirm it’s very much worth listening to. (One need not agree with Elias on other matters to benefit from hearing his perspective on the risk that the outcome of the midterms may not reflect the preferences of the eligible voters who wish to participate in next year’s elections.)

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 disagreements about what policies government should adopt. There needs to be a sense of a shared enterprise–we are all in this together, undertaking our mutual effort at collective self-government.

There are different ways to express this essential idea. Richard Hofstadter made it a core theme of his important book The Idea of a Party System, where he traces the development of the concept of a “legitimate opposition” in an ongoing electoral competition for temporary control of government power. More poetically, Lincoln in his first inaugural pleaded: “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.” More recently, Steven Levisky and Daniel Ziblatt invoked the same principle, as have Lee Drutman and Ezra Klein, among others.

That’s why it was so jarring (at least for me), even after all the increased vitriol of contemporary partisan politics, to hear President Trump at the memorial service for Charlie Kirk snarl (and I believe that’s the correct verb for it): “I hate my opponent, and I don’t want the best for them. I’m sorry. I am sorry, Erika. … But I can’t stand my opponent.” (The quoted words come at about one minute into the video clip; you can judge for yourself President Trump’s tone of voice.)

Democracy does not require the kind of supererogatory forgiveness that Erika Kirk bestowed upon her husband’s assassin, remarkable, moving, and exemplary as it was. But democracy does require that we all–including, and perhaps especially, our elected leaders–treat political opponents as fellow citizens, equally worthy to participate in our shared self-government. The kind of hatred that President Trump expressed is, I fear, fundamentally inconsistent with that elementary level of civic fellowship that is necessary to sustain democracy.

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 if the state Supreme Court rules for the ACLU, Republicans could in theory appeal that to the U.S. Supreme Court, too, if they believe the state court overstepped.”

The article includes this ELB-related analysis:

“Rick Hasen, a professor at UCLA Law School who tracks election litigation, says the two-year federal election cycle of 2023-24 saw more election lawsuits than any other period since the beginning of his database, in 1996.

“’Political operatives recognized that in very close elections, the rules of the game matter a lot,’ he said.

“Hasen said while it’s rare that litigating over technical issues in election law can change the outcome of a race, it’s not impossible.

“For example, in 2008, Al Franken, a Democrat, initially lost a bid for a Minnesota U.S. Senate seat to incumbent Republican Norm Coleman by a few hundred votes. But the close margin triggered a legally required recount, during which attorneys for Franken argued that some absentee ballots had been improperly rejected and should be counted. Franken ultimately won.

“Hasen said there have always been cases like that — post-election disputes in close races over which ballots to count — but part of what sets the current moment apart is that we are now also seeing pre-election disputes over what ballots should be counted.

“Derek Muller, an election law professor at Notre Dame Law School, has pointed to another contributing factor: a 2014 federal campaign finance change allowed fundraising specifically for election litigation. Hasen said the change created an incentive to pursue more cases, ‘because otherwise you’re kind of leaving money on the table.’

Even against that backdrop, Hasen said the amount of litigation over Pennsylvania’s mail ballot dating requirement stands out. Factors that could be fueling it, he said, include the commonwealth’s status as a swing state, a perception that less restrictive mail ballot rules help Democrats and hurt Republicans, and a general sense that it’s unfair to reject a ballot that election officials know was received on time and would otherwise be counted.

‘If Pennsylvania were not so polarized, or if one party controlled the legislature and the governor’s office, then you could well see a legislative fix for this problem,’ he said.”

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 take the partisan sting out of the state’s politics. … But the threat of partisan gerrymandering is back, and so is Munger.”

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

Last week at NYU’s Democracy Project‘s series of 100 essays in 100 days, we featured two essays, among others, on the role of Congress in this moment. One, from congressional expert Molly Reynolds, is titled When It Comes to … Continue reading

At the Volokh Conspiracy, Ilya Somin has a piece that provides a policy critique of this decision from his Cato colleague David Bier and then a discussion of the legal issues. Here’s some of the legal discussion: As David Bier… Continue reading

Over at Divided Argument, Sam Bray has posted this abstract of an essay he has just released. I have wondered about some of these questions, and Sam has been influential with the Court, as in the universal injunction case: When… Continue reading

POLITICO reports. “Democrats trying to counter President Donald Trump’s red-state gerrymander are facing a roadblock. Fifteen roadblocks, actually. “That’s how many Democratic-led states have a political trifecta — the same setup that helped Texas Republicans push through new maps last … Continue reading

Peter Baker in The NY Times details all the ways Trump’s attacks on dissent differs from his predecessors. A few paragraphs in this piece, all of which is well worth reading, struck me in particular: “’Donald Trump is hardly the… Continue reading