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 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… 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

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