Balkinization: The Centrifugal Forces of Democracy

The Centrifugal Forces of Democracy

Guest Blogger

For the symposium on Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press, 2020).

Dan Tokaji

Rick Hasen’s Electoral Meltdown tells a story of democracy in decline. Americans are riven by conflict, distrustful of one another, and bitterly divided over how we should run our elections. His book identifies four main culprits: vote suppression, administrative incompetence, dirty tricks, and overheated rhetoric about stolen or rigged elections. This constellation of problems, he contends, has diminished public faith in elections and threatens to undermine our democracy.

I wish I could say he’s wrong. But in reality, I fear that he’s only scratched the surface. The pathologies in American democracy run even deeper than those on which Electoral Meltdown dwells. And they won’t be solved by election law alone. Rather, they demand a confrontation with the two centrifugal forces: partisan polarization and economic inequality. Until we deal with these larger structural issues, the voting wars that he describes will continue to rage unabated.

Early on, Rick emphasizes that his book is not about Donald Trump, and for good reason. The electoral conflicts that are at the center of his book predate Trump’s presidency. Still, it’s an understatement to say that “Trump is more a symptom of the American system’s malfunction than a cause” (p. 12). To paraphrase Billy Crystal in When Harry Met Sally, that symptom is screwing our democracy. President Trump’s repeated contention that the last election was “rigged” (before he won), wild assertions of pervasive voter fraud, and general disdain for truth exacerbate the mutual contempt that has enveloped the country. President Trump has made American democracy worse. Rick is surely right that a disputed presidential election in 2020 would be even more destabilizing than the divisive conflict that culminated in Bush v. Gore two decades ago.

Rick is also right to call out election officials who execute their responsibilities to advantage themselves and their party. The worst offender to date is Georgia’s Brian Kemp, who was responsible for running the state’s 2018 election at the same time he was running (successfully) as the Republican candidate for Governor against Democrat Stacey Abrams. Rick aptly calls this “the most banana republic moment in the United States I could recall in two and a half decades of professionally following elections” (p. 66). As Secretary of State, Kemp abused his office to mount partisan attacks on the Democratic Party, while pursuing policies – like purging over a hundred thousand voters and putting some 53,000 registrations on hold – that made it more difficult for people to vote. Whether or not they swung the election, there’s little doubt that these official actions had a disproportionate impact on Democrats and people of color.

The Kemp episode exemplifies a larger structural problem. It makes no sense to vest responsibility for running elections in an official who’s elected to office as a nominee of one of the major parties. There’s an inherent conflict of interest between the elected election official’s incentive to help her party, and obligation to run elections impartially. Yet that is precisely the system that exists in most states in the U.S. It’s like having a referee who’s also a player for one of the teams. Other countries handle things differently, as I describe in a forthcoming book chapter. The pervasive partisanship of state election administration is one of the main reasons for the increasing need for judicial intervention to stop some of the worst partisan abuses, like those perpetrated by now-Governor Kemp.

Although Republicans have a worse track record of misusing their power to make voting more difficult, Democrats aren’t blameless either. As Rick notes, explosive rhetoric about “rigged” or “stolen” elections threatens to make things even worse, delegitimizing our electoral process (p. 114). While we should call out Kemp and others who misuse their authority to make voting more difficult, it’s important to dial down the rhetoric, lest we contribute to the cycle of mutual recrimination and distrust.

That said, there are larger forces at play than those at the center of Electoral Meltdown. An ever-growing body of literature documents the increase in partisan polarization, among both elected officials and the electorate. The increasing tendency of Republicans and Democrats to dislike and distrust one another – what political scientists call “affective polarization” – makes it much more difficult for government to function. Our system depends on compromise, but when an us-versus-them mentality takes hold on both sides of the aisle, compromise is impossible. Sowing disunity, even more than helping Donald Trump, appears to have been the major goal of the Russian-backed disinformation campaign in 2016. As documented in a bipartisan report from the U.S. Senate Intelligence Committee, the apparent goal was to mobilize opposing sides of socially divisive issues like race, immigration, and gun rights.

Closely related to rising political polarization is the equally well-documented increase in economic inequality. Both have skyrocketed since the 1970s. In fact, the connection goes back even further, with polarization and inequality moving more or less in tandem for the last half-century. There has been considerable attention to both these phenomena, although link between them remains incompletely understood. They appear to be mutually reinforcing. One possibility is that economic inequality breeds distrust in government, leading people to anti-system candidates who in turn fan the flames of political polarization. The increase in polarization makes it more difficult to stem the rising tide of economic inequality, fueling a vicious cycle.

What’s abundantly clear is that the dramatic increase in economic inequality, combined with the rise of political polarization, poses an existential threat to American democracy. Summing up the political science research, one paper on the subject explains: “the rich have been able to use their resources to influence electoral, legislative, and regulatory processes through campaign contributions, lobbying, and revolving door employment of politicians and bureacrats.” I’ve called this Vote Dissociation: the separation of our votes from real political power. This problem thus relates to another line of Rick’s research, the subject of his previous book Plutocrats United. Structural features of the U.S political system – including the Supreme Court’s dismantling of campaign finance regulation – make it very difficult to counter the increase in economic inequality, and the attendant increase in political polarization.

Electoral Meltdown does an admirable job of exploring the conflicts that plague contemporary election administration. Underlying these stories are deep-seated pathologies in our democracy. Election law can help, but it cannot alone solve them. Until we get our arms around the related centrifugal forces of polarization and inequality, the voting wars are likely to intensify in years to come. It remains to be seen whether American democracy can survive them.

Daniel P. Tokaji is Associate Dean for Faculty and Ebersold Professor of Constitutional Law at The Ohio State University - Moritz College of Law. You can reach him by e-mail at tokaji.1 at osu.edu

Posted 9:30 AM by Guest Blogger [link]