Balkinization: Meltdown? On Rhetoric and Causation

Meltdown? On Rhetoric and Causation

Guest Blogger

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

Guy Charles

Rick Hasen is a prolific scholar (and a wonderful interlocutor). He is not only one of the most thoughtful scholars in the field of election law, he seems to write a book every other year. He has a great eye for identifying the issues of the moment, he has a prodigious command of relevant information, and he has an ability, which is rare among most legal academics, to distill complex issues in a manner that makes sense to non-academics. His latest project, Election Law Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, displays these skills in ample abundance. Rick’s timing could not have better. Or worse? His book, predicting an election law meltdown, came out just as, it seemed, the Iowa Caucuses were experiencing the election administration version of the ten plagues of Egypt. Rick relies on a series of vignettes and real-world events to show how the confluence of “four factors—voter suppression, pockets of incompetence, foreign and domestic dirty tricks, and incendiary rhetoric—undermines public trust in the fairness and accuracy of American elections and creates high risks for the 2010 elections and beyond.” (10). The book is engaging, moves quickly, raises a number of important points, and is extremely accessible. I want to focus on two issues in particular that the book raised for me, one about rhetoric and the other about causation.

On Rhetoric

The first is about rhetoric and is a type of a Heisenberg uncertainty problem. Rick is concerned that Republicans and Democrats will use incendiary rhetoric to undermine electoral legitimacy and public acceptance of electoral outcomes in a close election where electoral outcomes go against their respective preferences. For example, Rick takes issue with Democrats who claim that Republicans stole the 2018 Gubernatorial election, in which Republican candidate Brian Kemp prevailed by about fifty thousand votes against the Democratic nominee Stacy Abrams. Rick states: “While many of Georgia’s actions were questionable and unjustified, there was no good evidence that they determined the outcome, and such language wrongly put the focus on whether suppression affections election outcomes rather than on whether the state may put stumbling blocks in front of voters for no good reason.” (10). Similarly, Rick takes issue with Republicans who use the false claim of voter fraud to dispute electoral outcomes that they do not like. One of his examples is Trump’s refusal in 2016 “to promise to abide by the results of the results if the lost to Hillary Clinton” on the ground that the Democrats were trying to rig the election. (106). Rick finds this rhetoric dangerous because it has no factual basis and undermines faith in the electoral process. These types of claims should not be made unless they are based upon facts.

Rick’s focus on rhetoric prompted me to think about and turn the lens for a moment on his rhetoric. The book portends and predicts doom and gloom. Election Meltdown. This current book is similar to the title of Rick’s 2012 book, The Voting Wars: From Florida 2000 to the Next Election Meltdown. Or his 2016 article in the William & Mary Bill of Rights Journal: The 2016 U.S. Voting Wars: From Bad to Worse. The same theme continues in a forthcoming piece in the St. Louis Law Journal from his Childress Lecture, Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World. Rick might be able to give the biblical prophet Jeremiah a run for his money. Wars. Meltdown. Post-Truth. Apocalypse. Elections. The only thing missing are the plagues and locusts.

The question for me is whether predictions of doom and gloom, whether accurate or not, themselves undermine voters’ faith in democracy. One of Rick’s central claims is that rhetoric matters to voters; it matters to their subjective sense that the process is fair and it matters for their ability to accept outcomes that are inconsistent with their electoral preferences. As Joseph Fishkin points out in this symposium, there could be a tension between efforts to protect the objective fairness and accuracy of elections and the public’s subjective sense that elections are fair and electoral outcomes are accurate. Undoubtedly, predictions of doom of gloom about election processes and outcomes affect the public’s subjective and collective faith in the process and the outcome. If the public is regularly told that our election system is bad and going from bad to worse and is melting down, naturally, people will have less faith in the process and the outcome. Where those predictions are accurate and necessary, they ought to be made.

But as Rick nicely shows in his book, the burden of proof is on those making the affirmative claim. Administering a large, complicated, decentralized system of elections, which is the American electoral process can be messy. It will come with predictable and unpredictable errors. Forced and unforced errors. Some errors will be catastrophic and others much less so. And of course, it is important to distinguish between the two. We ought to know the difference between a meltdown and a process that is messy. I finished the book wondering whether Rick’s rhetoric is unduly alarmist and what impact such rhetoric might have on voters’ subjective confidence. I think we need to think through when we should sound the alarm and when cries of doom and gloom are self-reinforcing.

On Causation

My second point is related to the insights offered by Franita Tolson and Tabatha Abu El-Haj in this symposium, here and here, respectively. Tabatha argues that the problems in American democracy are deeper and broader than Rick’s diagnosis lets on. In a similar vein, Franita argues that the problems of American democracy are structural and longstanding. I share both of these views. When I think of dirty tricks, I think of Jesse Helms “white hands ad” against Harvey Gantt in the 1990 North Carolina Senate elections between the white Republican Helms and the black Democratic challenger Gantt. Gantt, who would have been the South’s first post-Reconstruction black Senator, was surging against Helms and some believe that the ad stopped him in his tracks. I think also of the 2000 Republican primary between then-Governor George W. Bush and Senator John McCain. McCain defeated Bush in the New Hampshire primary and the race headed South to South Carolina. Bush strategist Karl Rove and his operatives stopped McCain’s momentum by insinuating via a push poll that McCain fathered an illegitimate black child. All of us have a number of anecdotes that we can tell.

However, as Tabatha points out, our political and cultural moment raises the specter that Americans, on the right and left, are dissatisfied with democracy itself. And as Franita explains, these issues are not new and they are rooted in the structural arrangements through which we regulate and administer the franchise. The work of election law scholars in the next few years will be to carefully identify the problems with American democracy, understand their root causes, and provide solutions that meet the problem. I suspect that we will continue to find that the root causes are structural and longstanding. But Rick provides us with a number of possible causes for what ails American democracy that demand attention. Rick’s work unfailing provokes these engaging discussions and I’ve learned a lot from engaging it.

Guy-Uriel E. Charles is the Edward and Ellen Schwarzman Professor of Law at Duke Law School. He is co-author of the forthcoming Race, Political Power, and American Democracy: Voting Rights Law and Policy for a Divided America (Cambridge University Press). You can reach him by email at charles at law.duke.edu.

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