Balkinization: The Default of American Politics: The Perpetual and Never-ending Prospect of an Election Meltdown

The Default of American Politics: The Perpetual and Never-ending Prospect of an Election Meltdown

Guest Blogger

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

Franita Tolson

I very much appreciate the opportunity to review Professor Rick Hasen’s timely and thoughtful book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy. The book does a great job of identifying some of the most pressing threats to our election system, and I do not think that voters sufficiently appreciate the seriousness of these threats. Many individuals assume that our democracy can survive these challenges because the system has survived challenges.[1] Professor Hasen challenges this assumption in important ways, presenting current threats as uniquely situated to cause enduring damage to our political system. According to Professor Hasen, “The synergy 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 a high risk for the 2020 elections and beyond.”[2]

While I appreciate the risks that Professor Hasen identifies, I do not think that the current dysfunction of our politics is unprecedented or that these risks are unique in the dangers that they pose to our system of democracy. More often than not, the prospect of an election meltdown has been the baseline from which most of our elections have always occurred. We have long accepted this risk because we somehow make it through each election cycle, quickly forgetting the problems that plagued the system or, at best, forming a commission of some sort to address immediate past problems (both real and perceived). But it is clear that our elections have never been healthy and robust. In my view, our current dysfunction is simply a different variation of the same problem that has haunted our country since the Founding. The default for our political system is, and always has been, well-ordered chaos. As historian James Baumgardner observed over three decades ago, “there is an often unspoken but well-known axiom to the effect that there never has been a truly honest election in the country’s history.”[3] Baumgardner made this comment in the context of the 1888 election, which was especially corrupt, but the idea that our elections are marked by misconduct of some sort could apply to virtually every election cycle. In the 1888 election, in particular, Republican Senator Benjamin Harrison defeated the Democratic incumbent, Grover Cleveland, although Harrison lost the popular vote by 90,596 votes.[4] In what is becoming a familiar narrative, it was the third election (and second in twelve years) in which the popular vote winner lost the Electoral College.

Harrison’s victory could be explained, in part, by dirty tricks, malfeasance and incendiary rhetoric, behavior similar to that which Professor Hasen argues threatens the legitimacy of the 2020 election. Cleveland was able to effectively beat back incendiary rhetoric and dirty tricks in 1884, with opponents accusing him of having a child out of wedlock in order to jeopardize his chances of winning the presidency, but he would not be so lucky in 1888. Two weeks before the 1888 election, Republicans released a forged letter, allegedly from the British ambassador to the United States, stating that Cleveland was the preferred candidate of the British Empire, leading the Irish community in New York to abandon Cleveland’s campaign. There was also outright fraud in the 1888 election, with African-American voters in New York receiving $5 for their votes rather than their usual $2 per vote. The Democratic machine in Tammany Hall also traded Cleveland votes in exchange for Republican support of its local and state candidates.[5] As a result, Harrison won New York’s electoral votes and, by implication, the presidency.

Many Republicans justified the election fraud in the North as an appropriate response to the disenfranchisement of African-Americans in the South, which was widespread and pervasive at the time. South Carolina, for example, passed a law in 1882 that required all potential voters to re-register, but delegated to election administrators broad discretion in determining voting eligibility. Unsurprisingly, they deemed many African-American voters ineligible to register to vote. The 1882 law also required voters to cast separate ballots for each race (the so called “multiple box” law); ballots placed in the wrong boxes were discarded, effectively disenfranchising many eligible voters. The success of these efforts is best indicated by the Republican Party’s share of the South Carolina vote in presidential elections during that decade, which dropped from 58,071 in 1880 to 13,740 in 1888.[6]

South Carolina was notable because African-Americans constituted close to sixty percent of the population of the state, but other southern states also followed suit in disenfranchising this population, amending their state constitutions in the 1890s to make disenfranchising laws permanent.[7] Many people are familiar with this period in American history, but the tendency is to view it as an unfortunate episode in which our democracy was at risk and that, ultimately, right prevailed with the 1965 Voting Rights Act. Yet this narrative ignores that the disenfranchisement of African-Americans was part of a larger story about how the expansion of democracy often walked hand in hand with election stealing techniques.

Dirty tricks, incendiary rhetoric, voter suppression and incompetence have long been a mainstay of elections that are marked by intense partisanship and voter interest.[8] For example, some commentators point to the “swift boating” of Democratic presidential candidate John Kerry in the 2004 election as some of the dirtiest campaigning ever. However, numerous elections have featured vitriolic, misleading and dishonest statements about presidential candidates, including the famous 1964 Daisy ad in which Lyndon B. Johnson suggested that nuclear war might result if Barry Goldwater was elected president.

Voter suppression is also as American as apple pie. In the early nineteenth century, political machines in big cities would routinely bus their supporters to various polling locations to intimidate the opposition, not unlike the actions of the Republican National Committee in the early 1980s that resulted in a three decades long consent decree that barred the RNC from challenging the qualifications of voters at the polls. While not of the same scale as the Tammany Hall operation, this behavior by nineteenth century politicos was also similar to the election fraud that occurred in North Carolina in 2018 in which a Republican operative forged absentee ballots and engaged in other malfeasance in a very close congressional election.[9]

There are numerous other parallels between our current situation and that of past elections. When the working class threatened the interests of robber barons in late nineteenth century, for example, the illiterate and semiliterate poor were kept from the polls through literacy tests and poll taxes, not unlike the restrictive voter identification laws introduced after the Shelby County v. Holder decision.[10] As Professor Hasen notes, some of these laws had to be gradually relaxed in order to limit their disenfranchising impact.[11] Similarly, much of the incompetence that Professor Hasen identifies in his book by election administrators has not been uncommon.[12] During the nineteenth century, wrongfully disenfranchised voters routinely filed suit against poll workers who illegally turned them away at the polls.[13]

Polarization tends to magnify these dangers that are, in fact, a part of almost every election, and Americans wait until things have reached a fever pitch before panic sets in. Similar to the election of 1888, the 2016 election was the second election in a short period of time—sixteen years—in which the popular vote winner did not win the Electoral College. Another similarity is that our time, like many other episodes in history, is marked by hyperpolarization, making it more susceptible to the election meltdown of which Professor Hasen warns. But the reality is that the baseline for our system is always the prospect of an election meltdown; we operate amidst chaos that has broken the system on occasion and will break it again.[14]

Each time the possibility of another breakdown in our political system presents itself, which has been far more often than we want to admit, we never take steps to fix the core structural problems that continuously bring us back to this moment of chaos. What this means, in my view, is not that we should see these risks as a normal and expected part of American politics; foreign intervention in our elections, for example, should not be considered “normal” by any stretch of the imagination. Rather, this current dysfunction means that our problems are systemic and not a product of any one political actor or political party. Our system is fundamentally incapable of dealing with times of intense partisan polarization, and we must stop acting like these times are unprecedented, regardless of how they feel at the time.

Structural change is the only way to get us out of our predicament. Any other suggestions might get us past the current election cycle, but it only pushes off a potential breakdown in our system to 2022 or 2024. Engaging in street protests, acquiescing in a Supreme Court decision resolving a disputed election, enacting new federal voting rights legislation, increasing civics education…many of Professor Hasen’s suggestions are important and well-intended.[15] Without an affirmative right to vote in the U.S. Constitution or meaningful Electoral College reform, however, all of these suggestions are an example of, to use his language, “putting a band-aid on a gunshot wound.”[16] The system is broken, and for two centuries, we have engaged in piecemeal solutions to solve immediate crises, but we have not taken steps to effectively limit the pathologies that continually bring us to the brink of disaster. Until we can move from a baseline of potential election meltdown by changing the constitutional structure of our elections, chaos will always be with us.

Franita Tolson is Vice Dean for Faculty and Academic Affairs, and Professor of Law at USC Gould School of Law. You can reach her by e-mail at ftolson at law.usc.edu

[1] People make this assumption despite clear evidence to the contrary. See, e.g., The Election of 1860.

[2] Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy 10 (2019).

[3] James L. Baumgardner, The 1888 Presidential Election: How Corrupt?,” 14 Presidential Stud. Q. 416, 416 (1984).

[4] Id. at 421.

[5] Id. at 421-22.

[6] Franita Tolson, What is Abridgment? A Critique of Two Section Twos, 67 Ala. L. Rev. 433 (2016).

[7] Id.

[8] See Susan Herbst, Rude Democracy: Civilty and Incivility in American Politics (2020) (arguing that our elections have always been uncivil). See also Joanne B. Freeman, The Field of Blood: Violence in Congress and the Road to the Civil War (2019) (detailing how the breakdown of political norms and debate over the course of the nineteenth century lead to violence on the floor of Congress).

[9] Hasen, supra note 2, at 1-2.

[10] Shelby Cty. v. Holder, 570 U.S. 529 (2013) (striking down the preclearance formula of the Voting Rights Act of 1965 that required certain jurisdiction to obtain federal sanction to change their voting laws)

[11] Hasen, supra note 2, at 32-42.

[12] Id. at 47-52.

[13] See, e.g., Kilham v. Ward, 2 Mass. 236 (Mass. 1806) (holding that someone born in the colonies, but absent during the Revolutionary War, was an American citizen and could not be denied the right to vote); Stewart v. Foster, 2 Binn. 110, 1809 Pa. LEXIS 39 (1809) (holding that an alien who has paid taxes and lived in the borough for one year preceding an election for borough officers was entitled to vote because of his “common interest with other inhabitants”); Lincoln v. Hapgood, 11 Mass. 350 (1814) (temporary absence from town did not render ineligible one who met all of the prerequisites for voting); Catlin v. Smith, 2 Ser. & Rawl 267, 1816 Pa. LEXIS 13 (Penn. 1816) (finding that the plaintiff was not impermissibly disenfranchised where he failed to pay his taxes at least six months before the election, as required by law). See also Robert J. Dinkin, A Study of Elections in the Original Thirteen States, 1776-1789 4 (1982) (“In the past, sheriffs and other officials in the colonies had often interfered with the voting process, stifling the popular will.”).

[14] Baumgardner, supra note 3, at 423 (noting that the 1888 election was definitely corrupt but it “was not different from other contests of that decade.”).

[15] Hasen, supra note 2, at Chapter 5.

[16] Id. at 125.

Posted 9:30 AM by Guest Blogger [link]