Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Default of American Politics: The Perpetual and Never-ending Prospect of an Election Meltdown
|
Monday, March 02, 2020
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.
[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]
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |