Balkinization: Too Little Hope, Not Enough Gloom

Too Little Hope, Not Enough Gloom

Guest Blogger

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

Tabatha Abu El-Haj

Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy is an accessible, engaging read that synthesizes the stories Rick Hasen systematically collects on his invaluable blog into a graphic depiction of the stresses on our electoral systems. The most significant include: insidious allegations of voter fraud to provide cover for voter suppression; pockets of incompetence in election administration, including in critical swing states; and hacking and misinformation—the political “dirty tricks” of the digital age. Under the pressure of intensifying political polarization, these three phenomena fuel the most serious threat of all: incendiary rhetoric about “stolen elections.” This rhetoric, which has spread to the Democratic Party, Hasen worries is undermining the bedrock democratic commitment to peaceful transitions of power. Not surprisingly, Hasen devotes considerable space to condemning not only those who undermine the public’s faith in the integrity of our electoral system through the spread of fabricated claims about in-person and non-citizen voter fraud but also those who make reckless assertions of “stolen elections.”

Election Meltdown, thus, invites all of us to reflect on the long-term health of American democracy. By writing in a straightforward and vivid manner that is welcoming to those outside the legal academy, Hasen invites a wider audience to reflect on the norms that support the democratic institutions Americans have long taken for granted and the role civil society will ultimately have to play to secure the future of those institutions. In a passage emphasizing how norms, such as the commitment to peaceful transitions between elections, critically support democracies, Hasen writes, “We have to act now to take steps so that the next time there is a razor-thin election—and there will be one, sooner or later—our civil society is strong enough to withstand foreign and domestic efforts to tear us apart.” In this way, Hasen has done more than simply record the specific and cumulative risks of an election meltdown in 2020.

Still, for all that commends it, Election Meltdown suffers from both too little hope, and not enough gloom.

Not enough gloom

In a book filled with vivid stories of electoral incompetence, good old-fashioned ballot box stuffing, and the prospect of a 2020 election meltdown due to possible foreign sabotage in a swing state or one candidate’s refusal to concede in the wake of a tight race, how, it would be fair to ask, could there possibly be not enough gloom?

The answer, in short, is that Hasen has reasonably chosen to focus on confidence in the fairness of elections, but this eclipses the extent to which Americans are increasingly disenchanted with democracy itself.

While the narrative about “stolen elections” is an important discussion, it reflects deeper frustration with a system that appears to be “‘rigged’ against the little guy.”

The cratering of public faith in democracy extends to concerns about the very fairness of democracy itself and the fear that a billionaire might be able to buy the Presidency.

The public is exhausted. The political sphere is dominated by petty partisan bickering among elected officials who appear to cater only to their big donors and ideological activists. Persistent legislative inaction exacerbates income and wealth inequality while working Americans are left struggling to pay for healthcare, daycare, and education, despite consistently positive aggregate economic indicators. Indeed, nonvoters frequently cite a lack of faith in the efficacy of voting to explain their decision to forego their democratic rights.

Concerns about voice, responsiveness, and equity drive the current disenchantment with our democracy. Large swaths of the public experience the world that the Anti-Federalists feared: a country in which ordinary people are excluded from public affairs, while national leaders, only weakly accountable to their constituents, have enormous agency to make law and policy. And they are not entirely wrong. Citizens United plays an outsized role in the public narrative, but the public’s perception of stubborn imbalances in political influence is fair. Despite increased responsiveness, largely in the Obama years, concern about the pace of legislative action to address wage stagnation and economic opportunity continues to make sense.

Election Meltdown suffers from too little gloom to the degree it fails to acknowledge the threat that dysfunction in governance poses to the future of democracy.

Too little hope

At the same time, Election Meltdown suffers from too little hope. Unlike its vision for election reform, its vision for what can be done to shore up civil society is limited, while the positive democratic trends that the 2016 election has surprisingly inspired are ignored.

Recognizing the field of opportunity

Legislation does far more than simply distribute or deny benefits and rights to individuals. It shapes civil society by influencing individuals’ relationship to, and participation in, democracy.

Legislation can engage citizens and incentivize the creation of civic groups, or it can breed political disengagement, demobilization, and anomie. Programs, like Social Security and the G.I. Bill, that distribute visible and generous benefits in fair, non-arbitrary ways, recognize individuals’ citizenship and communicate the value of government. Individuals who experience the utility of government take more time to participate in civic and political groups, mitigating the socioeconomic biases of political engagement. Equally important, they create incentives for political parties and elites to mobilize those same beneficiaries. Programs that recipients experience as harsh, paternalistic, or stigmatizing and policies that distribute government largesse invisibly through the tax code do exactly the opposite.

Indeed, the present participatory and organizational inequalities that impede the ability of low- and middle-income Americans to resist the political sway of elites is substantially a byproduct of the partial and uneven dismantling of New Deal programs since the 1980s. New Deal welfare policies focused on the poor were replaced with programs that recipients experience as harsh, paternalistic, or stigmatizing. At the same time, the war on drugs substantially enhanced the criminal penalties for drug crimes, with a disparate impact. Among the fall out has been the demobilization and disenfranchisement of economically and racially marginalized Americans. In this regard, the political energy of seniors today, including those of average socioeconomic status, like the political power of the AARP, is not simply fortuitous; it results directly from the fact that Social Security and Medicare—programs that are visible, generous, universal for those eligible, and well-managed—have not been scaled back.

The lesson to be drawn from this history is that we have more entry points to restore American democratic institutions than good governance reformers often suppose. Laws regulating election procedures are not the only laws that shape political capacity and participation. More importantly, a number of the legislative proposals that are already on the policy agenda—universal pre-K and free college tuition, paid family and medical leave, expansion of government health insurance, and felon re-enfranchisement—would go a long way to restoring faith in democratic institutions. The key is to pursue versions of those policies that will produce positive civic returns.

Recognizing the strengths that exist

Election Meltdown also suffers from too little hope in failing to credit the current positive trends in our democracy. The temptation to catalogue the threats to American democracy is great, and, as Hasen has amply shown, those threats abound. But that temptation must be tempered by an acknowledgement that the democratic news is not all bad. The Trump presidency has accelerated polarization and the decay of an array of essential democratic norms, but it has also accelerated a range of encouraging trends that predate it.

Voter turnout in presidential elections has been steadily rising since 2008, rapidly approaching that of the mid-twentieth century despite systematic efforts to disenfranchise voters for partisan ends. While the electorate that turns out is neither socioeconomically nor generationally representative, it is important to recognize that women now vote at the same or higher rates than men, and African Americans, particularly women, vote at higher rates than their socioeconomic status would predict. Similarly, African-American youth, despite lower levels of income and education on average, are more civically and politically engaged than their white counterparts. The past decade has also seen an uptick in mobilization between elections around an array of issues ranging from income inequality to police brutality to climate change to mass shootings.

The election of Donald Trump, meanwhile, triggered an unexpected and unprecedented level of political engagement and organization. One in five Americans report participating in a street protest or political rally in the first two years of the Trump administration. But recent political engagement has not been limited to demonstrations. Over 6,000 grassroots political groups have been formed to oppose President Trump’s policies, many organized by middle-class women. We have also seen teachers’ strikes and protests in right-to-work states, including West Virginia, Oklahoma, Arizona, Colorado, North Carolina, and Kentucky. The long-term value of this political reorganization should not be underestimated.

The 2018 elections were the fruit of these trends, producing the highest level of midterm voter turnout in nearly a century. They also brought record numbers of women to office and presented a significant step forward in diversifying the membership of Congress. Jahana Hayes and Ayanna Pressley became the first African-American women to represent their respective districts—although the most striking thing about Ms. Pressley’s candidacy is that, like nearly 70 percent of Americans, she does not hold a bachelor’s degree.

Most importantly, those outcomes were a product of the aforementioned civic and political revival. The efforts of activists, but also the Democratic Party’s leaders, to expand and activate a broader electorate led to a fortuitous emergence of a new cadre of party faithful—people who are using their connection to neighbors, coworkers, classmates, and friends (not just their money) to mobilize for political change. While citizens and social capital did not replace donors and money in the recent midterms, they ensured they were not the only drivers of the election. Moreover, these efforts gave new momentum for candidates to argue, like Ms. Hayes, that experiences like growing up in a housing project, or working one’s way through community college as a teen mother, or teaching in a public school as a union member, make one exceptionally qualified to for elected office.

These stories of hope are just as important as the catalogue of dismay. The future of American democracy is uncertain. Cataloguing the threats to our elections is necessary, but it is no longer sufficient. Restoring faith in our democratic institutions will require us to deepen our understanding of the role civil society plays in democracy and the role that law plays in shaping the capacity of civil society to serve its democratic functions. It will require a keen eye for identifying those political opportunities that do exist to address the economic and educational needs and dignity of everyday Americans in ways that motivate them to participate in our democracy. It will require taking the incremental steps that are possible and persevering in the face of failure.

Tabatha Abu El-Haj is an associate professor of law at Drexel University’s Thomas R. Kline School of Law. You can reach her by email at taa53@drexel.edu.

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