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.