Tuesday, December 01, 2020

The Somewhat Slower Unraveling of Constitutional Democracy

by Neil H. Buchanan
Just over four years ago, I warned that Donald Trump's 2016 Electoral College victory could represent an "extinction event" for constitutional democracy.   The purpose of a warning, of course, is to offer people the opportunity either to prevent or at least prepare for the consequences of something bad.
In the ensuing years, I have at times (e.g., here and here) suggested that the United States is in fact a "dead democracy walking," which would mean that it is too late to prevent disaster.  Sadly, this is still true, even if Joe Biden takes the oath of office next month.  The death throes will most likely take a few more years to play out, for which we should all be grateful, but there is no reason to be hopeful that we have restored America and ended Republicans' authoritarian threats going forward.
If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it seems certain that things will still turn out badly.
My concern was never that Trump could win reelection on anything remotely resembling a fair contest, because the nature of his 2016 surprise win was so difficult to imagine being repeated.  This year's outcome turned out to be closer than I expected in the swing states that could have produced another split between the popular vote and the Electoral College, but we now know that Trump indeed was not able to win a second term under the rules, even with Republicans continuing to suppress Democratic votes.  The only question was whether he would try to supersede the will of the people by staying in office through any of various versions of a coup (some possibilities being bloodless, others not).
And try he has.  Indeed, even though I have significantly calmed down over the past few weeks about the possibility that Trump will somehow stay in office after January 20, 2021, I am still not sure that the danger is behind us.  Even a news article from yesterday's Washington Post that described yet more steps being taken to finalize the election offered some reasons for continued worry: "The legal contests in Arizona are not over, however. It is one of several states that permits election results to be challenged after certification."  Also from Wisconsin:
"State law includes a provision allowing a campaign that loses a recount five days to challenge the results in court, meaning the Trump campaign can still seek to challenge Evers’s move. In a statement Monday, the state elections administrator, Meagan Wolfe, said a judge could still order the certificate of ascertainment to be amended should Trump win in court."
It is still true, of course, that the qualifier "should Trump win in court" is a source of great comfort.  Even so, the hapless Rudy Giuliani is still at it:
"Giuliani claimed the election had been stolen from the president and called on the legislature to choose its own electors to support Trump.  Giuliani compared the move to the self-sacrifice of 'losing your life on a battlefield.' ... 'Your political career is worth losing if you save the right to vote in America,' he said. '... That’s really what’s required right now.'"
Again, that seems exceedingly unlikely, but Trump -- far from taking the time to come to terms with his loss -- is still busily trying to find Republicans who are willing to do what he wants, which means either to throw out enough votes for him to claim to have won three swing states or to have the state legislatures override their own citizens' votes.

Let us assume for now, however, that all of this will go nowhere and that my lingering (if somewhat muted) panicked vigilance is unnecessary.  Even if our democracy's death is not going to happen in the next two months, what will happen after that?

Two recent columns have offered very good reasons to think that we have, at most, four more years of something like normal before the final breath of the rule of law is drawn.  Law professor Edward Foley in The Post runs through many reasons for concern, and Jeff Greenfield offered an even better analysis in Politico.  Greenfield's title: "Did American Democracy Really Hold? Maybe Not."  There is now a clear path for Republicans to roll out their anti-democracy end game a bit more slowly, even if they do not ram through a Trump coup between now and Inauguration Day.

One thing that will be very helpful in their efforts is a Supreme Court case that endorses the nonsensical "legislatures-only theory" -- the claim that the references to state legislatures in Articles I and II truly mean "legislatures without any input from the state's other branches of government."

Because there is not likely to be a case directly on point that comes before the Court in the next four years, this would have to be included as very loud dicta in some other case.  But given that the Court has already been given the opportunity to weigh in on things like the constitutionality of nonpartisan redistricting commissions -- where a legislatures-only reading would actually require one to believe that the state's citizens themselves have no power to stop a state legislature, even through ballot initiatives -- it is easy to imagine that the Court's conservative bloc will be given some opportunities to announce that Republican legislatures can bypass Democratic governors to change election rules.
The Court's Republican ideologues would not be so crass as to use those terms, but they could certainly make it clear that they would rule in favor of a legislature that has gone rogue.  And if that is known in advance, it will simply give free rein to future versions of the legislative leaders in Michigan who -- this year -- refused to steal the election.  What if they had been able to say: "The Supreme Court said that we have the power"?

When would those legislatures act?  One possibility would be to wait until shortly before the next election, changing their rules from "the voters decide" to "we decide" in states where the Republican might lose.  But why not act sooner?

The short answer is that those legislators themselves are subject to the voters' will on a regular basis, and telling one's own voters that their state is not going to be holding presidential elections is potentially explosive. 

Although that might seem to be a big deal, there are various fig leaves that one could fashion for this kind of power grab.  For example, a state could have people vote for president in a general election, but the vote could be deemed "advisory," where the legislators who pass the new scheme offer non-binding promises that they will obviously never override the will of the people.
Or the legislature could say that the vote will be binding only if there is no fraud or hint of fraud, setting up a sham procedure by which the legislature could determine that there was indeed fraud.  ("If the leaders of both houses of the legislature agree that there are serious concerns that the election's results are the result of fraud, malfeasance, or incompetence, the legislature shall appoint electors who will vote for the candidate who truly won the state's election.")

One must also ask whether Republicans would worry about any of these niceties.  It is quite possible that Republican voters -- who now overwhelmingly think that the 2020 election was stolen from Trump -- care more about winning than voting.  If they are told that the new plan is a way to guarantee that a Republican will always win, they might be fine with that.
Also, as I have noted before, even these swing states have incredibly safe Republican legislative majorities, thanks to gerrymandering.  It is becoming ever less possible to think that Republican voters would say, "Well, I don't like having my democracy taken away from me, so I'll vote for Democrats for the state house and senate to punish Republicans."  South Carolina's voters were given as clear an example as one could get of a politician lying to them and admitting it -- Lindsey Graham's shameless back flip regarding Supreme Court confirmations during an election year -- but even though Graham's opponent was well funded and an excellent candidate, the state's voters rewarded party loyalty and did not punish the offender.  Being a loyal Trump Republican meant more than being a minimally decent human being.

In the end, this is why I am so pessimistic about the future of the country.  The Republicans have spent decades doing everything possible to allow themselves to enjoy minority rule.  They have suppressed votes in myriad ways, and their judicial appointees let them do it.  (Their ultimate martyr, Robert Bork, believed that the Supreme Court was wrong in its one person-one vote decision.)  When Anthony Kennedy punted once again on gerrymandering in 2018, that guaranteed essentially permanent minority rule in many states.  Basically, once Republicans gain control of any legislature, they do everything possible never to lose control again.

That means that Republicans can now go about the business of, say, turning the once-obscure process of certifying election results into purely partisan exercises.  The people in Georgia, Michigan, and elsewhere who said that they had no choice under the law but to declare Joe Biden the winner will have no such limitations in the future, even if the Supreme Court does not give them the green light.

Certainly, having Trump still in the White House going forward would be uniquely awful in many ways.  We should not, however, imagine that the future will see our political system become more representative of the nation's citizens.  Long before Trump, Republicans were putting in place the necessary elements of permanent minority rule.  I am glad that their end game seems to have been delayed by one presidential term.  But after that, what will stop them?


Henry Baker said...

“Voter suppression.”

Boy, the Republicans are bad at this. The 2020 election had the highest rate of voter turnout going back to the 19th century. Tens of millions more votes were cast than in 2016. If only they could suppress votes as effectively as they could get judges confirmed, we might be in trouble.


Wow, the Republicans are also bad at this. According to the New York Times, the Democratic Party got 50.5% of the total house vote. 435 x .505 = 219.675. Democrats currently have at least 222 seats, and may end up at 223 or 224. You have to be pretty bad at gerrymandering to fail to even prevent your opponents from overperforming their proportion of the vote.

Republicans are so bad at using these strategies to impose “authoritarianism” that a reasonable observer might wonder if that is their strategy at all. (One might also wonder about the propriety of extolling the endangered status of democracy while also lamenting that those plebe South Carolinians were too stupid to pick the right candidate, but that’s another story)

Joe said...

There are 535 seats. Being off by four statistically is about zero.

Moving past semi-trolling, a good judge here is to see how a party did in specific states where there is some ability to gerrymander. So, maybe one state would break down fairly evenly in the popular vote but by drawing lines in a certain way they can win the delegation in a lopsided way. Not doing that will confuse a lot of votes in a few areas where one party dominates anyway.

Voter suppression also will only get one so far in raw numbers. One might even say on some level, it is counterproductive for Republicans to focus so much on that though there are ideological reasons for them to do so. In specific areas, voter suppression does have more effect. Some places turn on very narrow numbers. Suppression is of some value there. Again, if it is so much of a failure, maybe the party should stop putting so much emphasis on it.

Henry Baker said...

435, not 535, and 4 seats is (at least in a house this evenly divided) a pretty big deal.

But even leaving that aside, if the Democratic Party ends up at or above it’s expected total based on vote proportion, then Gerrymandering can’t have really played a negative function to the Democrats, unless you are arguing that in a fair system Democrats would overperform their vote share? Another way to look at it: I’m not saying that the few overperformed seats that the Dems may end up with Is evidence that Democrats are engaged in some nefarious plot to impose left-wing “authoritarianism.” But I am highly skeptical that a very slight *Democratic* overperformance should be construed as evidence that the *GOP* is engaged in a similar nefarious plot.

And I take your point, on a local level there are gerrymandering effects. Republican-drawn districts in Ohio and Texas likely cost the Democrats a few seats. Democratic-drawn districts in Illinois and Maryland likely cost the Republicans a few seat. In the end, we appear to be somewhere between a wash and a slight net gain for the Democratic Party.

Michael C. Dorf said...

Prof. Buchanan was (quite obviously) discussing gerrymandering in state legislatures.

Henry Baker said...

“Prof. Buchanan was (quite obviously) discussing gerrymandering in state legislatures.”

I’m reminded of the (quite sensible) point that I’ve seen made by a few people in the last several weeks: if Democrats would go through the trouble to rig the election for Biden, why wouldn’t they rig the Senate while they were at it? Are they both incredible masterminds of election rigging (to do so without leaving any evidence) and yet also oddly incompetent (to rig the POTUS vote and completely forget about the down ballot?

I can’t find much data on total vote % versus seats won at the state level (although I’m sure (hopeful?) it will eventually be available, so in the meantime I can only ponder why the Republican masterminds of gerrymandering were able to nefariously and undemocratically keep hold of a raft of state houses, while at the same time unable to turn 48.5% of total House of Representative votes into 218 seats.

I’d also point out that it goes both ways. This monstrosity: wasn’t designed by Trump or the GOP: https://planning.maryland.gov/Redistricting/Documents/2010Maps/Leg/Statewide-32015.pdf.

Which, before I’m accused of whataboutism, I’m not using to justify GOP gerrymandering efforts. I’m not a fan of political gerrymandering, but it is not an innovation, or a novel plot by Republicans. It’s just part of politics. As an aside, gerrymandering of House Districts, from the Democratic perspective, is rational. Likely, Maryland (and Illinois) Dems wouldn’t feel compelled to gerrymander their U.S. house districts if Texas and Ohio Republicans weren’t doing the same. “We don’t like it, but we can’t unilaterally surrender, either” they might reason. But there is far less justification for a 65% democratic state to gerrymander its state house districts.

Bob Moss said...

Re: "legislatures only", I feel like the proverbial broken record, but again: A case "directly on point" does not require a case that explicitly says, "state election laws are subject to state judicial review, including with respect to federal elections". McPherson v. Blacker is already right on point. In making the case that how electors are chosen is entirely up to the state legislatures (excepting dog races and selling the positions), McPherson noted that, instead of passing legislation providing for the popular election of Presidential electors, a state legislature could assign the job to the state supreme court. There is no logical necessity that this would have to be done by legislation. And most watertight of all, at the beginning, many state legislatures simply chose the electors. That this was not done by passing legislation is clear, because in the case of election laws, McPherson cites the statutes specifically, but in the case of the legislature choosing, there is no such citation. Enacting legislation to provide for popular election of Presidential electors is thus an OPTION for the legislature, one that, under each state constitution, subjects the procedure to review by the state supreme court. Legislatures choosing the election law option could provide that, with respect to federal elections, it is not subject to state judicial review (which could open a can of worms). Neither would other options, such as choice by the legislature itself, be subject to state judicial review.

Joe said...

Prof. Buchanan was (quite obviously) discussing gerrymandering in state legislatures.

Since the Republicans control more state legislatures, this would make something used by both parties [which my comment was crafted to grant] be more useful for them. Plus, the Supreme Court held partisan gerrymandering generally is not justiciable, splitting ideologically. The "state legislature" constitutional rule flagged also was something that divided the Supreme Court ideologically.

But, just going by the comment I directly responded to, stick by my original argument. You can't just cite a raw number. Noting the correction, 4/435 statistically is small. Looking at raw numbers, gerrymandering very well can help a lot in that context. The talk of it being a wash etc. would warrant more info than provided.


I checked the NYT House return numbers. They are not complete given there are a few races still open. Currently, it has the Dems having 50.7% of the popular vote and Republicans at 47.9%. The Republicans have basically exactly their representation with 209 seats so far. The Dems have +2. With four seats left.

This doesn't tell me too much. I'd need to know how the areas where gerrymandering can change the mix worked out.

Joe said...

Actually, it might round off to +1.

Henry Baker said...

Earlier today when I checked it was 50.5 to 48.5 or something like that. It must have updated in the last few hours.

In truth, it appears that non-dem non-GOP candidates (in the aggregate) are the ones who really underperformed, although that is much more an artifact of first past the post winner take all single-seat districts, rather than gerrymandering. Third party candidates look to have gotten about 1.4% of the votes, and appear on track to take zero seats. 435 x .014 = 6.09, so they underperformed by about 6 seats. Democrats appear to have overperformed by about 1 seat, and Republicans currently appear to be within one seat their expected number, with 4 seats outstanding.

Looking at just the two-party vote is probably more accurate, and there, Dems are currently at 51.42%, and the GOP is at 48.58%. It is very likely, unless the Democrats get exceeding lucky with the remaining outstanding races, that both parties will end up within 1 seat of their expected. Even if the GOP ends up +1 or +2 seats, that is pretty weak tea when it comes to gerrymandering. And again in the absence of specific evidence by Professor Buchanan (he doesn’t list a single state house where Dems got more votes in the aggregate than Republicans, but lost control of the chamber due to gerrymandering) I don’t know of a better methodology to refute the claim.

Michael A Livingston said...

Here’s the problem: the essay begins with the suggestion that Trump’s victory would have been the end of democracy, which strongly suggests that Democrats would have been justified in refusing to accept it. But his defeat proves the same thing, because he didn’t willingly accept it. What precisely would falsify this theory, short of the Republicans disappearing and a one-party state emerging? That probably isn’t going to happen.