Tuesday, March 01, 2022

Slim Hope to Save Democracy is Better than None: What Can Happen at the State Level?

by Neil H. Buchanan
 
It is hardly news that the institutions of democracy in the United States were never perfect, but anyone who has paid even a tiny bit of attention over the past six years has had reason to worry that things are reaching a tipping point beyond which we will completely lose our flawed democracy and become an autocracy.  Indeed, I am among those who have argued that we are already past that point and that we are now in the confusing period where it is still possible to deny what is happening even as we rush toward our post-democratic national (and perhaps global) fate.

Even I, however, have refused to give up all hope, if only because one never knows what hidden or ignored options might yet save us.  And even if it does turn out that the future cannot be changed, it is surely better to have exhausted every last possibility rather than merely to assume that there was never any point in trying.  I am thus constantly on the lookout for anything that suggests a way forward that might avert what currently seems inevitable.

To the possible rescue comes a new article from a rising star on the University of Wisconsin Law School's faculty, Professor Miriam Seifter: State Institutions and Democratic Opportunity.  Forthcoming in the Duke Law Journal, Professor Seifter's analysis highlights some possible ways in which state-level actions could push back against the increasingly bleak picture at the federal level.  Professor Seifter presented her draft at a faculty workshop at my law school last week, and with her permission (with caveats to be stated below the jump), I am using her remarks and that article to motivate and organize my thoughts in today's column.

Bottom line: Although I ultimately conclude that there continues to be much more reason for pessimism than optimism, the case for the latter is stronger than I previously allowed.  Given how grim the world is looking lately, anything that offers a glimmer of hope is to be welcomed.

Before getting into the substance, however, I will offer those caveats.  First, the article in question is currently in draft form (available on SSRN), meaning that it is a work in progress; and Professor Seifter tells me that she is making revisions to the article in response to feedback that she has received.  It is already a fine piece of work, but careful scholars want it to be clear when their papers are in non-final form, with ideas and arguments still being honed down.

Second, I should strongly emphasize that I am stating my interpretations and conclusions, not Professor Seifter's.  Especially because my take on her work is colored so heavily by my own writing about the death of democracy (work with which there is no reason to believe she was familiar when writing her article), it would not even be fair to say that I can confidently channel her thinking accurately through direct quotations from the draft article or from her talk.  After all, I am the one choosing which words to quote, and in what context to deploy them.  Although that is always the case, it is even more of an issue here, where I am filtering someone else's arguments through my own very strongly held views.

To illustrate that point, during the Q&A last week, I began my comment/question by describing Professor Seifter's views as "optimistic," which struck me as an unremarkable characterization.  She gently corrected me, however, by saying that she was describing "possible opportunities" but that she meant to express no opinion about whether a person should feel more or less optimistic because of them.  That is an important difference, and I only am aware of it because I happened to offer that inadvertent mischaracterization out loud.  Who knows what else I might get wrong?

So this is more than the usual "all errors are my own" style of disclaimer.  The draft article is thought-provoking and deserves a wide readership, but my column today is pulling opportunistically from that article to inform and possibly adjust my own body of work.

Having thus properly pointed the arrow of blame at myself, I can now state that I am in fact a bit more optimistic today than I was before I read Professor Seifter's draft.  The first paragraph of her Abstract captures the moment well:
The burgeoning commentary on democratic decline in the United States focuses disproportionately on the national level. And seeing a national problem, reformers understandably seek to bolster democracy through large-scale federal solutions. Although their efforts hold popular appeal, they face strong institutional headwinds. As scholars have extensively documented, the Senate, the Electoral College, and the Supreme Court today are skewed against majority rule. Despair grows.
I am not alone!
 
Importantly, attempts by others to claim that there is reason not to despair have generally been unconvincing, even on the margins.  For example, here on Dorf on Law few weeks ago, I mocked a political writer who had mocked pessimists like me  for "keening and whingeing."  I responded in kind not because people like me might are angry about someone saying we are wrong (in fact, we have no desire to be proved right) but because his arguments were so flimsy.
 
Indeed, what was ultimately that author's strongest argument was that Democrats can continue to offer compromises on voting rights (beyond the compromises that Republicans have already rebuffed), and if they do not do so, that would be proof that Democrats "have more to gain from campaigning in November against Republican intransigence on this issue."  Apparently, there is no reason to keen and whinge because Democrats might conclude that Republicans' voter suppression efforts have been so successful (and Republican's intransigence so unremitting) that the less bad option is to throw a Hail Mary and hope to pump up voter turnout -- even though Republicans' ongoing corruption of the processes of counting and certifying votes makes even a historically successful turnout effort most likely pointless.  As I summarized that argument: "Democrats will win by winning."  Great.
 
Again, however, I would like to find reasons to reduce my sense of despair.  Being told not to despair because good things might happen if you ignore the bad things is not, however, the basis for even a tiny bit of hope.  By contrast, Professor Seifter's contribution is based on noting that those of us who are despairing of the future have paid precious little attention to state institutions.  Because she is a serious scholar who has great familiarity with work in this area, this should command everyone's attention.
 
Helpfully, the draft article offers a definition of democracy, which is important because we cannot know if we are about to lose it unless we know what "it" is.  Focusing on "the democratic pillar of majority
rule—a basic threshold for democracy that recent developments threaten," the draft article adopts a "minimal definition that should hold broad appeal," specifically that "an institution establishes a threshold of majoritarianism when the candidate or party (or position, for ballot initiatives) with the most voter support prevails" (draft at 10).

During Q&A, I asked how to view that definition in light of something like Brexit in the UK.  Even setting aside the questionable legitimacy of the 2016 plebiscite (which was not even clearly going to be binding), my question was instead based on the 2019 general elections that allowed Boris Johnson's Tories to "sweep" into power and thus to guarantee that "leave means leave."  It was an under-reported fact, however, that the parties opposing so-called Hard Brexit received more votes than the parties that favored it.
 
I acknowledged that this preliminary question was not directly responsive to the contributions of the draft article, but I pointed out that even a system that we have long thought to be clearly democratic -- one that has no Senate, Electoral College, or even separate executive branch -- could not deliver majority rule on perhaps the most profound question to face that nation since World War II.  We might, therefore, want to reconsider our assumption that majority rule is ultimately what is at stake.

Indeed, Professor Seifter acknowledges that she is adopting a "thin definition [that] may not go far enough: when participation in the political community is restricted or suppressed, we cannot speak meaningfully of rule by the majority" (id.).  While that acknowledgement is (for very good reasons) aimed more at the problems emerging in the United States, it does leave us wondering whether we are likening problems that are not alike: Britain's first-past-the-post system delivers nonmajoritarian results, and so does the American constitutional system, especially as further corrupted by Republicans in the last few years.

Note, moreover, that it is not quite accurate to say that the pessimists like me have been ignoring the non-federal level.  After all, the voter suppression efforts and the legal changes that will allow Republican partisans to refuse to certify unwelcome results are all happening at the state level.  We hoped that the Democrats could use their control of the White House and both houses of Congress to undo what the states were doing (and we also hoped that the U.S. Supreme Court would not undo the undoing), but that is not the same thing as ignoring the states.
 
Again, I do not mean to put words into Professor Seifter's mouth.  She says that the pessimists have been focusing "disproportionately on the national level," not exclusively.  Even so, I think it is fair to say that any lack of proportionality has been driven by the fact that Democrats have no legislative power in the key states that are doing the most to end democratic accountability: most prominently Georgia, Texas, Florida, and Arizona.

Be that as it may, the most important contribution of the draft article is to point out that a lack of legislative power at the state level is not the same thing as a total lack of power.  Professor Seifter points out that state courts sometimes neutralize rogue legislative majorities (my term, not hers), and she also emphasizes the state-level ballot initiative process.  Moreover, because Republicans cannot gerrymander statewide races, it is (for the time being) true that key states like Wisconsin, Michigan, North Carolina, and Pennsylvania have Democratic governors who hold back the worst efforts of Republicans' manufactured legislative majorities.

A large part of the draft article then addresses why all of those safety valves for majority rule are under assault and can be inadequate.  Rather than summarize Professor Seifter's careful analysis here, I will note three thoughts that occurred to me as I read her draft and listened to her speak.

First, it is unclear how well existing ballot initiative opportunities work to protect the people from minority rule.  I have written here on Dorf on Law about the Florida ballot initiative -- which passed by a wide majority in 2018 -- that amended the state constitution in an effort to move my state out of the dark ages by re-enfranchising felons after they complete their sentences.  The state's Republican governor and legislature then imposed what amounts to a poll tax, but the Republican-nominee-dominated Eleventh Circuit (at the federal level) let it stand.  Similarly, the U.S. Supreme Court seems eager to prevent states' voters from taking redistricting powers away from state legislatures.

Second, it is not clear how long any of the state-level safety valves will be allowed to stand.  When North Carolina and Wisconsin elected Democratic governors and attorneys general in recent years, the departing Republican governors conspired with their legislative majorities to strip powers from the offices that Democrats would hold.  Heck, Georgia's Republicans took power away from their Secretary of State's office after Republican Brad Raffensperger proved insufficiently corrupt.  How long would such a state's legislature tolerate ballot initiatives before doing Florida's legislature one better -- not by merely overriding the results of specific initiatives but by eliminating them entirely?  (Again, I am not saying that the draft article ignored these matters.  I am merely relating my own thoughts.)

Third, Republicans will suddenly become anti-federalists (which, confusingly, means pro-federalist in the original sense) as soon as they are able to steal back the federal executive and legislative branches.  The Supremacy Clause will suddenly be their favorite part of the Constitution, allowing future Republican Congresses and Presidents to negate anything that they find unpleasant at the state level.  Post-Roe, abortion will no longer be something that "should be left to the states."  Congress will pass, the President will sign, and the Supreme Court will uphold a national ban on abortion -- all in clear contravention of majority rule.  States' open carry gun laws will similarly become binding elsewhere (or Congress will simply pass national legislation).

Despite all of this, I am processing Professor Seifter's insights via an analogy as to how we would deal with the rising waters of a flood as it surrounds our house.  We see the basement filling with water, and we start to move things to the ground floor.  When the first floor is hip deep, we give up on most of what is there and run upstairs, then move to the attic, then scramble onto the roof.  With each move, we know that if the waters continue to rise and no rescuers arrive, we are doomed.  Even so, the process takes time, and along the way we might discover ways to fashion lifeboats or other mitigating measures.

Thus, although my thoughts above suggest that everything will soon be under water, being reminded that there are other places to seek refuge in the meantime is reason to feel less pessimistic, if only a bit.  And the more time it takes, the more possible it becomes that some unknown rescue squad will save us all.  It is slim hope, but that is better than none.