When Winning Elections Is Not Enough, What Then?

by Neil H. Buchanan

Earlier this summer, President Joe Biden and Speaker Nancy Pelosi were raked over the coals by some very understandably frustrated Americans who did not understand top Democrats' tepid reaction to the Supreme Court's ending of abortion rights.  The Court's decision, because it had been leaked months prior, was hardly a surprise.  And even though it still came as a shock, there was no excuse for Democratic leaders not to have responses ready to go, both in terms of political messaging and substantive policy responses.

Instead, the response by the nation's top Democrats was to fall back on tired platitudes once again, telling people that "we just need to win more elections."  That that is tautologically true does not make it helpful, and Pelosi's "now you have to give us even more money to win even more elections" seemed especially tone-deaf (at best), with Democrats having won in 2020.  Yes, if Democrats had been able to pick up some more Senate seats in 2018 and 2020, that might have mattered -- although maybe not, given that there are probably several more Manchin/Sinema types in the wings, willing to say that "the Senate's traditions are important" -- even more important, apparently, than democracy itself.
But it would be wrong to say that these Democratic leaders were merely re-litigating the past.  They were, more likely, saying what small-d democrats are supposed to say: If you don't like the results, you try harder next time and convince more people to vote for you.  The problem is that that is no longer a reliable strategy, for two reasons, one familiar and one less so.
The now-familiar reason that democracy is "so five minutes ago" is that Republicans no longer believe that it is possible to lose elections legitimately or that they should try to win future elections by appealing to more voters (choosing instead to suppress votes and gerrymander themselves into permanent power).  At best, then, Democrats need to win elections simply because they are willing to win legitimately but not to rule illegitimately, no matter what their opponents might do.

The less familiar reason, however, is that Democrats keep winning elections, but they also keep losing ground.  Consider a short list of examples that came to mind upon just a few minutes reflection:

-- In Florida, former Governor (and now US Senator) Rick Scott refused to grant ex-felons the right to vote, so pro-democracy people said, "OK, we'll do this the democratic way," and they won (in a landslide) a referendum in 2018 to amend the state's constitution to restore voting rights to ex-felons.  The gerrymandered legislature and a new governor then imposed a set of rules to evade the voters' will, and every Republican-appointed judge on the federal Eleventh Circuit voted to let them get away with it.

-- Progressives complained for decades about corrupt right-wing local prosecutors.  Finally, they decided to win some elections.  When they did, however, a billionaire manufactured a political putsch to oust Chesa Boudin, a progressive San Francisco prosecutor who was smeared and then removed from office via recall.  Shortly after that, Florida's governor announced that he had unilaterally removed a twice-elected prosecutor in Tampa for the sin of saying what he might do, not for anything that he had done.  (In making the announcement, the governor also decided to distort what was happening in San Francisco, just for good measure.)

-- Barack Obama won the presidency twice, but he was prevented from using presidential power to fill a Supreme Court seat, based on a completely contrived excuse offered by Senate Republicans.

-- Democrats have won elections for governor in Wisconsin, North Carolina, and Michigan in recent years, but the outgoing Republican governors and legislatures changed their states' laws to make it impossible for the new governors to do what the voters had elected them to do.

Nothing that I have described here is breaking news, and everyone who follows politics even casually knows about most of it.  Those examples came to mind because I have written columns about each of them (some very recently), but this is hardly an exhaustive list.  And nearly the entire Republican Party still claims that the Democrats did not legitimately win the presidency in 2020.  Even so, the allure among many Democrats of the "just win elections" trope is nearly irresistible.
What does it even mean at this point to say "just win"?  Political forecasters have baked into their models the fact that the generic Democrat in a congressional preference poll needs to be roughly 10 percent ahead of a generic Republican for the Democrats to have any chance of winning a House majority -- and that was before the Supreme Court guaranteed the Republicans another 7 safe seats by refusing to allow lower court judges to order district maps to be redrawn "too close to election day."  That is, the lower courts have found that the Republicans' maps are unconstitutional, and the US Supreme Court has not disagreed, saying instead that we have to run the next election with unconstitutional district maps.  Why?  To prevent "confusion."
More chillingly, there is a very real possibility of outright violence around the coming midterms and especially in the 2024 elections.  The examples above, after all, are at least technically legal and thus can be defended (disingenuously, but with a straight face) as being "not really cheating."  The Constitution does not specifically require that the Senate's advise-and-consent role include an up-or-down vote (although there was a norm that it would do so); the Florida constitution permits a governor to fire prosecutors (although there was a norm that he would only do so in extreme cases); and on and on.

Telling Democrats to "just win elections" and then saying, "but it's perfectly legal for Republicans to nullify the elections you win" is frustrating enough.  But with militant right-wing groups now apparently organizing to violently disrupt elections themselves, we would be telling Democrats to do everything that they can to win legitimately, only to find that their voters were too scared to show up.  It is all too easy to imagine gun-toting paramilitary groups "peacefully" surrounding strategically selected voting places in Atlanta, Detroit, and Philadelphia, to intimidate people of color.  And if the would-be voters refuse to be intimidated, what happens next?

Having said all of that, however, I do understand that there is no genuine alternative for Democrats.  When someone says, "Just go win some elections," Democrats will obviously not say, "No, we're not going to bother to try to win elections."  There is a real sense in which they just have to try as hard as they can and hope that they win, that the wins are not overturned, and that they are allowed to govern.

There are, however, situations in which non-Republicans do have a true choice, and they need to think clearly about political reality in making their decisions.  For example, an op-ed two days ago in The New York Times (written by an unquestionably well meaning journalist) provided a Civics 101-style lecture to Democrats, telling them not to pursue criminal charges against Donald Trump.  After running through the well known risks of prosecuting Trump, the author offered this:
[I]t’s imperative we set aside the Plan A of prosecuting Mr. Trump. In its place, we should embrace a Plan B that defers the dream of a post-presidential perp walk in favor of allowing the political process to run its course. If Mr. Trump is the G.O.P. nominee again in 2024, Democrats will have no choice but to defeat him yet again, hopefully by an even larger margin than they did last time.
There is an obvious risk: If Mr. Trump runs again, he might win. But that’s a risk we can’t avoid — which is why we may well have found ourselves in a situation with no unambivalently good options.
To be clear, that is a risk that we can avoid.  The author merely thinks that it is a bad idea to do so.  But in any event, consider the touching naivete of this argument.  "Don't prosecute this criminal, because he'll act criminally.  Just beat him fair and square."  Beating him fair and square should include keeping him off the ballot, if that can be achieved legitimately.
Yes, he might run from jail, or his supporters might become even more unhinged and do even more damage.  At this point, however, what we ought to know is that Democrats cannot merely assume that they can win elections or lose and then come back to try again next time.  There will not be a next time.  If Trump is ever president again, his vengeance tour will never end.

I am on the record (many times) saying that it is already too late.  If I am wrong about that, however, that does not mean that we can pretend that we are anything but on the precipice of losing it all.  "Plan B ... allowing the political process to run its course" is a nice plan if that course is at least minimally non-rigged.  Democrats cannot assume, however, that that process is what it used to be.
When the other side has made it unmistakably clear that they will do anything it takes to keep Democrats out of power, Democrats' only option is to use the legal power that they have while they still have it: "We'll decide not to use the legal system -- no matter how justified -- against Trump because we can win through the political system" might have made sense at one time.  But that time is not now.