The fight is for democracy

The stakes of this election are so high because the system itself is at stake.

I recently asked Melissa Schwartzberg, a professor of politics at NYU who specializes in democratic theory, why democracy survives in some countries and crumbles in others.

Why was I thinking about it? Oh, no reason. But her answer has been ringing in my head since. It explains much of what makes this moment in politics so distinct, so desperate.

“The really important question is when do electoral losers think that it’s in their interest to go along with their defeat, and when do they think they’re better off resisting and revolting?” Schwartzberg replied. “It has to be that they think they have some better chance of obtaining power in the long run by continuing to abide by the rules of the game.”

In American politics in 2020, both sides doubt that abiding by loss is the surest path back to power. This is an election — and more than an election, it is a politics — increasingly defined by a fight over what the rules of the game should be.

Democrats see a political system increasingly rigged against them and the voters they represent, and they are right. They are facing an Electoral College where a 2-3 point win in the popular vote still means Republicans are favored to take the presidency. They are vying to win back control of a Senate where Republicans have a 6-7 point advantage. The simple truth of American politics right now is this: Republicans can lose voters, sometimes badly, and still win power. Democrats need landslides to win power.

It gets worse. Democrats fear a doom loop. They are faced with the reality that when they lose power, Republicans will draw districts and change rules and hand down Supreme Court decisions that further weaken their voters, that pull America further from anything resembling democracy. Democrats have watched it happen in recent years again and again, as I document below. Losing begets losing, because in the American political system, electoral winners have the power to rewrite electoral rules.

But Republicans also see their position as desperate. They know their coalition is shrinking. They know that they are winning power but losing voters. They see a younger, more diverse, and more liberal generation building against them. They fear that Democratic efforts to expand the franchise and make voting an easily exercised right rather than a politically metered privilege will spell their long-term demise. They believe that mass democracy is inimical to their interests, and they state that fact baldly.

In March, when House Democrats proposed vote-by-mail options, same-day registration, and expanded early voting — a package Republicans blocked — President Donald Trump told the Fox and Friends hosts, “They had things, levels of voting, that if you’d ever agreed to it, you’d never have a Republican elected in this country again.”

Rey Del Rio/Getty Images

In recent months, Trump has made clear that he intends to contest the results of the election if he loses, even musing about delaying the election entirely. During the presidential debates, neither Trump nor Vice President Mike Pence would commit to a peaceful transfer of power in the event of a loss. “I’m urging my supporters to go in to the polls and watch very carefully, because that’s what has to happen,” Trump said darkly.

But Democrats, too, are preparing for a legitimacy crisis: What if Trump wins, but only because shocking numbers of mail-in ballots sent by Democratic voters were thrown out? What if Biden wins the popular vote by 5 points, but the election comes down to a 2000-style recount in Florida? What if the final vote on the Supreme Court is cast in Trump’s favor by newly seated Justice Amy Coney Barrett?

Of every election I have covered, this is the one where electoral losers seem least likely to automatically respect the results of the count. I am not saying crisis is inevitable. The likeliest outcome, judging from the polls, is that Biden wins by an indisputable margin and that outcome is respected. But the possibility of crisis is real, and if we have learned anything in recent years, it is to cease pretending that unlikely is a synonym for impossible.

The stakes are so high because the system itself is at stake — both sides are losing faith in the electoral system, and they doubt that they can win power in the future if they lose many more elections now. And perhaps they are right.

This is the fight behind the fight, the battle that will decide all the others. America is not a democracy, and Republicans want to keep it that way. America is not a democracy, and Democrats want to make it one, or at least more of one.

Republicans against democracy

“We’re not a democracy,” Sen. Mike Lee (R-UT) tweeted during the vice presidential debate. As the backlash mounted, Lee poured cement around his position. “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”

Rank democracy. There is no subtext in this election, only text; no dog whistles, only foghorns. Lee, a former Supreme Court clerk and one of the GOP’s brighter intellectual lights, is stating his party’s position simply: Democracy is the enemy, the specter stalking Republican power.

A party that wins power even as it fails to win over voters will quickly turn against democracy itself. And when that happens, it will use the power it has to make it yet easier to win power without winning voters. And so the Republican Party is. A full accounting of the GOP’s recent assays against democracy would require a book, but a few examples:

• In North Carolina in 2016 and Michigan and Wisconsin in 2018, Republican legislatures responded to electoral defeat by using lame-duck legislative sessions to entrench their own power and strip incoming Democratic governors and officeholders of key powers and privileges.
• Republicans at the state level have consistently pushed policies — from voter ID laws, to voter roll purges, to shutting down polling locations in low-income communities — that disproportionately disenfranchise low-income minorities and Democrats more broadly.
• The Supreme Court’s conservative bloc has handed down decision after decision undermining voting rights — including gutting the Voting Rights Act — while permitting money to flood politics. And it’s not just the Supreme Court that holds sway here. A recent study tracked 309 votes by judges in 175 election-related decisions and found that “Republican appointees interpreted the law in a way that impeded ballot access 80 percent of the time, versus 37 percent for Democratic ones.”
• The Trump administration tried to add a citizenship question to the census, with the explicit intention of scaring off Hispanic respondents so the population counts would give Republicans a bigger electoral advantage. The Supreme Court narrowly rejected their machinations, but only because they had been so obvious about the political aims motivating the change.
• A number of conservative pundits and Republican politicians — including Mike Lee — have called for repealing the 17th Amendment, which allows for the direct election of US senators. The alternative would be state legislatures choosing senators, which would maximize the GOP’s geographic advantages.
• In 2020, Republicans — including the Trump campaign — filed lawsuits to prevent states from making it easier for Americans to vote, and have their vote counted, amidst the Covid-19 pandemic. When groups like the NAACP Legal Defense and Educational Fund have tried to get judges to change or invalidate existing laws that make it difficult for Americans to vote and have their vote counted during the pandemic, Republicans — including the Trump campaign — have actively fought against them.

All of these efforts continue, with examples piling up even as I write these words. On Monday, the Supreme Court deadlocked 4-4 over a request by Pennsylvania’s Republicans to overturn a court ruling allowing election officials to count ballots received for up to three days after Election Day, due to restrictions and delays imposed by the coronavirus.

The 4-4 deadlock means the Pennsylvania court ruling will stand, and ballots will be that much likelier to be counted. But if Barrett had already made it to the Court, she might have joined the conservatives and provided the crucial fifth vote to grant a stay, leading more ballots to be trashed. And on Wednesday, the Court’s five conservatives joined together to block Alabama from allowing drive-up voting.

Nor is the turn against democracy just a Trumpist obsession, or just an Election Day question. More genteel conservatives, even those who loathe Trump, are casting their ideas in more boldly anti-democratic terms. In his book The Conservative Sensibility, George Will places James Madison’s “catechism of popular government” at the core of the conservative project. “What is the worst result of politics? Tyranny,” Will writes. “To what form of tyranny is democracy prey? Tyranny of the majority.”

To this tyranny — otherwise known as democracy — Will proposes that conservatives embrace a more profound form of judicial check, one that would render not just elections, but legislators, toothless. “Conservatives’ indiscriminate denunciations of ‘judicial activism’ serve progressivism,” he writes. “The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution actually is ‘basically about,’ which is compelling majority power to respect individuals’ rights.”

Will is clear as to the radicalism of intentions here. Lochner v. New York, the infamous — and later overturned — case in which the Supreme Court ruled it unconstitutional for New York to limit bakers’ workweek to 60 hours, and which set off a period in which the Court ruled vast swaths of social and economic policymaking unconstitutional, “richly repays reconsideration.” If a 6-3 conservative Court did as Will counsels, even winning elections wouldn’t lead to progressive governance, because the Supreme Court would wipe out progressive legislation.

Democrats for democracy

Over the past decade, the right has understood that democracy is its enemy with far more clarity than the left has realized that democracy is its answer. But that is, perhaps, changing. In 2018, after Democrats took back the House, the first bill they considered was the “For The People Act,” which knit together a smorgasbord of proposals securing voting rights, curbing government corruption, and empowering small donors. But that bill is a dead letter in the Senate, where anything that isn’t purely budgetary in nature will fall to the filibuster.

But in the aftermath of Mitch McConnell’s obstructionist innovations and Supreme Court hardball, Senate Democrats are beginning to consider ridding the institution of the filibuster, and taking democratization seriously. And they are being pushed in that direction by the most senior members of their own party.

Speaking at Rep. John Lewis’s memorial, former President Barack Obama exhorted Democrats, “If politicians want to honor John — and I’m so grateful for the legacy of work of all the Congressional leaders who are here — but there’s a better way than a statement calling him a hero. You want to honor John? Let’s honor him by revitalizing the law that he was willing to die for. And by the way, naming it the John Lewis Voting Rights Act, that is a fine tribute.”

Then Obama lowered the hammer: “And if all this takes eliminating the filibuster — another Jim Crow relic — in order to secure the God-given rights of every American, then that’s what we should do.”

Alex Edelman/AFP via Getty Images

Just as surprising has been Joe Biden’s refusal to take expansion of the Supreme Court off the table, a notable position given the enthusiasm with which Biden disavows progressive policies he does intend to reject. And it’s not just Biden. Sen. Chris Coons (R-DE), who holds Joe Biden’s former seat in the Senate, and is a leader among the Democrats’ more cautious, institutionalist, wing, has also signaled openness to Supreme Court reform.

The fight to define the next era in American politics

In his book The Great Democracy, Vanderbilt law professor and former top Elizabeth Warren adviser Ganesh Sitaraman writes:

Many centrists, liberals, and even some moderate conservatives worry about tactics like these, but they also worry about fighting hardball with hardball. They are concerned, for example, about proposals to reform the Supreme Court, change filibuster rules, or regulate money in politics. …

They fear that more hardball will simply unleash a never-ending tit-for-tat process—an era of permanent escalation in which politics spins out of control. Although we cannot rule that possibility out, this view assumes that neither side can win outright. But this assumption might be wrong. Shortly after Lincoln declared that a “house divided against itself cannot stand,” he added, “It will become all one thing or all the other.”

Sitaraman’s argument is that we are in a time of transition, an unstable space between potential equilibriums. If Democrats win the fight to make America a democracy, the Republican Party will have to transform itself into a party capable of winning majorities in a country that is becoming more diverse and more secular. That will force the GOP to become a different type of party, with a different animating coalition, and a more broadly appealing policy agenda, if it wants to avoid irrelevancy.

But if Democrats lose the next few elections, they may lose democracy itself to a conservative Supreme Court and an anti-democratic Republican Party. In that world, the Democratic Party will have to become a different party than it is, and a different party than its voters want it to be, as it tries desperately to win over the older, whiter, more religious places that retain disproportionate political power, and to satisfy the demands of a conservative Supreme Court that Republicans control.

That is the political system Republicans explicitly intend to build, and that they will use their power to create if they win in 2020. (I recently had Sitaraman on my podcast to discuss his arguments. You can listen to that interview here.)

Right now, in other words, both sides fear that if they lose, the other side will change the political system such that they cannot win again. This is, to some degree, hyperbole: Victories are never permanent, and losses are rarely irrecoverable. But it is not entirely alarmism, either. This is a fight to decide the rules of American politics going forward, and those rules will decide the kinds of parties, agendas, and political competition we have.

“In moments of extraordinary politics, in moments of transition between eras, the struggle is not to save the old regime, and political hardball is not a permanent status,” writes Sitaraman. “The struggle is to achieve a new equilibrium.”

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