Election Law in the American Political System
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ELECTION LAW IN THE AMERICAN POLITICAL SYSTEM Second Edition James A. Gardner Guy-Uriel Charles 2021 SUPPLEMENT (Last revised August 9, 2021) This Supplement is designed for use with the Second Edition of Gardner and Charles, Election Law in the American Political System (Aspen 2018). Please insert or replace the text below at the appropriate point in the casebook, as indicated. REPLACE: Chapter 1, in its entirety, with the following. Chapter 1 Democracy in the Present Context A. Introduction 1. A Note on This Supplement Unlike past Supplements, which have confined themselves to updating materials presented in the main text, this Supplement begins a transition of the text toward a major reorganization which will be completed in the forthcoming Third Edition. A significant rethinking of the field, we believe, is necessary following the 2020 presidential election, which marked a radical departure from any prior regime of American election law. In our view, there is election law before 2020, and election law after 2020, and a new edition is necessary to make sense of, and sensibly to present, the new regime. The new edition of Election Law in the American Political System is guided by three foundational premises. First, as the title of the book indicates, we believe that election law cannot be meaningfully studied as an isolated body of legal doctrine. On the contrary, because election law is the way by which societies operationalize their commitment to democratic, popular self-rule, it cannot be fully understood unless it is examined in the context of the political system in which it is embedded. This commitment has guided the book since its first edition, and is the reason why it contains what is, for a law book, an unusual amount of contextual material drawn from political and democratic theory, history, empirical political science, and sociology. The other two premises of the edition are new, and respond directly to the radically changed political context in which American election law now finds itself. Our second premise is that liberal democracy, the form of democracy that has guided the United States and most of the free world since the conclusion of the Second World War, is in decline around the globe, and that the United States has recently become an active participant in this trend. In its place, populist authoritarianism has proven itself a vigorous competitor for dominance at home and abroad. This development puts democracy itself – and thus the practice of meaningful elections, conducted under a firm commitment to the rule of law – in severe jeopardy. Our third premise is that this is a very bad development. Liberal democracy, to be sure, has its warts. Liberal democracies have done an unconscionably poor job of responding to urgent contemporary 2 problems such as growing economic inequality and climate change. In many liberal democracies, unintended connections between capitalism and democracy have over the last half-century transferred a great deal of political power from ordinary citizens to the economically well-off. These are problems that demand solutions, but we do not believe that abandoning liberal democracy altogether – especially in favor of authoritarianism – is a wise or promising approach. Liberal democracy, we believe, is at bottom a good form of government – perhaps the best that human ingenuity has ever devised, or at the very least, in Winston Churchill’s famous formulation, the least bad.1 And it is surely the only form of government that can be relied on to any significant degree to protect fundamental rights of political participation and basic human dignity. As a result, we do not in this edition follow the traditional practice of legal casebooks of formal neutrality in the evaluation of legal developments (as superficial as this neutrality sometimes actually is). The book, to be sure, is even-handed in that we aim to present the current trend of populist authoritarianism in its own best light, but it is not neutral. Our position is clear: illiberalism is a profoundly distasteful aspect of the American inheritance that must be overcome, not capitulated to; that the establishment of liberal democracy has long been, and remains, the right aspiration for the United States (and quite possibly for any modern polity); and that any steps taken in that direction, no matter how incomplete or imperfect, represent significant political and human achievements that demand the greatest possible respect. In taking this position, we follow the evidence wherever it leads. One place it leads is to the conclusion that Donald Trump, though not our first populist president (Andrew Jackson holds that position), was our first authoritarian president, placing him wholly outside more than two centuries of inherited political tradition – a kind of anti-George Washington. A second conclusion to which the evidence inexorably leads is that support for populist and authoritarian alternatives to liberal democracy is not randomly distributed in the American polity. Rather, it is concentrated in the Republican Party, and in states and government institutions controlled by Republicans. The Democratic Party, in contrast, still appears to adhere to longstanding, inherited principles of liberal democracy. As a result, the United States is no longer a nation characterized by competition for power among two major parties committed to liberal democracy; it is now a polity in which a liberal democratic party competes against an illiberal and authoritarian party. This is an entirely new development in the history of American politics. This Chapter sets the stage for our study of election law in the new – and previously unforeseen – context. It begins immediately below with a review of the condition of democracy around the world. It then focuses closely on the political inheritance of contemporary Americans, beginning with liberalism and democracy, and then examines some of the illiberal strands in American political thought. The Chapter moves next to consider the contemporary wave of populism, taking it seriously as a competing conception of democracy, albeit, we believe, an illiberal one. The Chapter concludes with an inquiry into a question that is critical to any meaningful study of election law in the contemporary context: Do the conditions upon which a successful liberal democracy depends presently exist in the United States? That is, does election law remain a meaningful field of law, with a legal structure and jurisprudence that can be taken seriously? Or has it become little more than a political football, to be manipulated cynically 1 Churchill is reputed to have remarked: “Democracy is the worst form of government – except for all the others,” or words to that effect. 3 by those to whom holding power in a superficially democratic regime is the only goal, and thus about which not much more can or need be said? 2. The Condition of Democracy: A Global Perspective For most of human history, democracy was exceedingly rare. When the Framers of the U.S. Constitution gathered in 1787, they had few examples to study for inspiration, and most of those were from the ancient world. Following the American and French revolutions, however, democracy began to attract a following around the world, and over the course of the nineteenth century possession of the franchise gradually became more common and widespread. This democratizing trend reversed during the 1930s, when illiberal and authoritarian forms of government enjoyed a robust efflorescence, but reversed again following the Second World War. The defeat of powerful fascist states by an alliance of liberal democracies badly discredited illiberal regimes, initiating a so-called “second wave” of democratic expansion. A third wave of new democracies appeared after 1989, following the collapse of the Soviet Union, when it seemed to much of the world as though liberal democracy had, after a vigorous struggle with communism, proved itself the more successful form of government. By the late 1990s, “most of the countries on Earth were democracies . and a third of all states were fairly liberal.” Larry Diamond, Ill Winds 53 (2019). Today, however, there has been a precipitous turn globally away from liberal democracy and toward authoritarian forms of governance. In Hungary, Poland, Turkey, Venezuela, Brazil, the Philippines, and many other places, young but seemingly stable democracies have turned to authoritarian leaders who have dismantled liberal institutions. Pro-democratic uprisings in the Arab world and Eastern Europe sputtered and resulted mainly in the further consolidation of illiberal autocracy. Even more troubling is the new phenomenon of “democratic backsliding,” in which longstanding, stable democracies such as the U.S., the U.K., and Italy, have suffered slow, incremental degradation of previously reliable democratic institutions. According to Freedom House, an organization that tracks liberty around the world, the last year in which the number of countries becoming more democratic exceeded the number becoming less democratic was 2005. In each year since 2015, the number of countries backsliding on democratic norms has been approximately double the number advancing on democratic metrics, and the number of “highly defective democracies” around the world doubled between 2006 and 2010. In 2016, The Economist’s Democracy Index downgraded the United States to a “flawed democracy.” Thirty-five percent of the world’s population now lives in “autocratizing nations.” Seraphine F. Maerz,