Slowly Suffocating Democracy
There is nothing new about political candidates and political parties taking steps (even despicable ones) to enhance their chances of winning elections. History books are filled with stories of candidates lying about their political agendas, spreading false rumors about their opponents, giving their opponents’ supporters erroneous information about voting, casting votes in the name of dead persons, engineering the candidacy of third-party candidates to split the votes that would otherwise be cast for their opponents, and the list goes on and on. President Nixon even formalized these practices by recruiting political operatives like Chuck Colson and Gordon Liddy to conduct a program of “dirty tricks” and engaging a team (referred to as the “Plumbers”) to burglarize the offices of the Democratic National Committee. Accordingly, no one paid much attention to Donald Trump’s assertions in the spring of 2020 that the only way he could lose the pending election would be for the Democrats to perpetrate widespread voter fraud.
In many respects, however, election security in the U.S. has been greatly improved over the past 50 years partly as a result of voting rights legislation passed in the 1960s and improvements in voting technology since the “hanging chad” debacle in Florida during the 2000 election. Notwithstanding these improvements, a number of structural impediments to full and fair elections have survived. For example, legislative districts on both the state and federal levels continue to be skewed through gerrymandering, a practice that dates back to the early 1800s (see, “A New Surge of an Old Pathogen”). Voting has been made more difficult by imposing heightened voter ID and registration requirements and by periodic purges of voter registration rolls. Still, by all accounts the 2020 elections were among the fullest and fairest elections to have ever been held in this country, attracting 154.6 million voters, an increase of nearly 17 million voters over the 2016 elections and this was achieved notwithstanding an on-going pandemic which made the very act of casting a ballot a threat to each voter’s health.
For the most part efforts to skew election results have generally been undertaken in a good-faith belief that the nation’s economic and social well-being would be enhanced by the implementation of one’s political agenda. Indeed, democracy is based on the very notion that elections are intended to be a referendum on which party’s or politician’s political agenda would provide the greatest benefit for the electorate. This concept began to be placed in jeopardy in the mid-1960s following Lyndon Johnson’s landslide victory over Barry Goldwater in the 1964 presidential election. As more fully recounted in “Partisan Politics” a small group of Republican strategists laid out a plan for their party to gain and retain control of the federal and state governments. Adherents to that plan are sometimes referred to as “The New Right” or “Movement Conservatives.” Their goal was to be achieved, not by adopting a political agenda that would most benefit the nation, but rather by effecting structural changes to the nation’s electoral systems.
The plan contained a number of component parts which would be put into place over the next 30 years. It’s core element was based on two important observations. The first was that the Republican Party’s principal advantage over the Democrats was that its political base, while smaller in number, was far wealthier than that of the Democrats whose policies primarily appealed to a broad spectrum of working class voters. The second was that national media outlets had become critical to political success. This was made evident when John Kennedy was able to defeat Richard Nixon in the 1960 election by outshining Nixon in the televised national debates. At the heart of their strategy was a symbiotic relationship between their party’s elected representatives and its wealthy donors. Republican politicians would promote policies designed to economically reward their wealthy donors, such as reducing personal and corporate income taxes and eliminating business regulations that imposed higher operating costs on the nation’s businesses. In return, those donor would contribute to Republican political campaigns, the costs of which were rising exponentially due to the growing need to dominate the political debate through the public media.
An important part of this strategy was to have their donors purchase media outlets and use them to support Republican candidates. The party, in turn, would devise messages to make their economic policies which were skewed in favor of wealthy individuals more palatable to middle and working class voters. These messages would tout the importance of helping businesses to reduce their costs which would enable them to expand the number of available jobs. As more fully explained in “The Myth of Republican Economic Managerial Superiority,” this contention continues to be well-received by the American voters even though it has been disproven at least four times. It’s what Paul Krugman characterizes as an “Economic Zombie”—a disproven concept that keeps coming back from the dead. Another favorite morsel of Republican propaganda is that governments should be kept small because governments are plagued by corruption and inefficiencies. While there is some truth in this message, there are many situations which require government action. The recent Covid-19 pandemic offers a prime example. Without the economic incentives provided by the federal government, it might have taken as much as four years to develop the vaccines that have tamed the pandemic.
The first real victory that can be ascribed to the strategy embraced by Movement Conservatives was the election of Ronald Reagan in 1980. In the lead-up to that election, the nation had been plagued by high interest rates and slow economic growth (characterized by economists as “stagflation”). Reagan ran on a platform of curbing inflation (over which presidents have little or no control) and cutting taxes. He proclaimed that his policies would boost economic growth while not increasing the national debt which Republicans had been railing against during the presidencies of Kennedy, Johnson and Carter. Reagan also benefitted from his personal popularity and from the demonization of President Carter by the growing influence of right-wing media.
During the Reagan years inflation was tamed by the Federal Reserve’s dramatic increases in interest rates (which reached as high as 22 percent) and there was increased economic growth. Unfortunately, Reagan’s highly-promoted tax cuts turned out to be “Voodoo Economics” just as George H.W. Bush, Reagan’s primary opponent, had characterized them. The result was that the national debt began to increase rapidly compelling a tax increase during Reagan’s second term. This was the first sign that the strategy embraced by Movement Conservatives was designed to enhance the prospects of the Republican Party and its wealthy donors rather than the interests of the nation as a whole.
Another facet of the Movement Conservatives’ strategy was to cease treating political opponents as “gentlemen of the opposition.” Instead, political opponents were to be attacked as “enemies of the state.” With the help of Lee Atwater’s “Willie Horton” ad smear and the advent of Rush Limbaugh’s talk radio show, George H.W. Bush was able to squeak out a victory over Michael Dukakis, the Democratic presidential candidate, in the 1988 election. The tactic of demonizing one’s political enemies would take on added frequency and importance after Newt Gingrich became Speaker of the House in 1995. It would become a full-time endeavor and not be confined to periods leading up to political elections. Nor would political attacks be limited to acts of corruption and dishonesty; almost anything real or imagined became fair game for a political attack. Also, such attacks would not be confined to a political opponent, but rather might also be targeted at any individual anticipated to be a future political opponent. This practice reached a peak following the 2012 election when Republicans began attacking Hillary Clinton anticipating that she would run for president in 2016.
Republicans held the White House from 1981 through 1992. During those twelve years they were able to begin establishing another foundational element of their strategic plan; namely, taking control of the nation’s judicial system. It should be noted that control of the judiciary is a common feature of all authoritarian governments, and creating one-party political dominance was the stated ultimate goal of the Movement Conservatives.
Because of the hierarchical nature of the federal judicial system, control of the federal judiciary could only be achieved by gaining control of the U.S. Supreme Court. Two principal obstacles lay in their way to achieving that objective. First was the fact that new justices could only be appointed when a sitting justice died or retired. This meant that it was unlikely that a president serving two consecutive terms could appoint more than two Supreme Court justices. The other problem was the Senate’s filibuster rule which required at least 60 votes to confirm a judicial nomination. That procedural rule made it virtually impossible to secure the confirmation of a nominee who was highly partisan. This had become obvious in 1987 when the Senate refused to confirm the nomination of Robert Bork who had demonstrated his partisan nature during the “Saturday Night Massacre” when he stepped in to carry out Nixon’s demand that that Archibald Cox, the Watergate Chief Prosecutor, be fired.
It would take another 30 years for Republicans to achieve their goal of taking effective control of the federal judicial system. A key tactical victory in that campaign, however, was achieved in 1991 when the Senate’s confirmed George H.W. Bush’s nomination of Clarence Thomas to replace Thurgood Marshall on the Court. At the time, the conventional belief among Democrats was that a president’s choice to serve on the Court should be confirmed in the absence of a compelling reason not to. Although questions were raised about Thomas’ past behavior while serving as the Chair of the EEOC, Senate Republicans demanded and achieved Thomas’ confirmation notwithstanding the fact that the Senate was then controlled by the Democrats. Thomas’ vote would later prove critical in deciding Bush v. Gore, the controversial ruling that swung the 2000 presidential election to George W. Bush. Bush went on to appoint two relatively young justices to the Court: John Roberts and Samuel Alito. Both of these individuals were products of the Federalist Society which had been established in 1982 for the purpose of recruiting lawyers to serve as federal judges and indoctrinating them to support the political agenda of the Republican Party. They would do so under the guise of following conservative judicial principles in applying an “Originalist” interpretations of the U.S. Constitution.
Conservative Judicial principles (more fully explained in “Saving SCOTUS’s Credibility and the Rule of Law”) describes a collection of procedural guidelines used by the courts to address legal issues. These guidelines tend to make changes in the law gradual by requiring legal issues to be thoroughly debated in the lower courts before being decided by the U.S. Supreme Court. The doctrine of stare decisis, often mentioned in the questioning of Supreme Court nominees, is a facet of judicial conservatism and requires the Supreme Court (as well as lower courts) to adhere to Court’s prior rulings except when the earlier ruling is determined to be clearly erroneous. This, in large measure, explains why Supreme Court rulings are rarely reversed.
Originalism is a school of Constitutional interpretation which calls for legal interpretations be made in conformance with the views of the individuals who drafted the Constitution, ignoring the changes in conditions, issues, technology and public opinion that may have taken place since the Constitution was adopted in 1886. Originalism, however, does not date back to our nation’s founding, but rather was first articulated almost 200 years later in 1971 by Robert Bork (yes, the same Robert Bork whose nomination to serve on the Supreme Court was rejected). In essence, it is a perversion of traditional judicial interpretation which calls for judges to interpret legal documents (including agreements, regulations and laws as well as the Constitution) in accordance with the intentions of the drafters. In short, it is a manufactured rationale for turning back the clock 200+ years and ignoring what currently might be in the best interest of the nation. Today, it is the interpretative standard embraced by six of the Supreme Court’s justices. . . . But I digress.
With the appointments of Justices Roberts and Alito to the Court, the real damage to democracy in America began. Although the Court with a majority of judges appointed by Republican presidents made a number of decisions curbing the power of the Federal government to regulate commercial activity and expand religious rights, the principal damage inflicted by the Court has been a series of decisions impacting the electoral processes. The first of those decisions was Citizens United v. Federal Election Commission (2010) in which the Court declared unconstitutional a number of the legislative prohibitions relating to campaign financing. This opened to the door to virtually unlimited campaign contributions by corporations and wealthy individuals and supercharged the symbiotic relationship forming the core of the Movement Conservatives strategic plan.
The Court’s decision in Shelby County v. Holder (2013) held that Section 5 of the Voting Rights Act of 1965 was unconstitutional. That provision required states with a history of voting discrimination (principally former members of the Confederacy) to pre-clear with the Department of Justice all changes to their election laws. Although the Court stated that this provision (which had been renewed in 2006) was outdated, within a matter of weeks new restrictions on voting were enacted in more than a dozen states. Not only were such laws enacted in former Confederate states but also in a handful of states outside the south, all controlled by Republicans.
Republican domination of the federal court system was cemented following the Obama presidency. Throughout Obama’s first term in office Senate Republicans, led by Mitch McConnell, mounted a concerted campaign to block Obama’s judicial appointments. By the beginning of 2013 more than 150 such appointment had been blocked. In frustration, SenateDemocrats countered by excluding the appointments of district and circuit court judges from the filibuster rule’s 60-vote requirement that had been in effect since the 1970s. This enabled Obama to fill more than 100 vacancies in the federal court system during the remainder of his second term. Even so, a large number of judicial posts were left vacant when Obama left office at the end of 2016. When Donald Trump became President he rushed to fill those vacancies with individual recommended by the Federalist Society, and McConnell, who had become the Senate’s Majority Leader in 2014, set all Senate business aside to confirm their appointments.
In addition to impeding Obama’s judicial appointments, McConnell refused to even allow the Senate to consider Obama’s nomination of Merrick Garland, a well-respected judge on the D.C. Circuit, to replace Antonin Scalia on the Supreme Court when Scalia died unexpectedly in February 2016. That enabled Trump to fill that vacancy on the Court which he did with Neil Gorsuch. To make that happen, McConnell pushed through another change to the Senate’s filibuster rule allowing the nomination of Supreme Court Justices to be confirmed by a simple majority vote. Over the course of his four years as President, Trump appointed more than 230 federal court judges (the most by any one-term president), including three justices of the U.S. Supreme Court. This set the stage for a series of Supreme Court decisions further altering the nation’s election laws.
In 2019 the Court’s decision in Rucho v. Common Cause held that notwithstanding the equal protection clause of the 1st Amendment the federal courts had no power to police partisan gerrymandering (i.e., gerrymandering unrelated to unlawful discrimination). This freed states to greatly expand their efforts to gerrymander election districts so as to permit the state’s controlling party to maximize its representation in the U.S. Congress as well as the state’s legislature. See “A New Surge of an Old Pathogen” for a discussion of how gerrymandering has evolved with the aid of computer technology. This essentially allowed Republican controlled states to disenfranchise a majority of Democratic voters in their states. While this change also enabled the Democrats to do likewise, it was far more beneficial to Republicans who controlled more state governments. It also favored Republicans because Democratic voters tend to be concentrated in major metropolitan areas, making them more susceptible to being adversely affected by gerrymandering.
The Voting Rights Act in 1965 still precluded election district gerrymandering that adversely impacted the voting power of racial minorities. That position had been re-enunciated in the Court’s 2017 decision in Cooper v. Harris. Nevertheless, in 2018 the Court largely negated that protection in its decision in Abbott v. Perez in which it held that courts should not assume that lawmakers act in bad faith; or stated another way, there should be a presumption of “white innocence.” Therefore, plaintiffs seeking to overturn racial gerrymandering had to prove that gerrymandered election districts not only had the result of discriminating against minorities, they had to be the result of the legislature’s intention to do so. In short, as long as state legislators were careful not to state their intent to discriminate against minority voters, the Constitution’s “equal protection” clause and the Voting Rights Act could successfully be circumvented. This series of decisions set the stage for Republicans to further entrench their control of the governments in the states they controlled and indirectly to gain control of the federal government.
Even before the Electoral College had confirmed Biden’s election, the states controlled by Republicans began to adopt new laws designed to curb voting primarily by minorities. These laws had been crafted by the American Legislative Exchange Council (or ALEC) on the pretext of preventing non-existent widespread election fraud that President Trump and his acolytes had been decrying. By the spring of 2021 more than 400 proposals to curb minority voting had been introduced in more than 40 states. Congressional Democrats sought to counter these efforts to skew election results both by initiating judicial attacks on those laws that had been adopted and by enacting federal legislation outlawing the voting restrictions embodied in them. While the former efforts enjoyed some modest successes, the Democrats were blocked by the Senate’s filibuster rule (owing to the opposition by Senators Manchin and Sinema to changing that rule) from adopting remedial federal legislation. As a result, in virtually every state controlled by Republicans there is now in effect a panoply of voting restrictions designed to limit voting by minorities who largely support Democratic candidates.
Many of the newly adopted changes to state voting laws were born out of Donald Trump’s efforts to reverse his defeat in the 2020 election. Trump had hired a number of attorneys and political strategists to come up with ways to overturn the 2020 election. They carefully explored the nation’s election laws and identified several weaknesses in them that could conceivably facilitate overturning Biden’s election. Most of approaches they identified required the cooperation of state election officials charged with supervising and certifying election processes and results. To their credit, most state election officials (many of whom were Republicans) refused to go along with the efforts that Trump’s team was urging upon them.
While Trump’s team was unsuccessful in changing the results of the presidential election their efforts did reveal a number of ways that state election laws could be amended to assure that state election officials would be in a position to reject the popular votes and appoint Republican presidential electors in future elections. Those changes included (a) limiting the authority of state election officials, (b) intimidating election officials by making them criminally liable for not preventing any of a variety of minor voting irregularities, (c) authorizing state official to freely remove local election officials (especially those in major metropolitan areas which then to vote Democratic) and (d) empowering the state legislature to proclaim the winners of the elections if they found the outcome of the election not to their liking. As a result of these provisions, election officials in “red states” have been resigning in large numbers. Concomitantly, Republicans have been devoting much time and resources to the election of individuals to serve as Secretaries of State and other state officials entrusted with supervising elections.
Having found themselves unable to enact federal legislation that would assure full and fair elections, the Democrats have turned to attacking the newly enacted state voting laws in the courts alleging that the new laws violate the state’s constitution. This tactic, however, has only produced modest results. In 2022 the newly drawn, highly gerrymandered electoral maps in the States of Ohio, Georgia, Louisiana and Alabama were found by federal district courts to be in violation of their own state’s constitution. Nevertheless, they will still be used in this year’s elections because the Supreme Court stepped in to rule that it was too close to the date of the upcoming election to require the creation of new redistricting plans.
Republicans are now going one step further. They are seeking to block attacks on gerrymandered election districts based on state laws and constitutions by appealing to the U.S. Supreme Court. In the case of Moore v. Harper, they are contending that the U.S. Constitution expressly places the power to set the rules for federal elections in the hands of state legislatures in the absence of contrary guidance enacted by the U.S. Congress. While this may sound like a far-out contention, the current Supreme Court (notwithstanding Chief Justice Roberts’ protestations to the contrary), has already demonstrated that it has little hesitancy in standing in the way of the Republican Party’s efforts to secure permanent control of the U.S. government. The Court will be taking up this case when it begins its new term in October and there is every reason to believe that it will find state constitutional provisions ineffective in preventing state legislatures from having unfettered power to establish the rules for federal elections.
At this point, Democrats seem to be reduced to a single path to prevent this from happening. That requires achieving an unexpected array of victories in the 2022 elections. Specifically, the Democrats will have to retain control of the House and pick up at least two additional seats in the Senate. If they can do this, they will have a chance to amend the filibuster rule and go on to adopt federal voter rights legislation rolling back the measures that Republican controlled state legislature have recently enacted. This must be characterized as an extremely long-shot as the 2020 census (which the Trump administration cut short) provided Republican controlled states with an opportunity to further gerrymander their election districts, virtually assuring them of winning an additional ten seats in the U. S. House of Representatives. While the Democrats have a surprisingly good record to run on, that is not likely to be enough to change what seems to be the inevitable outcome of the 2022 election. This would mean that the nation’s electoral system will remain “rigged” (to use Trump’s term) in favor of Republicans for the 2024 and all subsequent elections.