Our Elections are Taking a Dangerous Turn

In its never-ending effort to retain its grasp on power despite an unpopular agenda and increasing demographic irrelevance,  the Republican Party at every level did its best to suppress participation in this month’s elections in Wisconsin, fighting every effort to delay the vote as a number of states have done, to a safer time, or by expansion of mail balloting, since going to the polls in a raging pandemic forces voters to put their health and safety at stake to exercise a fundamental democratic right.

And yet, despite all the obstacles, Wisconsin voters did show up, and turned out a conservative Supreme Court justice that Donald Trump and the state Republican party were desperate to protect. Yet even now, there are at least 100,000 Wisconsin ballots that should have been counted, several times Trump’s winning margin in the state in 2016.  At times, voters who are angry at what they plainly see is an effort to rig the vote will be powerfully motivated to fight back, even at personal risk.  That is what seems to have happened in the Wisconsin election, thanks to a great deal of vigorous organizing. But voters should not have to put their lives on the line.  And our satisfaction at the way ordinary citizens thwarted a scheme to take away their vote should not distract us for a minute from a growing crisis over the legitimacy of American elections.

Wisconsin, while in many ways the epicenter of the conservative campaign to grab power by riding roughshod over democratic norms, is just one front in the fight. In New Mexico earlier this month, for example, a group called True the Vote, led by James Bopp, a notorious right-wing activist and ally of Trump’s, sued the state to block adoption of universal vote by mail.

I worked for many years in the international human rights movement, and the freeness and fairness of elections is a sadly familiar topic in that realm.  Most power-hungry governments around the world observe the rituals and forms of elections,  but put in place obstacles to participation, particularly for members of minority or dissident groups.  That’s why we have a system of international election monitors – former President Jimmy Carter has often served as one – to look beyond the form and into the substance, and why the U.S. has at times refused to accept reported election results in other nations as free and fair.

We are heading into that territory again here in the U.S.  I write “again,” because it’s important to acknowledge one obvious point up front:  for much of American history, our own elections have failed the basic test of legitimacy, since from the outset into the 1960s, vast swaths of the citizenry – non-property owners, Blacks and women – were barred from voting, and even after Blacks secured the right to vote, violence, intimidation and chicanery kept them from exercising it.  No meaningful system of electoral oversight would have certified most 19^th and 20^th century U.S. elections as fair.

But the courage of those who fought and bled for the right to vote, like John Lewis on the bridge at Selma, changed that picture, with the passage of the 1965 Voting Rights Act and other measures. The composition of Congress and many state legislatures began to change.  Cities began electing Black and Latino Mayors. In time, a Black President moved into a White House built by former slaves.

From practically the moment voting rights were expanded, the contemporary Republican Party – now unrecognizable as the party of Lincoln and Theodore Roosevelt – began a campaign to chip away at them.  Central to this strategy was control of the courts, which beginning in the mid-1950s were increasingly looked to as a guarantor of basic rights.  Richard Nixon and Ronald Reagan began to reshape the Supreme Court and the lower federal bench, but some of their appointees, like Harry Blackmun, Sandra Day O’Connor and Anthony Kennedy, occasionally asserted their independence and disappointed their patrons.

By the time of George W. Bush’s Presidency, the right was determined not to take any chances, and his two appointments, Samuel Alito and John Roberts, have rarely stepped out of line.  This is even more the case with Trump’s Justices, Neil Gorsuch and Brett Kavanaugh, whose selections Trump effectively delegated to the conservative Federalist Society.   With Clarence Thomas, they form a rock-solid conservative majority that will be a ready rubber-stamp for whatever Republican Presidents, Governors and legislatures want – from repeal of democratic protections to shredding the social safety net.

My roots are in the movements for civil rights and liberties, and having grown up in the Warren Court era — what now turns out to have been a rare period in American history – I am used to viewing the courts as a backstop for constitutional rights, from school desegregation to marriage equality. It’s not easy to see the courts, which have been steadily and deliberately rigged by the right, serve instead as seals of approval for illegitimate power grabs.

No power matters as much to Republicans in Washington or the states as the power to name and confirm judges.  Even for Republicans who find much about Trump distasteful, his impact on shaping the courts is often cited as a saving grace. Why?  Because as their popularity erodes, they have to rely on countermajoritarian measures to hang on to power.  And when progressives regain power in Washington, and begin steps to rebuild economic fairness, human rights protections and democracy, a carefully-stocked activist right-wing Supreme Court, made possible by Mitch McConnell’s theft of a Supreme Court appointment from Barack Obama, will steadily block or undo any gains, as the courts did nearly 100 years ago in the so-called Lochner Era that frustrated early New Deal reforms.

What are we to think about laws enacted by legislative majorities elected from districts drawn to inflate partisan representation, which was the case in Wisconsin, where Democrats won a majority of the statewide vote in 2018 but Republicans control two-thirds of legislative seats? About winners in elections where polling places in minority precincts are systematically closed or located far away, where registration requirements are made more onerous, where despite the near-complete absence of voter fraud, ID cards must be produced in order to vote?  What are we to think about forcing citizens to the polls in the middle of a pandemic, when safer voting options could easily be expanded? About presidents who lose the popular vote?

What are we to do when the remedy of the vote does not work because elections are held under such conditions, and the remedy of the courts does not work because the flawed elections that put a minority party in power resulted in courts engineered to uphold any abuse of that power?

We’re not completely there yet, and as Wisconsin shows, outrage at the blatancy of right-wing power grabs can be a powerful motivating force for voters. But it will not always be enough.   We have half-a-year to the November election and need to work on many fronts, of which national expansion of voting by mail, early voting, and online voter registration and adequate funding for these options with civil rights protections is the most critical and urgent. Beyond that, repair of the essential structures of democracy, from systems of voting, to Congressional rules to the composition of the courts, is an essential task for organizations and movements across the issue and ideological spectrum.

For if we don’t make the repair of our democracy the central aim for progressives and everyone else concerned about the erosion of civic norms, before long we won’t have a democracy at all.