A veneer of legality and constitutionality

Jul 9th, 2021 | By
Category: Notes and Comment Blog

Steven Levitsky and Daniel Ziblatt of How Democracies Die tell us the biggest threat is not another insurrection but a steal.

The looming danger is not that the mob will return; it’s that mainstream Republicans will “legally” overturn an election.

They’re energetically at work on it now, like for instance all that voter suppression in Texas we were just reading about.

Last year, for the first time in U.S. history, a sitting president refused to accept defeat and attempted to overturn election results. Rather than oppose this attempted coup, leading Republicans either cooperated with it or enabled it by refusing to publicly acknowledge Trump’s defeat. In the run-up to January 6, most top GOP officials refused to denounce extremist groups that were spreading conspiracy theories, calling for armed insurrection and assassinations, and ultimately implicated in the Capitol assault. Few Republicans broke with Trump after his incitement of the insurrection, and those who did were censured by their state parties.

This is very very very bad. The Republicans are one of the two “respectable” parties, the majority parties, the as if official parties. They’re half of what they’re is – and they’re doing their best to become the only party.

From November 2020 to January 2021, then, a significant portion of the Republican Party refused to unambiguously accept electoral defeat, eschew violence, or break with extremist groups—the three principles that define prodemocracy parties. Because of that behavior, as well as its behavior over the past six months, we are convinced that the Republican Party leadership is willing to overturn an election. Moreover, we are concerned that it will be able to do so—legally.

You know…between global warming and the pandemic and far-right parties grabbing power in country after country, things are not going swimmingly for the human project right now. I kind of think we’ve messed up.

Democracy’s primary assailants today are not generals or armed revolutionaries, but rather politicians—Hugo Chávez, Vladimir Putin, Viktor Orbán, Recep Tayyip Erdoğan—who eviscerate democracy’s substance behind a carefully crafted veneer of legality and constitutionality.

…Election officials can legally throw out large numbers of ballots on the basis of the most minor technicalities (e.g., the oval on the ballot is not entirely penciled in, or the mail-in ballot form contains a typo or spelling mistake). Large-scale ballot disqualification accords with the letter of the law, but it is inherently antidemocratic, for it denies suffrage to many voters. Crucially, if hardball criteria are applied unevenly, such that many ballots are disqualified in one party’s stronghold but not in other areas, they can turn an election.

Do we think they will if they can? In a heartbeat, and institutions will help them.

Competition’s effects are being undermined in the U.S. today by what political scientists call countermajoritarian institutions. We believe that the U.S. Constitution, in its current form, is enabling the radicalization of the Republican Party and exacerbating America’s democratic crisis. The Constitution’s key countermajoritarian features, such as the Electoral College and the U.S. Senate, have long been biased toward sparsely populated territories. But given that Democrats are increasingly the party of densely populated areas and Republicans dominate less populated areas, this long-standing rural bias now allows the Republican Party to win the presidency, control Congress, and pack the Supreme Court without winning electoral majorities.

They go on to say we should reform all that, which is true, but what are the odds. So that’s cheery.

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