Democracy Eroding

It seems almost farcically naive that many believed the attempted coup on January 6th would prove to be a moment of reckoning for the Republican party. In the immediate aftermath, Politico described it as “the day that broke the Republican Party as we know it and began the GOP’s ultimate reckoning with Trumpism”. David Post, in Reason, declared, “I do think the rioters may actually have-inadvertently, to be sure-performed a great service for the country. I am among those who believe that the country needs something it has not had for some time: A functioning, principled, conservative Republican Party. The events of January 6 have exposed for all to see the anti-democratic and dictatorial heart of Trumpism, and helped to push push it off to the fringe of the political landscape where it belongs”. In fact, as it turns out, the attempted coup on January 6th proved the exact opposite. Instead, it was just another launching point for a further assault on the fundamentals of both our Constitution and our democracy by an already deeply anti-democratic Republican party.

The coup attempt may have failed at keeping Trump as President, but it solidified his position as the strongman of the Republican party. Some Republican members of the House openly admitted to their colleagues that they feared for their own and their family’s lives if they voted to certify Biden’s election or voted to impeach Trump. It took only days for Mitch McConnell to move from calling Trump “morally responsible” for the coup to saying he would endorse him if he were the nominee in 2024; for Kevin McCarthy to move from declaring Trump bore responsibility for the coup violence to going on bended knee to Mar-a-Lago to kiss the ring of the man who organized it; for the Big Lie that the election was stolen, which, let’s face it, virtually every Republican officeholder knows is an outright lie even if their base does not, to become GOP orthodoxy.

The Big Lie required Republicans to show their fealty to Trump by advocating massive and widespread voting rights restrictions on those who “stole” the election, namely the legally eligible Black and brown voters whom the GOP base believes never should have been allowed to vote in the first place. An Arizona Republican made that point explicit when he declared “everybody shouldn’t be voting…Quantity is important, but we have to look at the quality of votes, as well”. These GOP voting rights measures include restrictions on election day voting hours, absentee voting, early voting, and even voter registration, as well as new voter ID requirements and voter purges. As Nick Corasaniti writes in the NY Times, these restrictions “are a prime example of a Republican-led effort to roll back voting access in Democrat-rich cities and populous regions like Atlanta and Arizona’s Maricopa County, while having far less of an impact on voting in rural areas that tend to lean Republican…In Texas, Republicans have taken the rare tack of outlining restrictions that would apply only to counties with population of more than one million, targeting the booming and increasingly diverse metropolitan areas of Houston, Austin, San Antonio and Dallas”.

But Republicans are moving well beyond these traditional Jim Crow tactics in their attacks on our democracy. New GOP voting rules expand the ability to lodge mass voter challenges and create the legal framework to do what the coup could not, namely change the actual results of an election. In the 2021 special election in Georgia, Republicans challenged the eligibility of over 350,000 Georgians. That represented the largest challenge to voters since the Voting Rights Act (VRA) passed in 1965. Many of those challenges were summarily dismissed by local election boards. But under Georgia’s new voting laws, the number of challenges is likely to vastly increase beyond those record numbers and local boards will now have to consider each and every one of those challenges. As Marc Elias notes, “mass challenges are now expressly provided for in Georgia state law…Now, counties are required to hold a hearing on each challenge, regardless of how frivolous the challenge. This means that voters whose eligibility to vote is challenged will receive a formal notice requiring them to attend or participate in a hearing (on as little as three-days’ notice)…[I]f a county board fails to comply with this new mass challenge hearing process, the board itself is subject to sanctions by the state board. In other words, while the person who files a frivolous mass challenge faces no sanction, the board responding to challenges faces the risk of sanctions….Rather than curtail frivolous, racially-targeted mass challenges to voter qualifications, Georgia has empowered them…Even worse, failure to appear at a hearing will be spun by the right wing as a tacit concession that the voter was ineligible to vote — and may have committed voter registration fraud.” The proposed new law in Texas takes voter challenges even further, allowing partisan poll watchers, who have historically been used to intimidate minority voters, free rein inside the actual polling location. In addition, those poll watchers will be allowed to film voters inside the location, a further act of intimidation.

In addition to trying to craft a favorable electorate through voter suppression, Republicans are also attempting to gain partisan control over who actually counts the votes. In Georgia, the new law contains a provision that will allow the state legislature to basically dictate who controls the traditionally bipartisan or non-partisan state and local election boards. The legislature will now appoint the majority of members on the state’s election board and that newly constructed board will have the power to remove an entire local election board and replace it with a single person chosen by the state board. In Iowa, a proposed law would make it a crime for a local election board to enact any emergency election rules, which presumably include even changing voting hours or locations during a weather emergency. In a number of states, Republican election board members who certified Biden’s election have been censured or even removed from those boards by the Republican party. As Rick Hasen writes, “The message that these actions send to politicians is that if you want a future in state Republican politics, you had better be willing to manipulate election results or lie about election fraud…At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms”. Of course, the idea that state legislatures could also intervene and overrule the results of the election still looms out there, despite Trump’s inability to get that to happen in 2020. Indeed, Republicans seem intent on building a framework for the future to do something they were unable to do in the last election cycle, namely overturn the results of a free and fair election.

The GOP attack on our democracy is expanding beyond elections and voting rights and is now focused on the core of our Constitution, specifically the right to free speech and assembly. As Ruth Ben-Ghiat notes, “Democratic erosion and the criminalizing dissent go hand in hand”. Republicans have introduced over 100 bills across over 30 states attacking those core rights. A new Florida law would make it a felony to simply be part of a protest that turned violent, even if the protestor never participated in that violence. It makes it a felony punishable by up to 15 years in jail to desecrate Confederate flags and monuments. It makes it a felony for peaceful protests to block highways and denies bail to anyone arrested doing so. Incredibly, it strips local control over police budgets, allowing a mere prosecutor or city or county commissioner to appeal any reduction in a police budget to the state. A similar proposal in Iowa goes even further, stripping any locality of state funding if they defund the police.

In Minnesota, Republicans introduced a bill to deny student loans, food stamps, rent assistance or unemployment benefits to anyone simply convicted of any “illegal conduct” during a protest. A similar proposal in Indiana would bar anyone convicted of unlawful assembly from holding public office. Arkansas and Kansas are restricting the rights of protesters at oil pipelines. An attempt in Kentucky to make it a crime to direct “offensive or derisive” words or gestures toward a police officer thankfully failed but Republicans plan to try to pass it again in the next legislative session. Perhaps the most disturbing aspect of many of these laws is the inclusion of language that limits the liability of drivers who injure protestors. Florida, Iowa, and Oklahoma have already passed such measures and there are similar proposals in a few other GOP-dominated states. One researcher found 72 instances of cars running into protestors in just one month in 2020. Of course, Heather Heyer was killed by a driver while protesting against the white nationalist rally in Charlottesville, Virginia in 2017. At least the driver was convicted of murder in that instance, but these new laws would presumably make such a conviction a rarity.

Incredibly, Republicans are even attacking corporations who are providing limited objections to these new restrictions on voting rights. So far, those attacks have been just verbal rather than legislative. After spending his entire career touting the supposed free speech rights of corporations, Mitch McConnell laughably declared that corporations should “stay out of politics”. He later clarified that that didn’t include the donations that largely fund the Republican party. But legislators in Georgia have discussed repealing Delta’s jet fuel tax break because of the company’s criticism of the state’s new voting laws. In Texas, there is a proposal to impose financial penalties against companies that merely threaten “any adverse action against this state” who protest changes to Texas voting laws. Republican Senators Mike Lee, Josh Hawley, and Ted Cruz have proposed a bill to revoke Major League Baseball’s antitrust exemption because the MLB moved the All Star game out of Georgia to protest that state’s new restrictive voting laws. None of these are likely to go anywhere, simply because the GOP knows how its bread gets buttered, but these threats are certainly designed to further minimize dissent.

Partly because of the pandemic, the 2020 election was one of the most litigated elections in history and Republicans are working to ensure the courts will be far more favorable to them in the future than they were in 2020. With a McConnell-packed Supreme Court that is even more conservative than the one that decimated the Voting Rights Act and appears willing to largely ignore the Reconstruction Amendments in favor of their own view of “originalism”, it seems unlikely that the Court will block many of these new voting restrictions. Meanwhile, the Republican packing of state Supreme Courts continues apace, ensuring that Republicans can defy the will of the people either through the legislature or through the courts. Montana is in the process of changing how its Supreme Court is chosen. Rather than non-partisan statewide elections, members of the Court will now be chosen by district and those districts will be determined by the now GOP-controlled legislature. This change will virtually guarantee Republican control of the Court.

Republicans had already packed the Arizona Supreme Court in 2016 and Georgia did the same in 2017. Florida probably provides the two clearest examples of how GOP-dominated courts are used to overrule the expressed will of the people. In 2018, nearly two thirds of Florida voters passed a constitutional amendment to allow felons to vote. The GOP legislature sought to undermine the referendum by requiring all fees, fines, and restitution must be paid before the felon would become eligible. In many cases, however, the state was unable to even tell the felons how much they still owed, making it impossible to restore their rights as well as putting them at risk at committing a further felony if they did try and vote. A lower court judge ruled that the requirement to repay was essentially a poll tax but he was overruled by the 11th Circuit Court of Appeals and, eventually, by the US Supreme Court. Similarly, the GOP-dominated Florida Supreme Court, of which every member has been appointed by a Republican governor, just ruled that a ballot initiative that would legalize recreational marijuana use could not go forward. In an absurd ruling that overturned its prior reasoning in 2014 in a case concerning medical marijuana, the Court ruled that the ballot measure was misleading because it was not clear that marijuana would still be illegal under federal law. As Mark Joseph Stern notes, “Whatever the motivation, the bottom line is clear: The Florida Supreme Court does not trust the state’s voters to govern themselves”.

Ian Millhiser, speaking more broadly, declares, “At their 2020 national convention, Republicans didn’t even bother to come up with a new platform. Yet while the party appears to have no legislative agenda, it’s a mistake to conclude that it has no policy agenda. Because Republicans do: They have an extraordinarily ambitious agenda to roll back voting rights, to strip the government of much of its power to regulate, to give broad legal immunity to religious conservatives and to immunize many businesses from a wide range of laws. It’s just that the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court…By legislating from the bench, Republicans dodge accountability for unpopular policies. Meanwhile, the real power is held by Republican judges who serve for life — and therefore do not need to worry about whether their decisions enjoy public support. It’s a terrible recipe for democracy”.

Republicans, however, aren’t really interested in majoritarian democracy, and that extends to even those Republicans who oppose Trump. Jonah Goldberg, a fervent never-Trumper, recently wrote a piece where he declared that he was more interested in a “liberal” society, however he might describe that, than a democratic one. Goldberg condemns what he calls “democratic supremacy”, adding that “a liberal society can be just with remarkably little democracy. A democratic society is almost definitionally unjust without any liberalism”. Of course, as the history of this country has shown, politics itself is a battle over that definition of “liberalism”. As Will Wilkinson in his takedown of Goldberg writes, “All durable liberal societies have evolved complex democratic institutions because it’s impossible to manage foundational disagreement in a liberal way — with peaceful toleration and mutual forbearance — without them. If a minority faction manages to arrogate to itself authority over the majority on grounds that it can justify only to itself — i.e., on grounds that the majority rejects — much if not most of the population will regard this authority as illegitimate…[S]ooner or later, stymied majorities will seek to protect their rights and interests outside the system. This is what it means for a political system to lose legitimacy”.

The Big Lie is just one way that the GOP minority justifies its arrogation of authority over the majority. It is so ingrained in the Republican party at this point that there is even a farcical and fraudulent attempt to prove the election was stolen by “auditing” the results of the largest Democratic county in Arizona now nearly six months after the election. The necessity for these attacks on democracy are further justified by the racist “replacement theory” that claims Democrats are trying to replace white voters with immigrants who will be more compliant to the Democratic agenda because they can be bought off with government handouts. At the same time, Democrats are using these compliant voters to destroy white culture. Tucker Carlson has declared that every new minority voter literally “dilutes” the votes of whites, adding that “[t]o win and maintain power, Democrats plan to change the population of the country”. The short-lived Republican “America First Caucus” in the House stated that “America is a nation with a border, and a culture, strengthened by a common respect for uniquely Anglo-Saxon political traditions” and that immigration, “legal as well as illegal” threatens “the long-term existential future of America as a unique country with a unique culture and a unique identity”.

Just last month, Carlson endorsed the idea of a fascist takeover by the right proposed by former shock-jock, failed candidate, and white nationalist Jesse Kelly. Carlson agreed with Kelly’s claim that “the right is going to pick a fascist within 10 to 20 years”, adding, “[a]t some point people are going to say, ‘Why should I follow the rules? Why should I be a good citizen if they [Democrats] don’t have to follow the rules?’ I mean, things kind of break down at some point, don’t they?…We’re moving toward actual extremism because they’re [Democrats are] undermining the system that kept extremism at bay. I don’t think we can say that enough”. Considering his enormous platform and that he is at least receiving some consideration as the potential Republican nominee in 2024, the fact that Carlson condones the idea that the GOP will pick a fascist leader in the next few years is a frightening thought. Of course, some will say the party already did that with Trump.

Hopefully, Carlson and Kelly are wrong. But it is hard not to see that the American electoral system is fundamentally broken. Eliminating the filibuster and passing HR1/SB1 will do nothing to change the fact that in another two decades or less 30% of the population will control 70% of the seats in the Senate. Similarly, the small state bias of the Electoral College is likely to skew the presidential results even further, allowing a Republican to win despite losing the popular vote by an even larger margin than Trump’s 7 million. Eliminating partisan gerrymandering at the federal level will still not stop the states form gerrymandering their own state districts, meaning places like Wisconsin, North Carolina, and Pennsylvania will still likely see minority rule in their state legislatures.

The anti-majoritarian structures built into our governmental system that empower the minority are once again threatening the sustainability of our democracy. Over 50 years ago, political scientist James MacGregor Burns described the American electoral system as “a game of Russian roulette, and one of these days we are going to blow our brains out”. It seems quite possible that the pulling of that rhetorical trigger will happen in the next decade or so. A growing younger electorate is likely to get frustrated in seeing their focus on climate change and inequality continually blocked by a clear and shrinking minority. As Dave Roberts notes, “Older generations in the US do not appreciate the fact that Gen X & younger Americans have never seen functional politics based on shared facts & compromise. To them it might as well be a fairy tale. They’ve only see a conservative movement descending into reactionary madness”. Accordingly, they may look for solutions outside our political system and/or abandon democracy altogether. Similarly, January 6th and its aftermath have made clear that the white nationalist right which now dominates the Republican party has already abandoned democracy as they perceive the current state of affairs as an existential threat. As a result, American democracy may be entering its most dangerous period since the 1850s.

Originally published at https://thesoundings.com on April 28, 2021.