Can the law of democracy save democracy? Maybe—but not if we’re counting on the courts to save us, answer Guy Uriel-Charles, Luis Fuentes-Rohwer, and Farris Peale in their thought-provoking (and sobering) article, Reconstructing (The Law of) Democracy. Their paper’s key insight observes that today’s most important election law cases involve questions of “partisan existentialism” that are not only entirely absent from earlier election law disputes, but are also beyond courts’ capacity to resolve.
The authors start by explaining why one might have thought that the courts could help us escape from today’s democratic dysfunctions. They describe the series of mid- to late 20th-century malapportionment, ballot access, and related election law decisions in which the Court was understood as protecting representative democracy from certain democratic dysfunctions. The “perceived success” of that series of cases—which began with Baker v. Carr and continued through Reynolds v. Sims and Williams v. Rhodes, among others—“helped to develop a foundational view: that the Court both could and should intervene to prevent breakdowns in the systems of representative democracy.”
To be sure, even then some were skeptical that the Court could effectively play the role of democracy’s guardian. For instance, as the authors recall, Felix Frankfurter “warned that judicial intervention [in malapportionment cases and related disputes] would produce dire consequences. If the Court weighed in on these questions, it would not only be perceived as meddling in the people’s politics, which was bad enough, but it would also be viewed as a shill for one of the political parties.” Still, for roughly a half-century, many came to view the Court as “necessary for actualizing self-government in a constitutional republic and addressing the dysfunctions of American democracy.”
But that was then and this is now.
What’s different today, the authors assert, is an unprecedented and pathological combination of partisanship and polarization. Partisans on both sides believe that the other side poses unacceptably grave threats to democracy. “Two hyperpolarized and fundamentally divergent parties developed different world views. Unable to reconcile their differences, they took ever more divergent approaches to political competition while cooperating less and less. That cycle of mistrust eventually, and unsurprisingly, led to current political conditions: both existential fear for American democracy and irreconcilable partisan views of the sources of the threat to democracy.”
Both parties cast themselves as the champion of democracy even while they disagree over what democracy requires. The Democratic party embraces “a vision of broad, competitive democracy that aligns with the understanding of electoral competition long held by most political scientists.” In contrast, the Republican party embraces a different “version of republican democracy that includes and emphasizes the many minoritarian features that have long been part of our democracy—such as the electoral college.” Long story short, according to the authors, Republicans emphasize a view of democracy rooted in history, tradition, and security, and that Democrats instead articulate a vision of democracy rooted in change and transformation. “The politics appear existential because both sides believe that at stake is not just a particular policy or issue but a fundamental commitment to liberty, individual, flourishing, and the American constitutional system of self-governance.”
These pathologies have wrought a sea change in what election law cases now call upon courts to do: “Each party seeks the imprimatur of the courts—a judgment that their side is preserving democracy while the other party is illegitimate. Put differently, the Court is not only being asked to adjudicate representative democracy itself, but to pick one side’s view as the defender of the constitutional republic.”
This is something entirely new under the sun, according to the authors. Courts have adjudicated highly partisan disputes and they have adjudicated disputes involving threats to democracy. But never, the authors assert, have courts had to deal with partisan disputes over threats to democracy.
More specifically, courts can handle disputes with significant partisan valence so long as the parties don’t divide over the meaning of democracy: along these lines, the authors propose that Bush v Gore reflected a highly partisan divide but not one where the parties accused each other of authoritarianism (some may have different recollections of that dispute’s tenor). Conversely, the authors assert that courts could handle disputes over malapportionment as a threat to representative democracy so long as those disputes were not described or understood in partisan terms. Until very recently, then, election law disputes “did not ask the Court to choose between two parties both claiming to defend democracy from the other party.”
Surely that cannot be, you might think. What about challenges to White primaries and so many other efforts to exclude people of color from American democracy? Nope, say the authors. To be sure, the White primary cases and related disputes involved “genuine antidemocratic behavior by political elites and extreme interference with the democratic process.” But the authors emphasize what they see as the Court’s deliberate choice to avoid defining these as partisan disputes about whom a representative democracy must include, and its choice instead to frame those disputes solely in racial terms that did not require them to pick winners and losers between the political parties.
To illustrate today’s new generation of what they call “partisan-democracy” cases, the authors describe the parties in Trump v. Anderson as asking the Court to decide whether preserving American democracy requires “President Trump’s exclusion because he had engaged in insurrectionist and authoritarian behavior” or instead requires the rejection of efforts “to exclude President Trump from office because it represented an attempt to interfere with voters’ will and punish a successful political rival.” In other words, today’s Court “is not only being asked to adjudicate representative democracy itself, but to pick one side’s view as the defender of the constitutional republic.”
Courts can expect a continued influx of partisan-democracy cases, the authors predict. They predict, too, that courts will not be competent to decide them: “If the Court repeatedly selects a partisan vision of democracy that the other side views as authoritarian, the Court risks convincing one or both sides that authoritarianism had prevailed and the electoral game is no longer being fairly played.” (Many believe this already.) “It is too tall an order to expect the Court to functionally declare that one of our two major political parties is an authoritarian…. It should surprise no one if the Court is unwilling to play that role.” We must look to someone or something other than the courts to reconstruct democracy to address the pathologies of our contemporary politics, which requires “a political consensus about the nature of representative government that only the people and their representatives can make.”
What, then, to do? And who should do it?
Neither optimistic nor nihilist, the authors sketch a menu of possibilities. To start, they identify steps that the political parties themselves could quickly take to strengthen their internal structures to resist capture by extreme factions and candidates. These include channeling donations through the party leadership for distribution to candidates as well as exercising greater party control over candidate selection (by, for example, turning away from primaries).
Next, the authors suggest changes to our voting systems. Start with the current single-district winner-take-all system that incentivizes the twin pathologies of partisanship and polarization. Replacing that system with any of a variety of proportional voting alternatives would mean that the share of the vote commanded by a party (or other group) would determine the number of representatives elected by that group. Already at work in a number of the globe’s democracies, these systems enable representation of a wider range of political views, and incentivize voter turnout by enabling groups to elect representatives even when they don’t command sufficient numbers to prevail in winner-take-all systems.
Other possibilities include any of a variety of ranked-order voting systems (already in place in some U.S. jurisdictions) that permit voters to rank the available candidates rather than having to pick just one. And nonpartisan primary systems where the top four candidates—regardless of vote share or party affiliation—move onto the general election. This helps escape the tyranny of the primary in jurisdictions where only one party is competitive.
Each of these alternatives can help defuse extreme partisanship and polarization by increasing voters’ choices and creating opportunities for more moderate candidates to be successful. Each requires changes to party rules and practice, or to federal, state, or local state statutes, but not to the Constitution.
Looking at the even bigger picture, the authors suggest that we open up the Constitution for amendment and consider anew whether to keep anti-majoritarian features like the electoral college and the Senate, whether to constitutionalize expanded voting access, and whether to reconsider the role of money in politics. (For various thoughts on what that process might look like, see, for instance, here, here, and here.)
Amending the Constitution is a heavy lift in the best of times. And it’s one that now requires election law scholars, among others, to identify constructive approaches for undertaking this process in our partisan-existentialist time where almost everybody expects their opponents to rig the results. And to be sure, the other, nonconstitutional, options identified by the authors trigger the same doubts: to be successful requires avoiding a descent into partisan-existentialist rhetoric and strategies and the paralysis they so often generate. Even so, the authors counsel, the nature of our contemporary democratic pathologies is such that each of these options, however difficult, is a better bet than relying on the courts.
