The United States has two political parties that for most of the last half century have been going in different directions. One, the Republican Party, has been acting like the vanguard for a coherent and determined social movement whose object has been to rewrite the rules and norms of American politics and American life.
At the same time, the Democratic Party has continued to try to be a big tent agglomeration of groups and act as if the political rules remain what they always have been.
These diverging paths accelerated with the Trumpification of the Republican Party — but their roots can be traced back to the Supreme Court’s 1972 Roe v Wade decision legalizing abortion and, especially, the failed nomination of Judge Robert Bork to the Supreme Court in 1987.
Bork — who opposed the Supreme Court’s one man, one vote decision on legislative apportionment, the 1964 Civil Rights Act, and asserted that the Constitution contained no right of privacy — became a symbol of conservative grievance. As a National Public Radio report put it, his “nomination changed everything, maybe forever.”
The Roe decision and Bork’s rejection galvanized the right wing in the service of a long term political and legal strategy. Since then, they have carefully vetted political candidates for ideological purity, unapologetically imposed litmus tests on judicial nominees, and developed an infrastructure to support their efforts.
As Princeton historian Julian Zelizer puts it, Republicans learned that winning would take a “ruthless disposition.”
Today Republicans are using Trump’s defeat in 2020 and the red herring of election fraud as their new Bork moment to propel a more insidious cause — stacking the political game to ensure that Trump (or his successor as Republican nominee) cannot lose the 2024 election.
They have their slogan — “election integrity” — as well as a disciplined message machine and an infrastructure of supportive groups. And they again have a well-honed strategy for achieving their goals, combined with that ruthless disposition.
Decades of strategic and unyielding Republican hardball is leading toward an end of our most basic constitutional institution — free and fair elections — in favor of one-party control by the minority. The right wing is animated by the belief that, as one of their commentators bluntly proclaims, “The U.S. Constitution no longer works.”
Republicans have used their control of the courts to produce democracy crushing defeats in a series of monumental Supreme Court decisions. Those decisions have gutted the Voting Rights Act, opened the floodgates to corporate campaign spending and dark money, and greenlighted partisan gerrymandering.
Democrats helplessly stood by as these assaults on our electoral system unfolded.
And from the start of the 21st century, a second Republican strategic movement gained momentum — taking over as many state legislatures as possible. Democrats seem to have paid no attention.
The result is that Republicans currently hold 54 percent of all state legislative seats nationally, while Democrats hold 45 percent. Republican majorities exist in 61 state legislative chambers, while Democratic majorities hold 37 chambers. There are currently 23 Republican states where Republicans control both state houses and the governorship, and only 15 states in which Democrats hold such a “trifecta.”
In 2021, 17 Republican state legislatures had pending bills that would permit increasing partisan control over how elections are conducted and would interfere with nonpartisan election administration. In the most radical cases, partisan actors could take over the election officials’ role, or simply declare the winner of a particular election.
Even before these developments, in July, a survey of 327 political scientists collectively projected a 55 percent probability that at least some local officials will refuse to certify vote counts in 2024, a 46 percent chance a state legislature will pick electors contrary to the popular vote, and a 39 percent likelihood that Congress will refuse to certify the election.
The same month, Timothy Snyder, eminent Yale historian of 20th century totalitarianism, predicted that “[w]e’re looking almost certainly at an attempt in 2024 to take power without winning election.”
“Midnight is approaching,” 150 scholars wrote in a July statement. “The partisan politicization of … the administration of elections represents a clear and present threat to the future of electoral democracy in the United States.
Despite these warnings, the Democratic Party still seems unable to get its act together and respond effectively.
Democrats introduce bills that — if enacted — would help, but Sen. Joe Manchin’s (D-W.Va.) dithering on President Biden’s Build Back Better proposal so far has attracted much more national attention than any of the Democrats’ pro-democracy legislation.
While President Biden called together the leaders of 107 countries to a Summit for Democracy, what we need is an urgent, focused and repeated call to domestic action led by the president.
Democrats must be as unrelentingly ruthless in defense of democracy as Republicans are in attacking it.
Nothing matters as much.
Sen. Sheldon Whitehouse (D-R.I.) gets it. In a recent podcast, he proposed a way to get the Freedom to Vote Act passed. The Act sets an ingenious path for reversing the Supreme Court’s approval of gerrymandering, expands voters’ rights, protects nonpartisan election officials, and makes campaign donations transparent, shedding light on billionaires giving “dark money.”
Whitehouse’s proposal to get the Act passed? Democrats should “get on the floor and just pound [Republicans] on [dark money] … painting them as the party defending dark money and making them vote over and over again to defend dark money … [t]hen I think they get put into a real pickle because people hate this stuff.”
If 64 Senators can support a filibuster carve-out to raise the debt ceiling, as they did on Dec. 9, then 50 Senators ought to be able to support a similar move to keep the house of democracy standing.
Barton Gellman, author of a masterful piece on Trump’s ongoing coup, has another proposal. On NPR, he said that “[g]rass-roots organizers who are in support of democratic institutions could be doing what the Republicans are doing at the precinct level … in terms of organizing to control election authorities to ensure that they remain nonpartisan or neutral.”
Time is of the essence to win the contest over the future of democracy in this country. Democrats need to put their game face on. Softball isn’t working.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.