Democracy Requires Consensus on the Rules

So how can you enact necessary reforms in an era of profound partisan distrust?

\My latest column at The Week is about a thorny problem for democracy in the age of right-wing populism. Right-wing populism thrives on a sense of crisis, the sense that the nation itself is at stake and that only they, the “true” representatives of “the people,” can be trusted to save it. Because of the nature of that appeal, right-wing populism has trouble with accepting the alternation in office that is fundamental to democracy. For that reason, pro-democratic forces in a variety of countries have tried to unite against the right-wing populist threat. But in doing so, they effectively replicate the dynamic that the right-wing populists themselves initiated. That is to say: they are treating the situation as a crisis, something fundamental and more important than ordinary politics. That makes it extremely difficult for these forces to accept a loss either, which means they also become problematic for democratic legitimacy.

I was thinking about this paradox with respect to the ongoing move by Republican state legislatures to seize more control of the election certification process which, combined with pervasive partisan gerrymandering, poses a real threat to democracy. The nightmare scenario runs something like this. Republicans in a handful of key states lose the statewide popular vote, but nonetheless retain substantial majorities in their state legislatures due to gerrymandering. Then, when there’s a statewide vote for president where gerrymandering is not a factor, they respond to an apparent loss by claiming fraud and overturning the vote. Finally, when the question comes before the courts, partisan judges rule for the Republicans. Democracy would effectively be overturned via partisan self-dealing.

A lot of Democrats and democrats are already very concerned about this possibility, which is why they are raising the alarm with statements like this one from the New America Foundation calling for national standards adopted at the federal level to preempt these laws. It’s a problem I worry about a lot as well, and I strongly favor reforms both to eliminate gerrymandering and to make voting a protected right. I note in passing that my state, New York, has some of the most retrogressive and anti-democratic election rules out there; this doesn’t have to be a purely partisan issue.

In the current electoral climate, though, it does; federal election laws can only be passed on a party-line vote. But if they are passed that way, how can they come to be seen as legitimate?

This problem is closely related to the paradox I described in my column. Political reforms like eliminating gerrymandering or establishing uniform standards for elections are the kinds of things that are generally undertaken in a bipartisan or trans-partisan fashion for good reason. If all parties have a role in setting up the rules, then all can be expected to view those rules as legitimate, to abide by them, and to oppose efforts to undermine them. That may mean compromises; maybe you need to pass a voter I.D. law to satisfy Republican concerns about fraud and in exchange you get an expansion of the number of voting places, or whatever. But if the result of the compromise is a legitimate system, that matters far more than whether the system is optimal in other ways.

If one party disproportionately benefits from an unreformed system, though, and its voters have come to believe that the other party is making changes precisely in order to cheat, then it will be impossible to enact necessary reforms in a bipartisan manner. That makes reform all the more necessary—but it doesn’t change the fact that a purely partisan effort is likely to be viewed as illegitimate by the other party. Indeed, it makes it more likely.

It’s vital to recognize the perfect parallelism between the views of partisans on both sides of the divide on this matter. Republicans, after all, believe in widespread vote fraud. The legal changes they are enacting are being touted precisely as a response to a serious problem in the integrity of democracy. Democrats, though, do not view these moves as legitimate; on the contrary, they view them as an illegitimate attack on democracy itself. The Democratic response is not to say, “let’s work on bipartisan reforms to prevent fraud,” but to say that this is a largely made-up problem invented in order to skew election outcomes further in the Republican direction—because that is what they sincerely believe based on the evidence. Unsurprisingly, though, this does not convince Republicans to change their views. On the contrary, even when neutral referees attempt to disabuse them of their convictions, and declare elections free and fair, that only undermines their trust in the referees, and convinces them further that the Democrats’ own objective is to cheat. Elected officials may be cynical and know better, of course, but their voters must be presumed to believe what they say—and from the perspective of what they believe, the views of the two parties are perfectly parallel and perfectly irreconcilable.

Which is why I don’t know an answer to this problem. I don’t know how you change the rules of the game in a partisan fashion without seriously threatening the legitimacy of the game itself. But if the rules are deeply unfair, and you have the power to change them but refuse to do so, then you also seriously threaten the legitimacy of the game itself.