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Democracy

The Degradation of American Democracy — And the Court

The full text of this Foreword may be found by clicking the PDF link to the left.

Introduction

On June 25, 2013, the Supreme Court invalidated the geographic coverage formula of the 1965 Voting Rights Act, effectively abrogating the preclearance requirement in section 5 of the Act.1×1. See Shelby County v. Holder, 570 U.S. 529, 557 (2013). Under that provision, most states of the former Confederacy had been required to “preclear” changes to their voting laws and practices with a federal court in Washington, D.C., or with the Department of Justice to ensure those changes did not deny or abridge the right to vote on the basis of race.2×2. See id. at 537–38. Announcing that “history did not end in 1965” 3×3. Id. at 552. and that “[o]ur country has changed,” Chief Justice Roberts, writing for the conservative majority of the Court, ruled that the geographic coverage formula contained in section 4(b) and used to identify jurisdictions subject to section 5 was outdated and could no longer be constitutionally justified.4×4. Id. at 557.

Texas Republicans apparently did not receive Chief Justice Roberts’s memo announcing how much “our country has changed.” Just hours after the decision, Texas implemented a law, enacted two years earlier but blocked by preclearance, that required government-issued photo identification to vote.5×5. S.B. 14, 82d Leg., Reg. Sess., ch. 123, 2011 Tex. Gen. Laws 619 (codified in scattered sections of Tex. Elec. Code Ann.); see also Carol Anderson, One Person, No Vote: How Voter Suppression Is Destroying Our Democracy 68–69 (2018); Michael Cooper, After Ruling, States Rush to Enact Voting Laws, N.Y. Times (July 5, 2013), https://nyti.ms/12rWFZb [https://perma.cc/95NQ-8D38]. The list of approved forms of identification included those more commonly possessed by Republican-leaning voters, such as a concealed handgun permit, but not those more commonly possessed by Democratic-leaning voters, such as college identification cards.6×6. See Ari Berman, Give Us the Ballot: The Modern Struggle for Voting Rights in America 257 (2015); see also id. at 266–68, 308–09 (discussing disparate impact of the law on different demographic groups). Hundreds of thousands of registered Texas voters did not possess valid forms of voter identification under the law, including disproportionate numbers of African Americans and Latino Americans.7×7. See id. at 308–09. Moreover, nearly a third of the state’s counties, including some with large populations of people of color, did not have motor vehicle offices, which provide driver’s licenses, the most common form of voter identification.8×8. See id. at 266; Tova Wang, Demos, Voter Identification Talking Points and Fact Sheet 1–2 (2010), https://www.demos.org/sites/default/files/publications/VoterID_National_Demos.pdf [https://perma.cc/3JZY-NNMV]; Renée Cross, Jim Granato & Mark P. Jones, In Texas, Almost All Non-voters Have a Photo ID — But Few Understand the Voter Identification Rules, Wash. Post (May 8, 2017, 8:00 AM), https://www.washingtonpost.com/news/monkey-cage/wp/2017/05/08/in-texas-almost-everyone-has-a-photo-id-but-few-understand-the-voting-rules [https://perma.cc/2CKR-9FM5].

Further, the Texas law did not require identification to submit an absentee ballot, a voting option used more frequently by Republicans than by Democrats, even though the State Attorney General’s investigation of voter fraud found that absentee-ballot fraud was much more prevalent than voter impersonation fraud.9×9. Berman, supra note 7, at 258. Indeed, the investigation had failed to reveal a single instance of voter impersonation fraud.10×10. Id. Of the 120 Republicans in that Texas legislature, all but six were white.11×11. See id. at 257. By contrast, the Democratic caucus in that legislature included eleven Caucasians, seventeen African Americans, thirty-two Latino Americans, and two Asian Americans.12×12. Id. Republican Governor Rick Perry signed the bill, declaring: “This is what democracy is really all about.”13×13. Id. at 259.

North Carolina Republicans apparently did not receive the Chief Justice’s memo either. Seven weeks after the Court’s 2013 ruling on the Voting Rights Act in Shelby County v. Holder,14×14. 570 U.S. 529 (2013). they enacted a law imposing a strict voter identification requirement that excluded public-university student identification cards and public-employee identification cards.15×15. See Voter Information Verification Act, S.L. 2013-381, 2013 N.C. Sess. Laws 1505 (codified as amended in scattered sections of N.C. Gen. Stat.); see also Berman, supra note 7, at 288, 294, 297. The legislature had not previously considered a voter identification requirement necessary, but blacks had turned out to vote at higher rates than whites did in 2008 and 2012, with Barack Obama on the ballot, and Latino and college student turnout had also increased.16×16. See Berman, supra note 7, at 291. The new law also shortened the early voting period, restricted same-day voter registration, eliminated provisional ballots for those turning up at the wrong precinct on Election Day, terminated preregistration for sixteen- and seventeen-year-olds, and rescinded the automatic restoration of voting rights for individuals convicted of felonies upon the completion of their criminal sentences.17×17. See id. at 286, 294–95.

In framing the bill, Republican legislators, according to a subsequent court finding, “target[ed] African Americans with almost surgical precision.”18×18. N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016). For example, African Americans were more than twice as likely as whites to opt for same-day registration and significantly more likely to use early voting and provisional ballots.19×19. J. Morgan Kousser, When African-Americans Were Republicans in North Carolina, the Target of Suppressive Laws Was Black Republicans. Now that They Are Democrats, the Target Is Black Democrats. The Constant Is Race. 18, 29, https://www.aclu.org/sites/default/files/assets/lwv_expert_report_-_m__kousser.pdf [https://perma.cc/5R7K-KUW6]. During the litigation challenging the law, one federal judge asked the state’s lawyers: “Why doesn’t North Carolina want people to vote?”20×20. Berman, supra note 7, at 306. The Obama Administration’s Justice Department would never have precleared such changes.21×21. See id. at 294; Sari Horwitz, Justice Department Bars Texas Voter ID Law, Wash. Post (Mar. 12, 2012), https://www.washingtonpost.com/politics/justice-department-bars-texas-voter-id-law/2012/03/12/gIQAUzgW7R_story.html [https://perma.cc/R2BR-EA8Q]. As a result of the new law, North Carolina voters encountered many problems at the polls in 2014. For example, eliminating the first week of early voting, which nearly 200,000 people had used in 2010, translated into longer lines on Election Day, especially in predominantly Democratic urban precincts, where waiting times reached as long as three hours.22×22. See Berman, supra note 7, at 312–13. Republican Thom Tillis, who had served as the Speaker of the state House of Representatives when the law was enacted, secured a seat in the U.S. Senate, defeating incumbent Democrat Kay Hagan by 48,000 votes.23×23. See North Carolina Election Results: Tillis Defeats Hagan, N.Y. Times (Dec. 17, 2014, 12:28 PM), https://www.nytimes.com/elections/2014/north-carolina-elections [https://perma.cc/Q4QY-3S6E]; see also Berman, supra note 7, at 312. Democracy North Carolina estimated that the law had prevented 30,000 to 50,000 people from voting.24×24. Press Release, Democracy North Carolina, Wake-Up Call: Up to 50,000 NC Voters Silenced by New Rules, Confusion, Poor Preparation at the Polls (Nov. 30, 2014), https://democracync.org/wp-content/uploads/2017/06/RejectedVoters2014.pdf [https://perma.cc/3D8V-68Y8].

Reverend William J. Barber II, one of the leaders of the Moral Monday movement spawned in protest against the law, declared that the law “shows the nation what these extreme right-wingers, especially in the South, are willing to do to suppress the vote without having to go through preclearance.”25×25. Berman, supra note 7, at 313; see also id. at 287. Barber did not exaggerate. Although the North Carolina law was among the most extreme, Republican-controlled legislatures throughout the nation enacted similar measures to reduce voter registration and turnout in order to preserve Republican political power in the face of demographic changes unfavorable to the party.26×26. See id. at 260, 311. Against this backdrop, Freedom House, which researches and advocates for democracy around the world, lowered the United States on the organization’s scale of zero to 100 measuring political rights and civil liberties from ninety-four in 2010 to eighty-six in 2017.27×27. Larry Diamond, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency 103 (2019). The decline in the United States’ rating exceeded that of other Western democracies.28×28. Id.; see also Michael J. Abramowitz, Freedom House, Freedom in the World 2018: Democracy in Crisis 3 (2018), https://freedomhouse.org/sites/default/files/2020-02/FH_FIW_Report_2018_Final.pdf [https://perma.cc/Z9QC-LC44]; Ishaan Tharoor, Democracy Is in Decline Around the World — And Trump Is Part of the Problem, Wash. Post (Mar. 5, 2020, 12:00 AM), https://www.washingtonpost.com/world/2020/03/05/democracy-is-decline-around-world-trump-is-part-problem [https://perma.cc/4B2L-ALEY].

Since 2017, the Republican assault on voting rights at the state level has been supplemented by President Donald J. Trump’s attack on the basic norms and institutions of democracy at the national level. President Trump attacks the press as “the enemy of the people”; assails federal judges who invalidate his Administration’s policies or incarcerate his former political associates; politicizes law enforcement, intelligence, and other sectors of the federal government; uses the presidency for personal gain; slyly encourages violence; makes racist statements and enacts racist policies; systematically lies; erodes government transparency; expresses admiration for foreign autocrats; and delegitimizes elections and political opposition.29×29. See infra section I.B, pp. 19–45.

More than thirty years ago, political scientist Francis Fukuyama, reflecting on a wave of democratization that had swept the world beginning in the 1970s, concluded that liberal democracy had become inevitable — the logical endpoint in the evolutionary trajectory of the modern state.30×30. Francis Fukuyama, The End of History?, Nat’l Int., Summer 1989, at 3–4; see also Diamond, supra note 28, at 48; Yascha Mounk, The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It 3–4 (2018); Kim Lane Scheppele, Autocratic Legalism, 85 U. Chi. L. Rev. 545, 559–60 (2018). However, over roughly the last fifteen years, Freedom House has recorded erosion in levels of freedom in once-strong democracies such as Hungary, India, the Philippines, Poland, and Turkey.31×31. Sarah Repucci, Freedom House, Freedom in the World 2020: A Leaderless Struggle for Democracy 1–2, 11, 14, 22 (2020), https://freedomhouse.org/sites/default/files/2020-02/FIW_2020_REPORT_BOOKLET_Final.pdf [https://perma.cc/D9DV-FZNV]; see also Scheppele, supra note 31, at 547. Governments in these countries have shut down independent media, assailed and incarcerated independent journalists, packed courts and bureaucracies with their supporters, dismantled independent institutions of civil society, and vilified racial and religious minorities to distract attention from problems they cannot solve.32×32. See generally Arch Puddington, Freedom House, Breaking Down Democracy: Goals, Strategies, and Methods of Modern Authoritarians (2017), https://freedomhouse.org/sites/default/files/2020-02/June2017_FH_Report_Breaking_Down_Democracy.pdf [https://perma.cc/P4U3-MEJQ] (discussing behavior and tactics of modern authoritarian leaders).

Many Americans cannot imagine the erosion of their own democracy.33×33. See Mounk, supra note 31, at 24–25. The United States has the longest-standing constitution in the world, a strong middle class, high levels of wealth and education, and deeply entrenched democratic institutions and mores.34×34. See Steven Levitsky & Daniel Ziblatt, How Democracies Die 1 (2018). Yet the United States is not immune from world trends of declining democratization.35×35. See, e.g., Mounk, supra note 31, at 44; see also Diamond, supra note 28, at 289; Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. Rev. 78, 100, 120 (2018) (arguing that the United States is not immune to democratic decline but is unlikely to become authoritarian). In addition to the developments already noted, research shows that younger Americans are much less committed to democracy than their elders are. Among Americans born in the 1980s, only twenty-nine percent believe that living in a democracy is “essential,” as compared with seventy-one percent of those born in the 1930s.36×36. Mounk, supra note 31, at 105.

This Foreword examines the recent degradation of American democracy, seeks explanations for it, and canvasses the Supreme Court’s contribution to it. Section I.A examines the “authoritarian playbook” to establish a baseline against which to evaluate recent American developments. Section I.B considers President Trump’s authoritarian bent. Section I.C describes the state measures that Republicans have enacted to entrench themselves in power, including partisan gerrymandering, voter identification laws, purges of the voter rolls, measures to suppress the youth vote, circumvention of inconvenient voter initiatives, and even the delay and cancellation of elections. Section I.D explores Republicans’ escalating complicity with President Trump to the point that they mostly do not criticize him for obstructing the investigation into Russian interference with the 2016 presidential election, pressuring the President of Ukraine to dig up dirt on Joe Biden, politicizing law enforcement and intelligence, or catastrophically mishandling the federal government’s response to the coronavirus pandemic.

Part II offers explanations for the nation’s current political predicament. Groups that fear becoming perpetual political losers may abandon their commitment to democracy, just as white southerners did in the antebellum period. Section II.A, “The Disappearing White Majority,” examines the role of demographic change, immigration, and increasing racial resentment in seeding disaffection with democracy. Section II.B, “The Disappearing Christian Majority,” describes how the gradual collapse of the idea of the American “Christian nation” has contributed to such disaffection. Section II.C, “The Rise of the Neo–Ayn Randians,” considers how radical libertarians, never enthusiastic about democracy because of the threat it posed to property rights, gradually gained ideological and political influence since the 1960s and came to dominate the Republican Party. Section II.D, “Economic Inequality,” explores how working-class Americans, whose economic situation stopped improving about forty years ago, have become disaffected with a democratic political system that no longer works for them. Section II.E explains how these other developments, refracted through American political and media ecosystems, have produced a politics of asymmetric polarization, hardball, and negative partisanship, which created a Republican Party no longer strongly committed to democracy and prepared to defend at all costs a President with a strong authoritarian bent.

Part III examines the Supreme Court’s contributions to the degradation of American democracy. As already noted, in 2013, the Court’s conservatives essentially abrogated the preclearance provision of the Voting Rights Act, enabling Republican governments in the South to enact voting restrictions that allowed the party to maintain political power in rapidly diversifying states such as Florida, Georgia, North Carolina, and Texas. The Court’s Republican Justices have also upheld stringent voter identification laws and purges of the voter rolls, both of which purport to address the largely nonexistent problem of voter fraud while disfranchising Democratic-leaning constituencies, such as people of color, the poor, and the young. Most recently, the conservative Justices have declined to intervene against partisan gerrymandering, which has mostly benefited Republicans in recent years.

The Court’s campaign finance decisions, dating back to 1976 but becoming increasingly extreme over the last decade, have created a political system dominated by money, which advantages Republicans who disproportionately benefit from the political spending of the most affluent Americans. In Bush v. Gore,37×37. 531 U.S. 98 (2000) (per curiam). the Court helped elect a Republican President, who appointed two conservative Justices who made possible the recent rulings undermining democracy.

In 2019, the conservative Justices fell one vote short of enabling Republicans to entrench themselves in power for another decade by ensuring that people of color would be undercounted in the 2020 census. Only a last-minute change of heart by the Chief Justice stymied that effort. The conservative Justices have also abjured the Court’s traditional role in protecting vulnerable racial and religious minorities from discrimination by validating the Trump Administration’s thinly veiled ban on Muslim travel to the United States. Part III concludes by discussing how constitutional interpretation works in general and why the Republican majority’s rulings on issues of democratic governance nearly always benefit the Republican Party.

Part IV briefly considers how to bolster American democracy. The best way to stem the degradation of democracy is to entrench democracy. Yet this is an uphill battle, both because political actors who benefit from the status quo are incentivized to resist changes to it and because various structural features of the American political system advantage Republicans. To entrench democracy, Democrats would need to overcome simultaneously the disadvantages of partisan gerrymandering and geographic clustering in state legislatures and the House of Representatives, extreme malapportionment in the Senate, the vagaries and malapportionment of the Electoral College, and the flood of unregulated political spending that the Court has unleashed. Even then, Republican Justices might invalidate democracy-entrenching measures. Moreover, some such measures, such as campaign finance reform, may require a constitutional amendment, given the conservative Justices’ strained interpretations of the First Amendment.

The Court has a Republican majority today only because Senate Majority Leader Mitch McConnell stole a Supreme Court seat from Democrats in 2016, when he refused to permit President Obama to fill the vacancy left by the death of Justice Scalia. To entrench democracy, Democrats will probably have to undo that theft.

A brief Conclusion examines competing reasons to be pessimistic or optimistic regarding prospects for stemming the degradation of American democracy and reflects on the deeply contingent nature of this story’s outcome.

Autocrats around the world sow disinformation, undermine confidence in truth, and normalize chaos. They take advantage of the powerful psychological tendencies to normalize the world as it exists and to resist imagining worst-case scenarios and of the powerful impulses to believe that every story has two sides and that all political actors engage in roughly similar forms of behavior. Those who resist autocracy must insist on the difference between fact and opinion, counter the impulse to normalize lies and outrages, and reject the assumptions that all stories have two sides and all political actors are basically the same. This Foreword is written in the spirit of that resistance.


∗ Kirkland & Ellis Professor, Harvard Law School. Thanks to my assistant, Mindy Eakin, who makes all of my professional work possible. Mindy Kent provided invaluable reference assistance, as did Maya Bergamasco. I am immensely grateful to the many research assistants who helped me with this project: Cecil Abungu, Kelsey Fraser, Sam Fry, Kim Hill, Stephanie Horwitz, Jess Hui, Izzy Jensen, Will Meyer, Julia More, Jarrod Nelson, Ally O’Connor, Will Ossoff, Owen Senders, Andrew Skaras, Ross Svenson, Michael Torcello, and Ali Wolfson. Special thanks to Kevin Bendesky, Michael Mitchell, John Sullivan, and Cem Tecimer, who, at various points over the summer, were working virtually full time on this project. I received helpful comments from Martha Minow, Eli Nathans, Aziz Huq, Daryl Levinson, Matt Wansley, Chris Havasy, Neil Eggleston, Francesca Procaccini, and Oliver York. Mike Seidman and Susannah Barton Tobin made especially important contributions to improving the manuscript. My brother, Seth Klarman, also provided helpful comments as well as inspiration through his many contributions to preserving American democracy. I dedicate this Foreword to the memory of my father, Herbert Klarman. He was a Polish Jew who came to the United States in 1929. His life embodied the American Dream, and he loved his country in a way that may be distinctive to immigrants coming from places of true oppression. He would have been appalled, though I hope not dispirited, by the recent degradation of American democracy.