The GOP's Maxim: For My Friends, Everything — For My Enemies, Election Law
Since Joe Biden’s election last fall, the American political left and center – territory now occupied exclusively by Democrats – have acted as though the Donald Trump years never happened. Progressives have revived a longstanding agenda aimed at perfecting American democracy. Moderates, led by President Biden, stand ready to compromise with Republicans to make deals because politics, they still believe, is the art of the possible.
These tactics are not only misguided but also dangerous to the goals both groups wish to achieve – because both tactics depend for their success on conditions that no longer exist.
Between the end of the Second World War and 2016, American politics presupposed a competition between two parties robustly committed to liberalism. I don’t mean the “liberalism” we colloquially attribute to people on the political left. I mean the philosophical liberalism on which the country was founded – the idea that all persons are created equal, that people have the right and authority to rule themselves, that all individuals hold rights enabling them to participate in self-government and to protect their dignity as human beings, and that the general welfare depends on faithful adherence to the rule of law.
The great and wholly unforeseen political disaster of our times, however, is that the United States no longer has two parties committed to liberalism. The Democratic Party retains its historical commitment to liberal democracy. The Republican Party, on the other hand, has become something else entirely: It has become a party of illiberalism and authoritarianism. Its leaders no longer profess the basic equality of all Americans. They oppose popular sovereignty anywhere that its exercise results in the elevation to office of Democrats. They seek to undermine the rule of law, adhering instead to the maxim followed by dictators everywhere: “for my friends, everything; for my enemies, the law.”
In these circumstances, the progressive agenda is irrelevant. The issue on the table is not what steps we should take to perfect our imperfect democracy. It is whether we will have any democracy at all, imperfect or otherwise.
The moderate agenda is equally anachronistic. When both major parties shared a commitment to liberalism, deals were possible because any compromise would necessarily fall within a range of acceptably liberal outcomes. It was always possible to take a deal now in the knowledge that an opportunity might well arise in the future to make a better one.
But when one party offers liberal democracy and the other offers illiberal authoritarianism, deal-making takes on an altogether different complexion. Nowhere can the new dynamic be more clearly observed than in the titanic struggle now being waged over the content of American election law.
From the political left and center, people of good will, sincerely committed to democracy, have generated proposals for reform. These proposals generally strive to expand democratic participation to get a more complete and thus accurate picture of popular sentiment, and to improve the integrity of democratic processes by ensuring that they are conducted under conditions of basic fairness.
The authoritarian right has also generated a mass of reform proposals, but of a very different nature. Virtually all the measures advanced by Republicans aim to make voting more difficult, expensive, and time-consuming, thus limiting the expression of the popular will. These laws often target groups known or thought to vote Democratic in the hope that their impact will disproportionately suppress turnout for Democratic candidates.
Republicans justify these proposals as necessary to prevent voting fraud. This is a colossal, bare-faced lie: There is no voting fraud, and certainly none on a scale capable of altering the outcome of any election to federal office. Contrary, then, to what Republicans say (except in unusual moments of candor), these proposals aim not to improve the integrity of election law, but to undermine it. Their goal is not to enhance the accuracy and responsiveness of democratic elections, but its opposite: to secure perpetual Republican power, which is to say, the power of a political minority. And not just a political minority, but an illiberal one – one that has no plans to extend to its opponents the fair opportunity to rotate into office that serves as a basic foundation of liberal democracy.
In these circumstances, it is not merely naïve but dangerous in the extreme to approach election law reform as though it were business as usual.
First, what is at stake is not control over the levers of power in a liberal democracy, but the fate of liberal democracy itself. Four more years of Trump, or one of his toadies, will, I fear, extinguish any possibility of maintaining liberal democracy as it has been known in this country.
Second, under these circumstances no compromise is possible. On what grounds can liberalism compromise with illiberalism, or democracy with authoritarianism? “We say all people count equally, you say only Republicans count; okay, we’ll meet you halfway”? “We say governmental legitimacy requires fair competition and rotation in office among political parties, you say government is legitimate only when it is controlled by Republicans; okay, let’s split the difference”?
Third, the only possible way to secure the continuation of liberal democracy in this country is through the exercise of power when those committed to liberal democracy have the opportunity to use it. That moment is now – when Democrats control both houses of Congress and the presidency. Delay here cannot be tactical; it can only be fatal – fatal to the freedom and equality that liberal democracy alone among modern forms of government has been able to secure.
James A. Gardner is an election law scholar and professor at University at Buffalo School of Law, State University of New York.
