Voting Rights and Democracy

Be Ready for a Lengthy, Vicious Struggle

How will the winning candidate piece together a victory in 2020?

David Byler, a data analyst for The Washington Post who anticipates a Biden victory, sees the presidential election as the first true affirmation in this century of the “The Emerging Democratic Majority,” an argument developed by John Judis and Ruy Teixeira in a prescient 2002 book.

Judis and Teixeira contended that a moderate “progressive centrism” — something, in other words, that looks a lot like Bidenism — could gain majority status, consistently taking “professionals by about 10 percent, working women by about 20 percent, keep 75 percent of the minority vote and get close to an even split of white working-class voters.”

Byler makes the case that Biden and the Democrats are very likely to emerge from the 2020 election with the backing of this progressive-centrist coalition, positioned to “secure a large, balanced majority capable of enacting new progressive laws and possibly able to mitigate losses in a low-turnout midterm” in 2022.

But Byler cautions that the success of any single partisan coalition is likely to be short-lived. In his view, the center-left and center-right coalitions represent a structural aspect of contemporary democratic political competition and that they are likely, over time, to alternate control of the government:

If Biden successfully builds the emerging Democratic majority, Republicans will find some way to push back. That’s democracy. Just as Donald Trump found a way through Obama’s supposedly invincible “blue wall,” and Bill Clinton triangulated his way out of the Reagan era, Republicans would eventually find a way around a Biden majority.

A less politics-as-usual perspective about where we are headed — a more vivid and embattled way of looking at this election — is put forth by Michael Klarman, a professor at Harvard Law School, in his recent essay “Trump, the Republican Party and the Rule of Law.”

“President Trump poses a greater threat to the rule of law than anything Americans have witnessed in generations,” Klarman writes:

One would hope that the other branches of the national government would check the President’s assault upon it, but this has not happened. Under Republican control for the first two years of Trump’s presidency, Congress proved more of a willing accomplice to, than a check upon, the President’s assault upon the rule of law.

Prompted by the stark difference between these two approaches — the first dispassionate and analytic, the second almost verging on the apocalyptic — I asked a number of experts the question, “What is at stake this year?”

Isabel V. Sawhill, a senior fellow at Brookings, replied by email:

This is an election less about policy and more about the character of the candidates and the character of the country, with one being a reflection of the other. Should Trump win, it would be a signal that our cultural divisions have gone past the point of no return, that demographic and cultural change has come too fast for many people to handle, that a backlash has reached hurricane proportions.

Politics “is now close to a religion,” Sawhill continued:

In short, people are no longer voting based on economic self-interest or the policies they favor as much as on the basis of their cultural values, the kind of society in which they want to live, and the kind of person they believe they are.

Ryan Enos, a political scientist at Harvard, also expressed a sense that we are in an Armageddon-like battle: “Our democracy as we know it is at stake.”

Trump, Enos argues, has

ruled in the exact way of leaders in other countries who dismantled democracies. In addition, he has attacked the independent, nonpartisan nature of the modern bureaucratic state — the kind of people who allow us to know if our water is clean, fairly administer our elections, and decide whether to prosecute criminals — in other words, the people who ensure stability and quality of life in a modern state.

Enos makes the case that the threat to democracy lies not only in Trump but in the willingness of the Republican Party to ratify his actions:

Trump has stoked partisan and racial animus, deepening divisions and raising tensions to a dangerous level. That a leader might do these things is not what puts our democracy at stake but that, once his party fell in line with him, the capacity of other leaders to check him through means like impeachment proved so futile.

Larry Bartels, a political scientist at Vanderbilt, is focused on a long-term issue: the partisan consequences of rising levels of racial and ethnic animosity.

On Aug. 31, Bartels published “Ethnic antagonism erodes Republicans’ commitment to democracy,” a report based on a January 2020 survey of 1,151 Republican identifiers and Republican-leaning Independents.

Bartels reports that:

Most Republicans in a January 2020 survey agreed that “the traditional American way of life is disappearing so fast that we may have to use force to save it.” More than 40 percent agreed that “a time will come when patriotic Americans have to take the law into their own hands. In both cases, most of the rest said they were unsure; only one in four or five disagreed.”

The strongest predictor of these anti-democratic views “by far,” according to Bartels,

is ethnic antagonism — especially concerns about the political power and claims on government resources of immigrants, African-Americans and Latinos. The corrosive impact of ethnic antagonism on Republicans’ commitment to democracy underlines the significance of ethnic conflict in contemporary U.S. politics.

The Bartels survey shows why Trump stresses divisive racial and ethnic themes to mobilize his base: because Republicans are far more receptive than Democrats to Trump’s claims, which was not always the case.

Bartels writes:

The powerful effects of ethnic antagonism on Republicans’ antidemocratic attitudes underscore the extent to which this particular threat to democratic values is concentrated in the contemporary Republican Party. Seventy-eight percent of Democrats and Democratic-leaning Independents in the 2020 survey had ethnic antagonism scores below the fifth percentile of the Republican distribution, while 98 percent had scores below the Republican average.

In other words, ethnic antagonism is a far stronger force among Republicans than it is among Democrats.

The Trump years have also produced sharp partisan polarization on a measure of racial empathy and resentment between white Democrats and white Republicans.

Andrew Engelhardt, a political scientist at the University of North Carolina-Greensboro, found that from 2016 to 2018, the share of white Democrats who fell into the three most racially empathetic categories increased by 50 percent, while the percentage of white Republicans in the three most racially resentful categories grew by 18 percent.

Like David Byler, other observers see the 2020 election as a continuation of what has become, in this country, normal political competition. Richard Reeves, a senior fellow in Economic Studies at Brookings, views American politics as shifting back and forth from right to left, with both sides inclined to levels of exaggeration that can be destructive. He wrote by email:

Many conservatives believe that the battle for civil rights is over, and that if anything the “pendulum has swung too far.” The political left then encourages this view by declaiming America to be a nation in the grip of deep patriarchal and racist systems that oppress everybody except white men — and that simply doesn’t comport with the experience of many people.

Reeves, who came to the United States from England, argues that the

loss of faith in progress itself, or at least an apparent inability to both celebrate success and continue to fight for more at the same time is a huge problem in our political discourse.

The question for both sides now, in Reeves’s opinion, “is whether their strategic goal is to try to win the culture wars or to de-escalate them.”

Reeves continues:

The idea of winning the culture war is based on a view that somehow or other we can force an entire nation to adopt our views on a range of issues, from abortion to racism to religion to feminism. Not only is this not possible, it is not desirable.

The most contested constituency, this year, is the white electorate which, since the 2016 election, has been moving in a Democratic direction.

Brian Schaffner, a political scientist at Tufts and co-director of the Cooperative Election Study, analyzed the study’s latest poll data and found that

The most significant change in Trump’s coalition is his loss of support among white voters. He lost college educated whites in 2016, but still fared well enough among that group to edge out his victory. But this year he’s performing about 5 points worse among that group and only getting about 30 percent of the vote among college educated women.

Compounding Trump’s difficulties, Schaffner continued in an email, is that

He’s also lost support among his base — white voters without college degrees. In 2016, he won about 60 percent of the vote among non-college white voters, but his support among this group has dropped by several points in 2020. This erosion has come largely among nondegree white voters who are not evangelicals.

There are two other key trends, according to Schaffner: the first is the pattern of defection among 2016 voters, and the other is the voting intention of those who either sat out 2016, or voted for third-party candidates.

“We see Trump losing nearly one of every 10 people who voted for him in 2016 while Biden is winning nearly all of Clinton’s voters,” Schaffner wrote by email. “The other big shift,” he continued, “is among people who did not vote in 2016 or who voted for a third-party candidate. Those voters are favoring Biden by a two-to-one margin over Trump.”

Alexander Agadjanian, a doctoral candidate in political science at Berkeley, recently ran a comparison of poll data from the 2016 election with another set of surveys leading up to the 2020 election. In an email, Agadjanian described some of the “fairly consistent trends in how Trump’s coalition is changing,” focusing on alterations in the political preferences of women.

From 2016 to 2020, Agadjanian reports, Trump’s support among women dropped and “as it stands now, 2020 could introduce one of the bigger increases in the voting gender gap in recent memory.”

Agadjanian also evaluated trends among independents:

Trump has suffered huge losses among Independents. On average in my polls, Independents have swung a net 18 points away from Trump into Biden’s column. While Trump got more of the Independent vote in all 8 polls I’m looking at from 2016, Biden now wins Independents in 7 of the same 8 polls from 2020. Voters who described themselves as ‘moderates’ in term of ideology have swung against Trump as well.

Agadjanian’s analysis affirms the findings of my colleague, Nate Cohn, in his Oct. 28 article, “The Election’s Big Twist: The Racial Gap Is Shrinking.”

Agadjanian wrote:

Trump’s coalition has curiously gotten less white but more racially diverse. Relative to their 2016 voting behavior, Blacks and Hispanics have moved somewhat in Trump’s direction. It’s not by a lot, but could now be key to Trump’s re-election chances.

The defections, albeit modest, among Black and Hispanic voters have emerged despite the all-out efforts of politicians and opinion leaders in the minority community to stress the threat posed by Trump.

Vesla Weaver, a political scientist at Johns Hopkins University, emailed me with her concerns:

Given that Trump has come to stand for the consolidation of white male power and a return to an America before the distribution of political and economic power to Blacks, a Trump win or a narrow loss will signal that a large share of America shares in his vision. I’m worried that even a Trump loss will still be a win among the white electorate.

Weaver, co-author of the book “Creating a New Racial Order: How Immigration, Multiracialism, Genomics, and the Young Can Remake Race in America,” wrote in her email that a week after the police killed George Floyd, she and some colleagues “conducted a survey that included 236 Black, 188 White and 100 Latinx respondents.”

The results, Weaver wrote, showed that Black and white Americans continue to live in two different worlds and that “Americans do not feel themselves governed by the same rules and do not experience American democracy the same way.”

Facing the prospect of defeat, Trump’s default strategy, which he has made clear in his public pronouncements, despite the occasional halfhearted denial, is to falsely assert that he won the election late Tuesday night or early Wednesday morning if he briefly pulls ahead in the preliminary returns.

Should Trump declare victory — in an attempt to short circuit an accurate vote count — he would need the support of Republican legislators in swing states like Michigan, Wisconsin, Florida, North Carolina and Pennsylvania, with the objective of having mail-in ballots declared fraudulent. That would set in motion a series of legislative and court battles that I and others have written about extensively.

Trump has repeatedly declared his intention to challenge late-counted ballots, ballots which are widely viewed as certain to skew Democratic.

In North Carolina, on Nov. 1, Trump warned, “We’re gonna go in, the night of, as soon as that election’s over, we’re going in with our lawyers.”

Richard Hasen, a professor of law and political science at the University of California-Irvine, explained in a Nov. 1 article in Slate how Trump would go about prematurely and illegitimately declaring victory on election night:

In some states the early vote count should favor Trump even if he loses by a lot of votes when all the votes are counted. According to calculations by 538, we could be in a situation where Trump is ahead by as much as 16 points on election night in Pennsylvania, only to see a loss of 5 points or more when all the ballots are counted within about a week of the election — a 21-point swing.

Hasen is convinced that Trump’s “strategy is not going to work,” arguing in his essay that

the networks and news organizations are prepared for this and Americans have learned to discount anything the president says. Most are inoculated from his lies about voting. And assuming there are no major foul-ups in how the rest of Election Day voting goes, it is hard to imagine any legal strategy that will lead courts to order a halt to the counting of ballots that have arrived before Election Day, even if there could still be litigation over late arriving ballots.

Trump has a powerful incentive to prolong his tenure in the White House, by any means necessary, because of the threat of criminal prosecution if he loses the protections of the presidency. So far, he has had a history of inoculation against paying the price any normal politician would pay for lies he has told.

Jane Mayer writes in “Why Trump Cannot Afford To Lose” in the current issue of The New Yorker that

As Donald Trump fights to hold on to the White House, he and those around him surely know that if he loses — an outcome that nobody should count on — the presumption of immunity that attends the presidency will vanish. Given that more than a dozen investigations and civil suits involving Trump are currently underway, he could be looking at an endgame even more perilous than the one confronted by Nixon.

Trump, Mayer notes,

has famously survived one impeachment, two divorces, six bankruptcies, twenty-six accusations of sexual misconduct, and an estimated four thousand lawsuits. Few people have evaded consequences more cunningly. That run of good luck may well end, perhaps brutally, if he loses to Joe Biden.

It is no wonder then that, as David H. Gans of the Constitutional Accountability Center, writes in Slate,

The Trump campaign is actively considering the possibility of disregarding the certified election counts and turning to state legislatures to appoint a slate of pro-Trump electors without gubernatorial signoff in battleground states, such as Pennsylvania and Michigan, where Republicans remain in legislative control.

Neal Katyal and Joshua Geltzer, law professors at Georgetown, contend that the Constitution does not authorize such unilateral decision-making by state legislatures. But, as Katyal and Geltzer wrote in the Washington Post on Oct. 30, this controversial interpretation of the Constitution is gaining currency on the right:

A novel legal theory is surging among conservative judges and justices. The notion is that, under the Constitution, only state legislatures — without any input from state executives or courts — may set the rules for presidential elections.

In the past few weeks, as the election approached, Katyal and Geltzer write, “the focus on two words in that constitutional text — ‘the Legislature’ Article II, Section 1 — has been taken to fanatical extremes,” with members of the conservative wing of the Supreme Court indicating their receptivity to this disputed view.

Trump is acutely aware of the power of the Supreme Court.

In September, as he chose Amy Coney Barrett to fill the opening resulting from the death of Ruth Bader Ginsburg, Trump said that he believed the election “will end up in the Supreme Court.” Because of that, he continued, “I think it’s very important that we have nine justices.”

Trump is banking on the Supreme Court to be the ultimate arbiter should he attempt to overturn unfavorable election results in states with Republican legislatures, in order to gain an Electoral College victory. Presumably, Trump is counting on Republican willingness to subvert longstanding election norms, a willingness that would derive from what Larry Bartels has described as racial and ethnic antagonism.

Over the next 24 to 36 hours, we will learn whether Trump goes beyond rhetoric to formally initiate an assault on election results, the infrastructure underpinning American democracy.

That would go beyond politics as normal, approaching electoral Armageddon. No one knows to what lengths Trump will go — we can only see that all the pieces are in place for a lengthy, vicious struggle.

The country has never before had a president in the Trump mold and the endgame scenarios are many, including the possibility that Trump would try to bargain a frictionless departure from the White House in return for a pass on state criminal liabilities, on the assumption that he takes care of any potential federal liability by pardoning himself, itself a questionable move. In the end, if Biden wins big, perhaps Trump’s evident fear of humiliation will play a role in the transition. After all, he won’t want to be frog-marched out of the White House.

More from Voting Rights and Democracy

Voting Rights and Democracy
May 24, 2024

Voting Rights Experts Find Old Ideas in New Racial Gerrymandering Standard

Courthouse News Service
WASHINGTON (CN) — Seven years ago, Justice Samuel Alito lamented his colleagues' refusal to create...
By: David H. Gans, Kelsey Reichmann
Voting Rights and Democracy
May 24, 2024

This Supreme Court Term Was All About Undoing Democracy

Mother Jones
In the coming weeks, the Supreme Court will wrap up a consequential term and issue decisions...
By: David H. Gans, Miriam Becker-Cohen, Pema Levy
Voting Rights and Democracy
May 23, 2024

RELEASE: Supreme Court’s Conservative Majority Upholds Racial Gerrymander and Strikes a Severe Blow to Our Constitution’s Promise of a Multiracial Democracy

WASHINGTON, DC – Following today’s decision at the Supreme Court in Alexander v. The South...
By: David H. Gans
Voting Rights and Democracy
May 13, 2024

Constitutional questions for Voting Rights Act abound in Louisiana map fight

Courthouse News Service
After a yearslong fight to keep a map found to have diluted the power of...
By: David H. Gans, Kelsey Reichmann
Voting Rights and Democracy
U.S. Court of Appeals for the Eleventh Circuit

Alpha Phi Alpha Fraternity, Inc. v. Secretary, State of Georgia

In Alpha Phi Alpha Fraternity, Inc. v. Secretary, State of Georgia and two consolidated cases, the United States Court of Appeals for the Eleventh Circuit is considering whether the Voting Rights Act’s prohibition on vote...
Voting Rights and Democracy
March 26, 2024

The Airtight Case Against Texas’ Mail-In Voting Age Requirements

In Texas and a number of other states, voters age 65 and older have the...
By: David H. Gans