Neil Buchanan: Dems’ Top Priority Must Be to Make Elections Fair

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Donald and Melania Trump vote in New York, November 8. Michael Dorf writes that Republicans made a fateful decision in the 1990s that they would fight against the tides of demography and history. Their actual policy proposals have long been unpopular, and over time their views have only become even less appealing to most Americans. In open elections, Republicans would be dead in the water. Carlo Allegri/reuters

This article first appeared on the Dorf on Law site.

When is it good strategy to let everyone, including your opponents, know exactly what you are thinking? For the Democratic Party, that time is now, and what they should be thinking is that their priority—not merely their top priority, but their only priority—is to protect and restore free and fair elections.

The basic idea of democracy is that the voters get to choose their leaders. Unfortunately, the Republicans have long known that they cannot continue to compete in elections in which the people vote and the rules are fair. Therefore, they have decided to turn ours into a fake democracy in which one party gets to choose its voters.

12_11_Trump_Ballot_01 Donald and Melania Trump vote in New York, November 8. Michael Dorf writes that Republicans made a fateful decision in the 1990s that they would fight against the tides of demography and history. Their actual policy proposals have long been unpopular, and over time their views have only become even less appealing to most Americans. In open elections, Republicans would be dead in the water. Carlo Allegri/reuters

Although this has been going on for decades, the Republicans made a fateful decision in the 1990s that they would fight against the tides of demography and history. Their actual policy proposals have long been unpopular, and over time their views have only become even less appealing to most Americans. In open elections, Republicans would be dead in the water.

Rather than adapting to a changing populace, Republicans decided to change the rules of democracy to exclude as many Democratic-leaning voters as they could, either by preventing them from voting outright or by redistricting them into irrelevance. I am referring to both of these issues—voter suppression and gerrymandering—when I describe the Republicans' strategy as an attack on voters' rights.

Related: Neil Buchanan: Who Can Prevent a Trump Tyranny?

Donald Trump is merely the latest Republican to mock the idea that norms of behavior matter. Texas Republicans in 2003 decided that they could redistrict whenever they wanted, not just after a census.

That was essential to Republicans, because Texas had long had a viable two-party system and continues to be on the leading edge of demographic trends. For Republicans to maintain power, they needed to make voting in Texas an empty exercise. It worked.

The Republicans' post-2012 "autopsy" was a moment in which some of their leaders tried to point to a non-white-supremacist approach to winning future elections, but the party's primary voters quickly made a mockery of the idea that the Republican Party could reach out to anyone but its angry, monochromatic base. Instead, the party engaged in intensified efforts to win elections by rigging them.

Trump merely put the hypocritical cherry on top by claiming that the game was actually rigged against him. That should have surprised no one, because if Trump is good at anything, it is at projecting his pathologies onto others. (Calling Hillary Clinton a bigot was only one of many jaw-dropping moments of the campaign. Calling her nasty was another.)

Strangely, some people have blamed the Democrats for weakness during this time, saying that they were not trying hard enough to win elections and were ignoring House and state-level races. Talk about blaming the victim!

I doubt that there is anyone who cares about the Democrats' fortunes who is not aware that the party has been all but permanently locked out of power in many places, not by voters' preferences but by the combination of voter suppression and gerrymandering.

The question is how to respond. The Democrats' strategy has, until now, clearly been to try to win where the rules still allowed them to win. Yes, they could actually be viable in a lot more places under different rules, but putting resources into doomed campaigns under current unfair rules is not the smartest way to respond.

Now, however, Democrats have no other choice but to fight to change those rules. With Trump and the Republicans in power, the notion of contestable elections could soon become a sad joke.

Yes, Trump might overreach, or the economy might tank, or a major environmental disaster might change enough swing voters' views of Trump and the Republicans. If the Democrats are to have a future, however, they have to focus exclusively on making elections small-d democratic.

And when I say exclusively, I mean that quite literally. In a recent column, I described how the Democrats could use their limited power (mostly in the Senate) to extract some concessions from Trump that might do some good. My counter-intuitive argument was that Democrats should be willing to resist even policy proposals that they otherwise support unless they win restoration of voters' rights in return.

The particular policy that I was discussing in that column is infrastructure spending. Because rebuilding roads, bridges, water systems (see Flint), airports, schools and so on has long been a priority for Democrats, it was odd to see Trump actually run to Clinton's left on that issue during the campaign.

The catch was that opposition by Trump's party is the reason that we did not respond to the Great Recession in 2009, when workers were readily available and borrowing was especially easy, by engaging in a surge of much-needed infrastructure spending. Republicans began shouting things about "shovel-readiness" and united in opposition to any serious infrastructure rebuilding program.

Because much of that opposition was driven by hatred of all things Obama, there is a chance that enough Republicans will become born-again spenders to pass Trump's big infrastructure plan. But what if enough Republicans truly are willing to stand by their anti-government principles and let all of those construction jobs slip through their fingers?

My argument was (and is) that if Trump needs Democrats to push his infrastructure spending plans over the top, Democrats should not reflexively say, "Heck yeah! We've been saying this for years. It's good to find some common ground with you."

That is bad politics under any set of voting rules, because voters will reward the president's party for the ensuing prosperity, even if it was the opposition party that supplied the votes in Congress. (Do you really trust Trump to give credit where credit is due?)

But this brings us to the broader lesson: Not just on infrastructure spending, but on any issue, Democrats must condition their support and cooperation on changes in voting rights. If Trump were to offer concessions on any other issue—reproductive rights, environmental policy, the minimum wage, or anything else—Democrats must not be tempted to think that they are getting a good deal.

The only good deal for Democrats is a deal that makes elections free and fair. If they continue to be squeezed out of power by ever-tightening rules diminishing voting rights, they will not be able to prevent future Republican congresses and presidents—even assuming that there is ever again a president not named Trump—from taking back whatever baubles the Democrats might win in any short-term negotiations.

The question that I asked at the beginning of this column implied, however, that there might be a disadvantage to revealing one's strategy to the other side. Even worse, it might be foolish to let an opponent know that there is really only one thing that matters. The parable of Br'er Rabbit's wily misdirection ("Do anything you want, but don't throw me into that briar patch!") is timeless for a reason.

But who is kidding whom? Trump and the Republicans, even in full post-election gloat, are pushing stronger than ever the idea that there was massive voter fraud. They know what matters, whether Democrats admit it or not.

This is really a turning point in history. The Republicans know that if elections were free and fair, they could only compete by changing themselves in ways that they find unacceptable. The Democrats must be equally realistic.

Even if they make the mistake of returning to a Republican-lite approach to politics (by, for example, blaming 2016 on "identity politics"), Democrats will not win as long as voter suppression and gerrymandering make it possible for unpopular candidates with unpopular views to win elections. The me-too approach would actually speed the Democrats' decline, but even sticking to popular policy proposals will not be enough.

The Democrats have one big advantage in this fight. If they stand for free and fair elections, they can say, "We are willing to win or lose elections fair and square, depending on whether the people support us. Why aren't Republicans willing to do the same?"

Republicans will be left to hype non-existent voter fraud and explain why they deserve a majority of seats in the House even when they receive fewer votes—and even when the counted votes necessarily exclude the voters who were wrongly purged from electoral rolls, or who were intimidated by "poll watchers," and so on.

This is not to say that they Republicans will not be willing to take up the task. They have a full-blown industry of people whose job it is to whip up fears of minority voters who are stealing elections from Republicans. The president-elect himself spent months warning about "certain areas" where this would supposedly happen.

But when we reach a turning point like this one, everything can suddenly become very clear. If the Democrats want to have even the ghost of a chance to make the United States a genuine constitutional democracy again, they have to restore voting rights in every way possible. Everything else is just a distraction on the way to oblivion.

Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute at Monash University in Melbourne, Australia. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.

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