Voter Suppression

One of the most important markers of a democracy is free elections that express the will of the people.  Voter suppression seriously threatens that freedom of expression.  When an entire political party practices voter suppression, democracy is seriously ill.  When the Supreme Court refuses to move against it decisively and the population is also apathetic, democracy is in deep trouble. 

When an individual or a small group intentionally interferes with voting, it is considered a crime; when performed by a political party, it is considered routine political “hardball.” 

Not since Jim Crow has the country experienced the current level of voter suppression, and we are doing little about it.  In the twelve months before the 2018 election, ninety-nine bills designed to diminish voter access were introduced in thirty-one state legislatures.  Most Americans now rightly consider the voter suppression of Jim Crow a disgrace.  But it’s happening again, and we don’t seem ashamed. 

Voter suppression is now multi-pronged.  Let me count the ways.**

• Voter-ID laws are now common, and more are in the pipeline.  Although the Supreme Court has declared strict photo-ID requirements unconstitutional, many states are finding work-arounds.  They request a photo ID, but if the voter can adequately explain why they don’t have one, there are some, often-complicated, alternatives.  For instance, some states allow provisional ballots.  This doesn’t prevent voting but severely discourages it by requiring additional visits or demanding other forms of identification.  According to a Harvard study, for instance,

  the expenses for documentation, travel, and waiting time [for obtaining voter identification cards] are significant—especially for minority group and low-income voters—typically ranging from about $75 to $175.

  After Jim Crow was dismantled, voter suppression by race was declared unconstitutional.  Left intact, however, has been voter suppression by political affiliation. 
  Voter ID laws favor Republicans exclusively: poor people (the preponderance of whom vote Democratic) are less likely to possess a picture ID.  Although the Supreme Court has struck down some of these laws, others have been found constitutional, an extraordinary violation of the principle of one-person-one-vote.

• Since the 2010 elections, twenty-five states have limited the time for voter registration or early voting.  There are also restrictions on casting absentee ballots.
• Several states, for example, Montana and Arizona, have prohibited or curbed civic groups from helping people vote with absentee ballots by collecting and delivering their completed ballots.  The results have sometimes been bizarre: just before the 2018 election, for instance, a group of African-American senior citizens was ordered “off a bus taking them to an early-voting site, on the grounds that the transportation, which had been organized by the nonpartisan group Black Voters Matter, was a ‘political activity.’”
• States have made it harder to restore voting rights to felons, even if they have served out their complete sentences.  If they had been allowed to vote in Florida in the 2000 presidential election, Albert Gore would have easily won the state and become the president instead of George W Bush.  In the 2018 election, 65% of Florida voters in a state-wide referendum backed removing all restrictions on convicted felons who had completed their sentence.  In a clear violation of that referendum, the Republican legislature has passed regulations to limit the impact of the ballot initiative.
• A number of states, for instance Georgia, Arizona, Louisiana and Texas have removed polling places from minority areas, requiring more travel to vote, .
• A number of states have purged voter rolls without notifying the voters purged to give them a chance to object.  In Georgia an “exact-match law” was used to suspend fifty-three thousand voter-registration applications for infractions as minor as a hyphen missing from a surname.
• Gerrymandering, of course, is considered almost routine but is another form of voter suppression.  Gerrymandering is certainly practiced by both parties, for instance,   Maryland’s Democratic-Party-gerrymandered state is a bizarre map of serpentine districts.  Nevertheless, since Republicans control the majority of US statehouses, gerrymandering is far more common among Republican-controlled states. 

We have become so used to these forms of suppression that we hardly notice them anymore.  The Supreme Court’s record in recognizing and limiting voter suppression has been spotty at best.   

Donald Trump is not the only force pushing us toward authoritarianism.  Voter suppression is also an essential tool that long predates this president.  We must at least recognize it for what it is.

David Hilfiker

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** Much of the following information comes from the non-partisan but progressive Brennan Center for Justice.

President Trump and Markers of Authoritarianism

I have previously mentioned the importance of the book How Democracies Die by Daniel Ziblatt and Stephen Levitsky.  The authors are professors of European history and South American history, respectively.  They point out that in the last seventy years, authoritarian governments have mostly come to power not through sudden violent coups but by legal means that gradually restrict democracy.  Much of the following is taken from that book.

Markers of authoritarianism

In the course of their research, the authors have noted four markers of a prospective authoritarian leader, whether as a candidate or as elected head of state. 

• The leaders have a weak commitment to democracy and the Constitution.
• Prospective authoritarians describe political opponents as illegitimate or harmful to the country, if not treasonous.
• They tolerate and even encourage violence among their supporters.
• They have a readiness to curtail civil liberties of opponents, including the media, whom they characterize as “the enemy.”

Only one president in the 20th or 21st century, Richard Nixon, has violated even one of these norms (willingness to curtail the press).  President Trump clearly violated all four during his campaign and has continued as president.  We could call him a “serial norm-breaker.”  We should have seen him coming.

Does President Trump reject the Constitution or express a willingness to violate it? 

• President Trump has many times cast doubt on the electoral process: as a candidate, he cautioned his supporters that the elections have been “rigged” and refused to commit to accepting the results of the election.  As president, he has maintained the lie that “over three million” undocumented aliens voted in the 2016 election.
• The president has referred to the federal judges who blocked his travel ban as “so-called judges.”  In the last few weeks, without taking the usual course of appealing the decision, he has simply refused to obey an explicit court order to release certain documents.
• The president has said he will refuse to turn over any documents requested by House investigative committees.  Constitutionally, a president can refuse to turn over only very specific documents of a certain kind and cannot make blanket refusal.

Does the President deny the legitimacy of political opponents?

• Before his candidacy, Trump was the major supporter of the “birther movement,” maintaining that Barack Obama had been born in Kenya and was therefore not a legitimate presidential candidate.
• The president has accused the Democrats of treason.  
• Even after he was elected, Trump has led his supporters in the chant, “lock her [Hillary Clinton] up.”

Has the President tolerated or encouraged violence among his supporters (The following have all been confirmed by the reliable Internet fact-checker Snopes.)

• He has incited his supporters at rallies to violence toward protesters.
• He himself has said of a protester at his rally, “I’d like to punch him in the face.”
• During an alt-right march, a right-wing demonstrator intentionally drove an automobile into a group of counter-protesters, killing one.  President Trump suggested that “there were good people on both sides.”
• At an Iowa rally, Trump said, “If you see somebody getting ready to throw a tomato, knock the crap out of them would ya?  Seriously.  Just knock the hell out of them.”
• “I love the old days.  You know what they use to do to guys like that [a protester] when they were in a place like this?  They’d be carried out on a stretcher, folks.  It’s true.…  I’d like to punch him in the face, I’ll tell you.”

Has the President shown a willingness to abridge civil liberties, especially of the press?

• The President has threatened to change the libel laws so that the government could sue media for “fake news.”  (He has no authority to change those laws.)
• After a line of questioning he objected to, the President, in an unprecedented action, suspended the press credentials of CNN reporter Jim Acosta, denying him access to the White House.
• Trump’s threatened violence against protesters has been a direct denial of the First Amendment’s freedom of speech.

It’s true that in none of the above has the president has done anything illegal – although he may have encouraged others to illegality.  What the president has done is to break the norms of acceptable political behavior over and over again.  It’s also important to recognize that many of the above have been called “just talk” and are not actions.  As Levitsky and Ziblatt point out, however, that is less important than it looks.  The autocrats they studied also began with “just talk.”

At this point in our democracy, norm-breaking is more dangerous than outright illegality.  Illegal obstruction of justice, for instance, is a crime and will, at least, be called out, if not eventually punished.  Because of the probable consequences, it’s unlikely, however, to lead to similar illegal action by future presidents. But norm-breaking has no legal consequences.  Rather, it lowers the bar on what is acceptable and normalizes the behavior, encouraging more in the future.

Since President Trump destroys norms almost daily, we lose track of what we’re losing, and the damage is done before we even know it. 

Can we not already, however, at least mourn the loss to our democracy?

Refusing a Judge's Orders Without an Appeal

For several years Washington Post opinion writer Jennifer Rubin has been relentless in her pursuit of President Trump’s danger to the democracy.  Her recent column, “If the Administration Defied a Court Order, All Bets Are Off,” examines the Administration’s refusal to provide court-ordered documents; she suggests that Trump has crossed a new line in a presidency filled with red lines.

Quoting an article from the Post, she writes that despite a judge’s order,

 [f]ederal prosecutors on Friday declined to make public transcripts of recorded conversations between Michael Flynn and Russia’s ambassador to the United States in December 2016.

Such a refusal by the Trump Administration is not unusual; indeed, it has had a recent “wholesale refusal” of congressional subpoenas.  What is unusual is that government lawyers did not ask the judge to stay (suspend the enforcement of) his ruling nor did they even appeal the judge’s order to a higher court; rather they simply refused to provide the transcripts.  Rubin quotes former prosecutor Mimi Rocah:

Normally when prosecutors don’t want to make something public for national security reasons, etc., they file a document under seal with the judge explaining that reasoning and requesting relief from the presumption that things should be made public…. The fact that the government didn’t do that here is puzzling. Instead, they took a very unusual tact [sic] of refusing the judge’s order publicly, which suggests that they didn’t think the judge would go along with keeping the material under seal.

 The judge in the case, writes Rubin, is known for his toughness, so it’s unlikely that the Administration will succeed in its stonewalling. 

Regardless of the judge’s response and the ultimate resolution of the issue, it’s important to recognize what the Administration is trying to do: refuse a legitimate court order without the usual legal recourse to negotiation or appeal.

The loss of democracy often occurs in small steps.  Presumably the Administration will be called out and required to produce the documents the judge has ordered.  Presumably they will eventually provide the documents.  Nevertheless, for the time being the Trump Administration has defied a legitimate court order without taking the proper legal steps to justify itself.  In doing so, the Administration has set up a confrontation between the executive and the judicial branches of government.  Regardless of the eventual outcome, this is a “shot over the bow” in what is likely to be a long struggle with the courts.

Congressional Oversight II

Extreme Partisanship

My post of May 15, 2019, dealt with President Trump’s success in blocking Congress’s constitutionally required oversight of his administration.  It has only been the extreme partisanship of the political parties, however, that has allowed him that power. 


Since Newt Gingrich’s elevation to Speaker of the House of Representatives in 1994, an increasing polarization of Congress has meant that

a) there’s no overlap in the ideologies of the two parties.  Unlike previous eras, there are no Republicans more liberal than the most conservative Democrat and no Democrats more conservative than the most liberal Republican. 
b) the parties have increasingly demanded absolute loyalty of their members.  Unless there is either a special dispensation, bipartisan support, or a relatively unimportant bill, the pressure on the individual members to vote the party line is almost insurmountable.  While the Democrats have somewhat more ideological diversity than the Republicans, the Democrats nevertheless began following the Republican model and now demand almost the same loyalty. 

Approval by both Senate and the House of Representatives is necessary to pass bills into law.  Whenever different, highly partisan parties control the houses, therefore, the outcome has been a gridlocked Congress. 

The opposite problem stems from the fact that the Senate alone approves or disapproves of presidential Supreme Court nominations.  When the president and the Senate are of the same party, therefore, they can select extreme right- or left-wing judges without the cooperation of the other party. 

The most brazen example of radical partisanship occurred in 2016 after the death of Justice Antonin Scalia.  Within the hour, Senate Majority Leader Mitch McConnell had proclaimed that there would be no hearings on Scalia’s replacement (who would be nominated by then-President Obama) until after the 2016 presidential election, even though twelve months still remained in Obama’s term.  McConnell’s partisan decision was unique in American history. 

McConnell broke no law nor did he act unconstitutionally.  The Constitution says only that the Senate must give “advice and consent” to the president’s nominee: it gives no time limit.  What McConnell did break was a norm  that had existed since the founding of the country: the Senate had never previously blocked consideration of a presidential nomination. 

McConnell’s reversal of his “policy” this past week is as shameless as it is unsurprising.  He was asked, "Should a Supreme Court justice die next year, what will your position be on filling that spot?"  He announced, “Oh, we’d fill it.”  His spokesman explained that after Scalia’s death “the White House was controlled by a Democrat and the Senate by Republicans. This time, both are controlled by the GOP.”  This explains nothing and only reveals McConnell’s willingness to use his raw power to shatter a centuries-old norm that has allowed government to function even in the face of parties with diametrically opposed viewpoints and goals.

The refusal of the Republican Senate to acknowledge even the obvious instances of obstruction of justice described in the Mueller report is another confirmation of the extreme danger to which this level of partisanship subjects our country.  President Trump’s tenuous commitment to our democracy and the Constitution, his tolerance for violence, his attacks on the free press, and the demonization of political enemies are clear indication of an unfit president, yet his party rarely even criticizes him, much less acts against him.  Its partisanship has led the Republication Party to abdicate its constitutionally mandated oversight of the President.


Partisanship has not spared even the Supreme Court.  Chief Justice John Roberts made a rare Court rebuke of a president recently by contradicting Trump’s assertion that there were “Obama judges” deciding against him. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” said Roberts in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to … [give] equal right[s] to those appearing before them. That independent judiciary is something we should all be thankful for.”  Justice Roberts’s comments notwithstanding, we can’t ignore the large number of decisions that are 5-4 (or 4-5) along the party lines of the presidents who nominated them.  Furthermore, one has to go back to the Eisenhower Administration to find a president nominating a judge from a different political party.  This was not a problem when each president was nominating a moderate liberal or a moderate conservative, but when a president nominates and an extremely partisan Senate confirms an extremist Supreme Court judge, we tip toward a dangerously partisan court, too. 

A different kind of evidence of the Supreme Court’s partisanship is the disputed presidential election in 2000.  The 5-4 decision that brought George W Bush to the presidency was a technical decision about the disputed results of the election in Florida.  It was not a conservative-vs-liberal issue, so there was no reason that it should have been made along party lines.  But it was.  As much as we might want to believe Justice Roberts’s denial, we do have Democratic judges and Republican judges and have had for some time.  The new development is that President Trump, acting without restraints, is nominating extreme right-wing candidates.

Some of the framers of the Constitution foresaw the danger of political parties, but did nothing to prevent it.  Political parties developed immediately after Washington’s presidency and within a few years led to acrimony, demonization of the enemy, and almost fanatical polarization.  Similar polarization has occurred at several times in our history, most notably before the Civil War.


We now face another phase in our country’s history that threatens our republic.  A demagogue with little respect for our Constitution or democracy occupies the highest office of the land.  President Trump is running the country off the rails while the Republican Party hacks away at the track.  Unless Congress and the courts can see the danger, overcome their partisanship and act together to limit our president, we will move inexorably toward an autocracy.  Our democracy is in more trouble than at any time since the Civil War.  We are utterly dependent on the Republican Party to join with the Democrats to fulfill their constitutional responsibility of presidential oversight.

Why Can't the Democrats Pin Trump Down?

As President, Donald Trump has been uniquely successful in harnessing the weaknesses of American democracy to push aside challenges to his autocratic impulses.  Some of these weaknesses are inherent in the Constitution; others result from a diverse set of extra-constitutional limitations that hamstring potential responses.

Fortunately, the impact of these weaknesses has been mitigated by a well-established set of political and ethical norms to which politicians and political parties have unofficially adhered over the years.  Potential demagogues -- such as George Wallace or Joe McCarthy -- who have tried to sidestep these norms have so far been sidelined. 

Until now.  Trump’s willingness to break these norms -- such as threatening the press, demonizing his opponents, tacitly accepting violence in his supporters -- has given him enormous power.  He has been aided and abetted by a Republican Party that has ignored its constitutional responsibility to oversee the executive branch of government, which has vitiated the balance-of-powers essential to our government.  Because of the President’s heretofore unparalleled dominance of the mainstream media, the country has been unwilling (or unable) to recognize the extraordinary danger he poses to our democracy.

The questions for today’s post are:

• How did we get here?  
• Why have the Democrats, the media, and others been unable to respond effectively to the danger into which Trump is leading us? 

There are two rough categories that have prevented an adequate response: a) weaknesses inherent in the Constitution and b) extra-constitutional weaknesses within the structure of the country.

Inherent Constitutional Weaknesses

The American Constitution is 224 years old.  It was written when the population of the United States was 2.5 million (less than 1% of today’s population), and comprised only 13 states.  Despite the claims of originalists and textualists, the document should not be expected to respond adequately to today’s many challenges.

In many ways, the Constitution has been remarkably successful.  But there are assumptions written in to it and important holes in it that can cause problems in modern situations.  In addition, the Constitution has been dependent upon unwritten rules broadly accepted by politicians and political parties in order to bridge the gaps in the document itself.  We can no longer depend on a text written over two centuries ago (and remarkably resistant to amendment) to allow government to survive direct challenges.  Here are some of the weaknesses in the Constitution itself:

• As above, government requires a set of traditions and norms that depend upon politicians’ commitment to the good of the country rather than to self-interest.  When the president has little respect for constitutional norms and acts too far outside the bounds of ordinary prudence, the Constitution -- written by Founders who assumed good intentions and dedication to the spirit of its intent by any and all presidents -- may not be sufficient.

• After their experience with the English monarchy, the framers of the Constitution were intent on preventing a powerful executive, so they gave the president relatively few powers and then limited even those with the threat of impeachment. This may have been effective in 1787 when government was small and needed no strong executive to function.  But in the intervening years the executive branch has, of necessity, grown more and more powerful.  Cabinet departments—the Justice Department, the EPA, the Treasury Department the Commerce Department and all the others—are obviously necessary to run our large and complicated society, but they are all under presidential control, which gives the president constantly expanding power. 

• Some of the writers of the Constitution recognized the dangers of political parties.  George Washington, for instance, feared them because partisanship would follow and lead to a “spirit of revenge” in which party members would not govern for the good of the people, but for power.  He warned in his farewell address that

  the spirit of political party serves always to distract the public councils and enfeeble the public administration.  It agitates the community with ill-founded jealousies and false alarms [and] kindles the animosity of one part against another.

But even he could never have foreseen a two-party system that was as polarized as Congress is now.  This polarization has made it virtually impossible for Congress to limit a president if one of its two branches is from the same party as the president.  For instance, Republican failure to investigate obvious examples of Trump’s obstruction of justice renders the constitution’s balance-of-power provisions almost moot.  

• Finally, while the Framers gave the president very few explicit powers, they also did not much limit them.  This has resulted in presidents throughout history appropriating powers by fiat that were almost impossible for Congress then to challenge.  The need for a strong commander-in-chief, for instance, gave President Harry Truman the power to effectively declare war on North Korea without the constitutionally mandated congressional approval.  Every president since has similarly waged war without a congressional declaration.  As in other instances, Congress has simply been unwilling to confront this arrogation of power

Extra-Constitutional Weaknesses

Historical developments in our country are also challenges to democracy.

• For the first time in American history, we now have a national news source—Fox News—that claims itself “impartial” but is, for all practical purposes, a propaganda arm of Trump and the Republican Party,

performing a function similar to that of government-controlled media in increasingly authoritarian Poland and Hungary — stating untruths, spinning conspiracy theories, and diverting attention from the administration’s malfeasances. 

These untruths and conspiracy theories leave us without agreed-upon facts, meaning informed political debate and decision making are no longer possible.  It would be hard to exaggerate Fox’s profound effect on our democracy.

• The President is able to control political discussion because of his dominance in social media.  His multiple daily tweets, speeches, campaign rallies and other public appearances overwhelm the opposition simply by their sheer quantity.  The mainstream media must report each of the President’s tweets, whether they are significant or not.  (Trump’s recent take-over of the national Fourth of July celebration, for instance, may be important to us Washington area residents, but it is only national news as one more example of his almost daily egregious behavior.)  Even the media’s attempt to point out Trump’s lies or obfuscations has only played into Trump’s hands: Even negative publicity keeps him in the news.

• The President takes actions that are almost certainly unconstitutional (eg his multiple Muslim bans) but when he is slapped down by the courts, he shamelessly turns around and tries a variation again.  He even takes the opportunity to disparage the court system (or particular justices) for his defeat.  What is important is that Trump’s daily, apparently irrational onslaught leaves his opposition little space for more complex, rational responses.  It is much easier to throw lies or misleading facts into the ether than it is to counter them with rational argument.  The opposition is constantly playing catch-up.

• Historically, the legal process has developed to be slow and measured, in large part to provide enough time to discover the truth,   Appeals, however, can take months to years.  A president can easily delay the legal process almost indefinitely, allowing him to act so that the appeals are still unresolved until after their importance has waned.  It has occasionally possible to shortcut this process.  For example, Federal Court of Appeals Judge Amit Mehta has recently shortcut the President’s refusal to turn over certain accounting records.  Far more likely, however, are months of litigation.  And Trump has been willing to appeal court judgments over and over.  He and his businesses brought lawsuits over 3500 times before he became president.

• Republican Congresspeople know that their political fates lie in the hands of the extreme right because those are the ones to show up at the primary elections, thus dominating the selection of candidates.  Given Trump’s 80% popularity in the Republican Party and his dominance of the extreme right wing of the party, Trump can count on Republican support in the legislature for even his most outlandish actions.

• Despite the Mueller report’s documentation of ten instances of illegal obstruction of justice. Mueller’s decided not to prosecute** and Trump has used that to claim exoneration, which he repeats over and over and is supported by the Republican echo chamber.  He has, apparently quite effectively, been able to neutralize the impact of the report.  Once again, Trump’s shameless, repetitive lies leave the opposition gasping for breath.

These conditions and court decisions have all been available to other presidents throughout our history.  True, other presidents have occasionally used such power (for instance, as above, transforming limited military action into war without congressional declarations).  But Trump has used these gray-area powers to such an extraordinary degree he moves us much deeper into a true imperial presidency. 

This pattern has been used by demagogues throughout history.  Even the pronouncements Adolf Hitler first used to assume power were technically legal.  Turkey’s Erdogan and Hungary’s Orbán have used almost identical tactics to take power.

In recent weeks, as Trump has declared his blanket refusal respond to congressional subpoenas, the conflict between Trump and Congress has escalated.  Will the Democrats be able to pin Trump down?
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** Mueller believes it improper to his role to draw the conclusions about whether Trump should be prosecuted, but the implication is clear.