Last year, when the Pennsylvania Supreme Court struck down a Republican gerrymandering initiative, conservative legislators attempted to impeach the justices. And back in North Carolina, Republican legislators used a surprise vote last week, on Sept. 11, to ram through an override of Gov. Roy Cooper’s budget veto — while most Democrats had been told no vote would be held. This is classic “constitutional hardball,” behavior that, while technically legal, uses the letter of the law to subvert its spirit.
Constitutional hardball has accelerated under the Trump administration. President Trump’s declaration of a “national emergency” to divert public money toward a border wall — openly flouting Congress, which voted against building a wall — is a clear example. And the Supreme Court’s conservative majority, manufactured by an earlier act of hardball, may uphold the constitutionality of the president’s autocratic behavior.
Constitutional hardball can damage and even destroy a democracy. Democratic institutions function only when power is exercised with restraint.
When parties abandon the spirit of the law and seek to win by any means necessary, politics often descends into institutional warfare. Governments in Hungary and Turkey have used court packing and other “legal” maneuvers to lock in power and ensure that subsequent abuse is ruled “constitutional.” And when one party engages in constitutional hardball, its rivals often feel compelled to respond in a tit-for-tat fashion, triggering an escalating conflict that is difficult to undo.
As the collapse of democracy in Germany and Spain in the 1930s and Chile in the 1970s makes clear, these escalating conflicts can end in tragedy.
Why is the Republican Party playing dirty? Republican leaders are not driven by an intrinsic or ideological contempt for democracy. They are driven by fear.
Democracy requires that parties know how to lose.
Politicians who fail to win elections must be willing to accept defeat, go home, and get ready to play again the next day. This norm of gracious losing is essential to a healthy democracy.
But for parties to accept losing, two conditions must hold. First, they must feel secure that losing today will not bring ruinous consequences; and second, they must believe they have a reasonable chance of winning again in the future.
When party leaders fear that they cannot win future elections, or that defeat poses an existential threat to themselves or their constituents, the stakes rise. Their time horizons shorten.
They throw tomorrow to the wind and seek to win at any cost today. In short, desperation leads politicians to play dirty.
Take German conservatives before World War I. They were haunted by the prospect of extending equal voting rights to the working class. They viewed equal (male) suffrage as a menace not only to their own electoral prospects but also to the survival of the aristocratic order. One Conservative leader called full and equal suffrage an “attack on the laws of civilization.” So German conservatives played dirty, engaging in rampant election manipulation and outright repression in the late 19th and early 20th centuries.
In the United States, Southern Democrats reacted in a similar manner to the Reconstruction-era enfranchisement of African-Americans. Mandated by the 15th Amendment, which was ratified in 1870, black suffrage not only imperiled Southern Democrats’ political dominance but also challenged longstanding patterns of white supremacy. Since African-Americans represented a majority or near majority in many of the post-Confederate states, Southern Democrats viewed their enfranchisement as an existential threat. So they, too, played dirty.
Between 1885 and 1908, all 11 post-Confederate states passed laws establishing poll taxes, literacy tests, property and residency requirements and other measures aimed at stripping African-Americans of their voting rights — and locking in Democratic Party dominance. In Tennessee, where the 1889 Dortch Law would disenfranchise illiterate black voters, one newspaper editorialized, “Give us the Dortch bill or we perish.” These measures, building on a monstrous campaign of anti-black violence, did precisely what they were intended to do: Black turnout in the South
fell to 2 percent in 1912 from 61 percent in 1880. Unwilling to lose, Southern Democrats stripped the right to vote from millions of people, ushering in nearly a century of authoritarian rule in the South.
Republicans appear to be in the grip of a similar panic today. Their medium-term electoral prospects are dim. For one, they remain an overwhelmingly white Christian party in an increasingly diverse society. As a share of the American electorate, white Christians declined from 73 percent in 1992 to 57 percent in 2012 and
may be below 50 percent by 2024. Republicans also face a generational challenge: Younger voters are
deserting them.
In 2018, 18- to 29-year-olds voted for Democrats by more than 2 to 1, and 30-somethings voted nearly 60 percent for Democrats.
Demography is not destiny, but as California Republicans have discovered, it often punishes parties that fail to adapt to changing societies. The growing diversity of the American electorate is making it harder for the Republican Party to win national majorities.
Republicans have won the popular vote in presidential elections just once in the last 30 years. Donald Trump captured this Republican pessimism well when he
told the Christian Broadcasting Network in 2016, “
I think this is the last election the Republicans have a chance of winning because you are going to have people flowing across the border.”
“If we don’t win this election,” Mr. Trump added, “you’ll never see another Republican.”
The problem runs deeper than electoral math, however.
Much of the Republican base views defeat as catastrophic. White Christians are losing more than an electoral majority; their once-dominant status in American society is eroding. Half a century ago, white Protestant men occupied nearly all our country’s high-status positions: They made up nearly all the elected officials, business leaders and media figures. Those days are over, but the loss of a group’s social status can feel deeply threatening. Many rank-and-file
Republicans believe that the country they grew up in is being taken away from them. Slogans like “take our country back” and “make America great again” reflect this sense of peril.
So like the old Southern Democrats, modern-day
Republicans have responded to darkening electoral horizons and rank-and-file perceptions of existential threat with a win-at-any-cost mentality. Most reminiscent of the Jim Crow South are Republican efforts to tilt the electoral playing field. Since 2010,
a dozen Republican-led states have adopted new laws making it more difficult to register or vote.
Republican state and local governments have closed polling places in predominantly African-American neighborhoods, purged voter rolls and created new obstacles to registration and voting.
In Georgia, a 2017 “exact match law” allowed authorities to throw out voter registration forms whose information did not “exactly match” existing records. Brian Kemp, who was simultaneously Georgia’s secretary of state and the 2018 Republican candidate for governor, tried to use the law to invalidate tens of thousands of registration forms, many of which were from African-Americans. In Tennessee, Republicans recently passed chilling legislation allowing criminal charges to be levied against voter registration groups that submit incomplete forms or miss deadlines. And in Texas this year, Republicans attempted to purge the voter rolls of nearly 100,000 Latinos.
The Trump administration’s effort to include a citizenship question in the census to facilitate gerrymandering schemes that would, in the words of one party strategist, be “advantageous to Republicans and non-Hispanic whites,” fits the broader pattern. Although these abuses are certainly less egregious than those committed by post-bellum Southern Democrats, the underlying logic is similar: Parties representing fearful, declining majorities turn, in desperation, to minority rule.
The only way out of this situation is for the Republican Party to become more diverse.
A stunning 90 percent of House Republicans are white men, even though white men are a third of the electorate. Only when Republicans can compete seriously for younger, urban and nonwhite voters will their fear of losing — and of a multiracial America — subside.
Such a transformation is less far-fetched than it may appear right now; indeed, the Republican National Committee recommended it in 2013. But parties only change when their strategies bring costly defeat. So Republicans must fail — badly — at the polls.
American democracy faces a Catch-22:
Republicans won’t abandon their white identity bunker strategy until they lose, but at the same time that strategy has made them so averse to losing they are willing to bend the rules to avoid this fate. There is no easy exit. Republican leaders must either stand up to their base and broaden their appeal or they must suffer an electoral thrashing so severe that they are compelled to do so.
Liberal democracy has historically required at least two competing parties committed to playing the democratic game, including one that typically represents conservative interests. But the commitment of America’s conservative party to this system is wavering, threatening our political system as a whole. Until Republicans learn to compete fairly in a diverse society, our democratic institutions will be imperiled.
