Forbearance, or lack thereof
by Tom Sullivan
The confidence Americans place in their being exceptional has proven over the last few years to be a hollow boast. Not that it wasn’t all along. And not that they have given up on boasting. They elected a hollow president whose career has been one long, empty boast.
Steven Levitsky and Daniel Ziblatt, the authors of “How Democracies Die,” examine just how fragile our is for the New York Times. Two norms undergird an American system that endured through crises for nearly two and a half centuries:
To function well, democratic constitutions must be reinforced by two basic norms, or unwritten rules. The first is mutual toleration, according to which politicians accept their opponents as legitimate. When mutual toleration exists, we recognize that our partisan rivals are loyal citizens who love our country just as we do.
The second norm is forbearance, or self-restraint in the exercise of power. Forbearance is the act of not exercising a legal right. In politics, it means not deploying one’s institutional prerogatives to the hilt, even if it’s legal to do so.
There’s the rub. We have watched politicians and parties push the limits of legal and stretched the norms by finding the line, stepping over it, and daring adversaries (or the courts) to push them back. Often the assaults come on multiple fronts at once. Where there is no pushback or an insufficiently vigorous one, a new norm takes root. A legislative Overton’s Window.
Levitsky and Ziblatt continue:
America’s constitutional system thus requires forbearance. If our leaders deploy their legal prerogatives without restraint, it could bring severe dysfunction, and even constitutional crisis. Mark Tushnet, a law professor at Harvard, calls such behavior — exploiting the letter of the law to undermine its spirit — “constitutional hardball.”
Look at any failing democracy and you will find constitutional hardball. In postwar Argentina, when President Juan Perón encountered Supreme Court opposition, his congressional allies impeached three of five justices on grounds of “malfeasance” and replaced them with loyalists. In 2004, when Venezuela’s high court proved too independent, congressional allies of President Hugo Chávez added 12 seats to the 20-member court and filled them with loyalists. Both Perón’s and Chávez’s court-packing schemes were legal, but they nevertheless destroyed judicial independence.
We may not be on the brink of another civil war, they write, but we face a period more polarized than any in the last hundred years:
This is not a traditional liberal-conservative divide. People don’t fear and loathe one another over taxes or health care. As political scientists have shown, the roots of today’s polarization are racial and cultural. Whereas 50 years ago both parties were overwhelmingly white and equally religious, advances in civil rights, decades of immigration and the migration of religious conservatives to the Republican Party have given rise to two fundamentally different parties: one that is ethnically diverse and increasingly secular and one that is overwhelmingly white and predominantly Christian.
White Christians are not just any group: They are a once-dominant majority in decline. When a dominant group’s social status is threatened, racial and cultural differences can be perceived as existential and irreconcilable. The resulting polarization preceded (indeed, made possible) the Trump presidency, and it is likely to persist after it.
The extreme polarization brought on by those tensions has led to the abandonment of mutual toleration and the embrace of tribal politics that vilifies the out group while forgiving a multitude of sins within one’s own tribe.
In such a setting, politicians are tempted to leverage all their powers to win at all costs, norms be damned, principles, be damned, morals be damned. Witness Tony Perkins, leader of the evangelical Family Research Council last week. In response to allegations that Donald Trump had an affair with a porn star four months after the birth of his son Barron, Perkins responded, “We kind of gave him — ‘All right, you get a mulligan. You get a do-over here.’”
And the clown show of White House spokespersons and congressional shills standing before national cameras and lying through their teeth that up is down, black is white, truths are lies, and wrong is right.
But that “once-dominant majority in decline” exists outside the Beltway as well, as does “constitutional hardball.” As Digby pointed out yesterday, Wisconsin Governor Scott Walker was unnerved by Democrat Patty Schachtner winning a state Senate seat by 11 points in special election in a district that voted for Trump 55-38. Walker has responded by refusing to call any more special elections for vacancies in the State Assembly and the State Senate until January 2019. This, piled atop his record for passing one of the most egregious vote-suppressing photo ID laws in the country. Wisconsin, second in the nation for voter turnout in 2008 and 2012, saw its lowest turnout since 2000 in 2016.
Ari Berman wrote last fall:
After the election, registered voters in Milwaukee County and Madison’s Dane County were surveyed about why they didn’t cast a ballot. Eleven percent cited the voter ID law and said they didn’t have an acceptable ID; of those, more than half said the law was the “main reason” they didn’t vote. According to the study’s author, University of Wisconsin-Madison political scientist Kenneth Mayer, that finding implies that between 12,000 and 23,000 registered voters in Madison and Milwaukee—and as many as 45,000 statewide—were deterred from voting by the ID law. “We have hard evidence there were tens of thousands of people who were unable to vote because of the voter ID law,” he says.
Trump’s margin of victory in Wisconsin was roughly 23,000 votes.
It is a wonder the Republican majority in North Carolina’s legislature finds any time to legislate. Since gaining control in 2010, leading Republicans have spent years in state and federal courts defending legislation passed legally that casts established norms to the wind in pursuit of a few more years of GOP control.
Much of the national focus has been on gerrymandering performed “with almost surgical precision.” Courts have ruled congressional as well as state legislative maps unconstitutional. But Republicans in North Carolina, as in Wisconsin, have attacked ideological foes on a number of fronts, both in regular session and in a string of special sessions called to undo norms standing in the way of complete control. Those legal moves too have led them to court and a growing string of defeats:
On Friday, the North Carolina Supreme Court struck down a Republican-sponsored measure stripping Democratic Gov. Roy Cooper of his ability to regulate the state’s elections. The 4–3 decision preserves Cooper’s control of the State Board of Elections, ensuring he will be able to restore voting rights throughout North Carolina in time for the 2018 election.
Following Cooper’s election in November 2016, the GOP-dominated General Assembly passed a series of bills weakening the governorship and concentrating power in the legislature. The centerpiece of this effort was a radical overhaul of the board of elections. Previously, the board had five members, with three from the governor’s party. Under former Republican Gov. Pat McCrory, the body authorized a dramatic rollback of early voting and a reduction in polling places, particularly in minority-heavy communities. Cooper planned to reverse these policies. But before he could, the legislature restructured the board, creating a new group with eight appointees, four Democratic and four Republican. The practical effect would be near-constant gridlock.
But they’ve engineered bipartisan gridlock, so it’s all good.
Update:
The estimable DocDawg of Insight-Us breaks down in detail how the NCGOP’s Election Board scheme was supposed to have worked to suppress the vote.
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