[EL] What makes a state a democracy?

Fri Jul 2 14:22:54 PDT 2021

If one googles “Democracy Without Elections,” one will find a significant literature, mostly from the political left, arguing not only that democracy is possible without elections, but that it is better. Personally, to be clear, I don’t subscribe to that view. But it’s advocates raise some interesting points. For starters, You could try David Van Reybrouck, Against Elections, with an introduction by Kofi Annan.

In Capitalism, Democracy, and Ralph’s Pretty Good Grocery, a book I highly recommend, John Mueller argues that democracy—by which he means elections largely along the standard of Western Europe and the Anglophone countries—is important, but perhaps less so than people think, to establishing a government that respects individual liberties, promotes prosperity, and is generally responsive to  popular needs and desires.

Brad Smith
Sent from my iPhone

On Jul 2, 2021, at 4:50 PM, sean at impactpolicymanagement.com wrote:

What makes a state a democracy? I’d argue (warning – layman’s, not an academic’s or philosopher’s or even particularly learned-person’s viewpoint ahead) at its core a democracy exists when the people of that state have and retain ultimate sovereignty (not God, not the King, not the Party, not even the Supreme Intelligence<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fmarvelcinematicuniverse.fandom.com%2fwiki%2fSupreme_Intelligence&c=E,1,x0RqG1LqK0da136okj1Qyw3Jjg7342dRkZss8XUeTSynrjAg6s5jM19FZBse0Vap_iL2GIjJgAQlCF_wFZBEviADeUU5VviA8CsBxVp9h2OndrI,&typo=1>) and the government is set up to be responsive and accountable to the people. But I’d prefer a liberal democracy, meaning the people are free to form their own judgements of what and how government should be and should not be doing and the people posses individual rights that the government is obliged to respect even when numerical pluralities or majorities would prefer not to respect them.

After that, it’s mostly details that can seem curious without any understanding of the cultural/historical/political/etc. factors that went into them and that make each nation unique. I suspect that most here would say that banning political parties is generally not something liberal democracies ought to be doing, but I also suspect most of us here would say “yeah, I get why Germany bans the Nazi Party, that’s fine.” Ireland’s Seanad (upper house of the legislature, but less powerful) includes seats selected by the graduates of the two major Irish universities (no, Notre Dame is not one of them). The Maine legislature has non-voting members representing several tribal governments (they can sponsor and co-sponsor bills and amendments, and I believe they can speak on the floor of the House as well). All of these “warts,” to say nothing of the fact that a plurality or majority of voters can’t just up and decide that they’ve had enough with Tucker Carlson or Rachel Maddow and get them removed from their media perches, seem to me to be fully consistent with the sort of liberal democracy that I favor. Obviously at a certain point these “warts” can become so significant that it truly is up for debate whether it even is a democracy, liberal or not, but I feel pretty confident that we are far, far from that point.

Sean

From: Stephanie F Singer <sfsinger at campaignscientific.com>
Sent: Friday, July 2, 2021 2:42 PM
To: Election Law Listserv <law-election at uci.edu>
Cc: sean at impactpolicymanagement.com
Subject: What makes a state a democracy?

Hope that putting a new subject line will meet the needs of folks who want to skip this thread and the folks who just expressed interest in the discussion. Here’s my offline response to Sean:

Granted the distinction between people and voters; granted the tension between representation of states and representation of individuals at the federal level; granted that no matter what system you use to pick winners from the preferences expressed by voters, there will be some winners that seem problematic to some people; what in your mind makes a state a democracy?  What does it mean for a state to be a democracy? I’m not an expert on Norway, but surely their political system has some warts. What are some criteria that might distinguish a dead dog from a dog with warts?

I’ll send you more off line.

On Jul 2, 2021, at 10:28 AM, <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:

OK, I’ll bite…

I’ve actually written a bit about this, and I think I’d say the short answer is that democracy is more than just majority rule. My apologies to supporters of the National Popular Vote compact but the context of my writings was in relation to it, but for the purposes of this question, let’s set aside that issue and just look at the topic of “what is democracy.”

Here’s an excerpt from one blog post that somewhat touches on the “one person, one vote”/majoritarian issue: https://saveourstates.com/blog/the-electoral-college-represents-people-national-popular-vote-doesnt<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fsaveourstates.com%2Fblog%2Fthe-electoral-college-represents-people-national-popular-vote-doesnt&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566808849%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=ADbSUtjfg8NpgeNAG4hHQJoRQ044uLeVnU5xAJd9is8%3D&reserved=0>
What struck me was the idea embedded in the NPV critique that only voters matter. That, suffice it to say, would be completely at odds with how our representative republic was set up. It is people who are supposed to be represented, as a casual glance at the U.S. Constitution can confirm. The first words of the Constitution are “We the People,” not “We the Voters,” and Congressional representatives are apportioned among the states according to the number of “persons” in each state, not voters.
It’s for this reason that the people of Texas’ 14th and 33rd and congressional districts, each with a roughly identical populations, each have one Representative in Congress even though in 2020 nearly 309,000 people voted in the former while fewer than 158,000 voted in the latter. There are no doubt multiple reasons why turnout varied so much between these districts – neither was particularly competitive, but perhaps more people of the 33rd are under age 18 or are non-citizens and thus ineligible to vote. Maybe the dominant political party in the 14th just had a better turnout operation there. Regardless, every person in each district is represented, not just those who happen to vote in a particular election.
And so with the Electoral College, it is people, organized within the states, who are represented in the presidential election process, not simply voters.
And another, this one addressing both “one person, one vote” and the issue of “second place” winners becoming president: https://saveourstates.com/blog/democracy-is-more-than-adding-up-popular-votes<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fsaveourstates.com%2Fblog%2Fdemocracy-is-more-than-adding-up-popular-votes&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566818840%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=jrQ8F0nBG9mQDXEn765WetCNmWW6MQwzuvwIofUZyCo%3D&reserved=0>

For sake of brevity I’ll just note that “second place” winners occur in other nations as well, and paste the section on Norway plus the two short paragraphs that follow:
Solberg leads a coalition government with three other parties (Progress, Liberal, and Christian Democrat), and in the 2017 elections those four parties combined to receive 1,428,288 votes and win 88 seats in the Storting (Norway’s national legislature, which elects the prime minister). The Labor Party led a five-party coalition (joined by Centre, Socialist Left, Green, and Red parties) that received more popular votes (1,444,498) but only won 81 seats (Labor also beat the Conservatives head-to-head, winning 800,949 votes to 732,897).
How is this possible in highly democratic Norway? Well, like just about every democratic nation on the planet, Norway understands that democracy is more than just popular vote pluralities or majorities. It also includes checks and balances, separation of powers, a free media, protection for human rights, and other key elements (the United Nations, to pick one example, has a list of ten characteristics of democracy<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.un.org%2Fen%2Fsections%2Fissues-depth%2Fdemocracy%2Findex.html&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566818840%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=gkZV7ZPL9xsKAJpfbNEj8F%2Bj51xXZAkWzCtNsh0m8sA%3D&reserved=0>, none of which involve the majority always getting its way in everything.
One of the ways Norway enshrines protections for minorities and limits on majority power is by the way it allocates seats in the Storting. Each county gets between four and nineteen representatives based on the population and its land area. This last factor has the result of providing a modest boost to Norway’s rural population in terms of political power, and contributed to the Solberg-led coalition winning more seats despite winning fewer popular votes.
The truth is, nearly every democratic nation has elements of their political system that diverge from the “one person, one vote” principle to varying degrees, and for important reasons. Frequently, those divergences ensure some minimum level of representation for regions that might otherwise be left out or marginalized, such as the Scottish island of Na h-Eileanan an Iar, Iceland’s Northeast, Northwest, and Southeast constituencies, or the Northwest Territories, Nunuavut, and Yukon in Canada.
The Electoral College is simply a part of the United States’ way of doing what every other democratic nation on the Earth has done, which is to incorporate a number of features that limit in important ways the power of majorities or pluralities. The sum of those features, not simply adding up popular votes and giving the majority whatever it wants, is true democracy.
I don’t happen to regard any of this as mic-drop material or that it settles the matter, but it is a perspective that may help to explain how some of us see democracy (and please Dear Odin in Valhalla, let’s avoid the “we’re a Republic not a Democracy” discussion – I say this not to you, Stephanie, but to those nodding along as the read the above and think it needs to be “improved” by making that pedantic observation).

Decent chance 95% of the listserv would prefer this not clog their inboxes, so I’m happy to take it offline after this.

Sean

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Stephanie F Singer
Sent: Friday, July 2, 2021 12:22 PM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] "The Supreme Court is Putting Democracy at Risk"

The title of this essay assumes that we have a democracy to be put at risk. In what sense is there still democracy in America?

  *   How many people can be excluded (e.g., non-citizens, people who have served time) in a government “by the people”?
  *   How many minority-controlled institutions (e.g., legislative bodies controlled by party A when the majority of votes were cast for Party B’s legislative candidates) can be tolerated in a government of “majority rule”?
I’m not asking rhetorically, and not expecting simple answers. I am sincerely interested in hearing the perspectives from the folks on this list.

—Stephanie

On Jul 1, 2021, at 2:22 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:

https://www.nytimes.com/2021/07/01/opinion/supreme-court-rulings-arizona-california.html<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nytimes.com%2F2021%2F07%2F01%2Fopinion%2Fsupreme-court-rulings-arizona-california.html&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566828832%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=ARZbpQW1o1mtYwLzRPJDP7DzISI8z3UgOsYahxXrFNQ%3D&reserved=0>

I have written this guest essay <https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.nytimes.com%2F2021%2F07%2F01%2Fopinion%2Fsupreme-court-rulings-arizona-california.html&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566828832%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=ARZbpQW1o1mtYwLzRPJDP7DzISI8z3UgOsYahxXrFNQ%3D&reserved=0> for the New York Times. It begins:
In two disturbing rulings closing out the Supreme Court’s term, the court’s six-justice conservative majority, over the loud protests of its three-liberal minority, has shown itself hostile to American democracy.
In one case, Brnovich v. Democratic National Committee<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.supremecourt.gov%2Fopinions%2F20pdf%2F19-1257_g204.pdf&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566838826%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=bms3Tcmmhl74NMFbeGzFz5esPtgKQ29j0cTYehrME14%3D&reserved=0>, the court has weakened the last remaining legal tool for protecting minority voters in federal courts from a new wave of legislation seeking to suppress the vote that is emanating from Republican-controlled states. In the other, Americans for Prosperity v. Bonta<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.supremecourt.gov%2Fopinions%2F20pdf%2F19-251_p86b.pdf&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566848821%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=oMtju4MjIoPiOn%2BmUEfBv00270nYE11KtW8C44HFCNo%3D&reserved=0>, the court has laid the groundwork for lower courts to strike down campaign finance disclosure laws and laws that limit campaign contributions to federal, state and local candidates.
The court is putting our democratic form of government at risk not only in these two decisions but in its overall course over the past few decades….
And mess it up it did. The real significance of Brnovich is what the court says about how Section 2 applies to suppressive voting rules. Rather than focus on whether a law has a disparate impact on minority voters, as Justice Elena Kagan urged in her dissent, the court put a huge thumb on the scale in favor of restrictive state voting rules.
Thanks to Brnovich, a state can now assert an interest in preventing fraud to justify a law without proving that fraud is actually a serious risk, but at the same time, minority voters have a high burden: They must show that the state has imposed more than the “usual burdens of voting.” Justice Alito specifically referred to voting laws in effect in 1982 as the benchmark, a period when early and absentee voting were scarce and registration was much more onerous in many states.
It is hard to see what laws would be so burdensome that they would flunk the majority’s lax test. A ban on Sunday voting despite African American and other religious voters doing “souls to the polls” drives after church? New strict identification requirements for those voting by mail? More frequent voter purges? All would probably be OK under the court’s new test as long as there are still some opportunities for minority citizens to vote — somewhere, somehow….
And Justice Alito ended with a shot across the bow for Congress, should it consider amending the Voting Rights Act to provide an easier standard for minority plaintiffs to meet, such as Justice Kagan’s disparate impact test in dissent. Such a test, he wrote, would “deprive the states of their authority to establish nondiscriminatory voting rules,” potentially in violation of the Constitution….
In the Americans for Prosperity case, he redefined the “exacting scrutiny” standard to judge the constitutionality of disclosure laws so that the government must show its law is “narrowly tailored” to an important government interest. This makes it more like strict scrutiny and more likely that disclosure laws will be struck down. As Justice Sonia Sotomayor wrote in her dissent, “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye.”
The court’s ruling calls into question a number of campaign finance disclosure laws. Perhaps even more significant, it also threatens the constitutionality of campaign contribution laws, which are judged under the “exacting scrutiny” standard, too. Lower courts can now find that such laws are not narrowly tailored to prevent corruption or its appearance or do not provide voters with valuable information — two interests the court recognized in the past to justify campaign laws. A requirement to disclose a $200 contribution? A $500 campaign contribution limit? Plaintiffs in future cases are likely to argue that a law targeting small contributions for disclosure or imposing low contribution limits are not “narrowly tailored” enough to deter corruption or give voters valuable information, even if Congress or a state or municipality found such laws necessary.

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Felectionlawblog.org%2F&data=04%7C01%7C%7C63e912ec5cf44af2e99a08d93d877b91%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637608474566858816%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=k8Grvd98qXguGxjDqSKHbB87th2hLnXnesBz1ZDBcAQ%3D&reserved=0>

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