[EL] "Electoral McCarthyism"

[Foley, Edward]

Thanks, Jim. I’m not sure we disagree. As you say, the reason that the two sides can’t reach an agreement on who won is that one side won’t agree. But, as I see it, the end result is the same: the incapacity to conduct competitive two-party electoral democracy. Defeating the enemies of liberal democracy, as you put it, cannot (in my view) result in only a one-party system, since that’s antithetical to the political pluralism in a free system of self-government.

So, the highest priority in my judgment is figuring out a way to get the Republican Party (or some other right-of-center political party that replaces it) to function as a responsible competitor in a healthy system of two-party electoral competition.  The Big Lie and the quest for fake audits to substitute for transparently bipartisan ballot-counting are directly contrary to that highest priority.  But the solution to the problem may not be to make a majority of Republicans even more hostile to the electoral process, but instead to figure out how best to bring them back into the fold.

Best, Ned


[signature_1204328033]

Edward B. Foley
Ebersold Chair in Constitutional Law
Director, Election Law at Ohio State<https://u.osu.edu/electionlaw/>
Contributing Columnist, The Washington Post<https://www.washingtonpost.com/people/edward-b-foley/?itid=sf_opinions>

From: Jim Gardner <jgard at buffalo.edu>
Date: Sunday, July 25, 2021 at 12:45 PM
To: "law-election at uci.edu" <law-election at uci.edu>
Cc: College of Law <foley.33 at osu.edu>
Subject: "Electoral McCarthyism"

Ned,

Thanks for the post, but I believe you have mis-diagnosed the problem. You ask: “how can you have a government deriving its just powers from the consent of the governed, if the electoral competitors and their supporters can’t get to the point where they agree on who is entitled to hold office by virtue of the vote tally?” The problem isn’t that Republicans (or at least Republican elites; I’m not sure on the full scope of the problem) can’t agree; the problem is that they won’t agree – the tactic is mendacious, yes, but also deliberate. Jan-Werner Muller describes the problem perfectly in his terrific little book What Is Populism?:

“What distinguishes democratic politicians from populists is that the former make representative claims in the form of something like hypotheses that can be empirically disproven on the basis of the actual results of regular procedures and institutions like elections. . . . [D]emocrats make claims about the people that are self-limiting and are conceived of as fallible. . . . Populists, by contrast, will persist with their representative claim no matter what; because their claim is of a moral and symbolic – not an empirical – nature, it cannot be disproven. When in opposition, populists are bound to cast doubt on the institutions that produce the ‘morally wrong’ outcomes.”

As I see it, the question at this point is not how mutually satisfying consensus can be reached. The question is how defenders of liberal democracy can defeat its enemies.

Jim

___________________________
James A. Gardner
Bridget and Thomas Black SUNY Distinguished Professor of Law
Research Professor of Political Science
University at Buffalo School of Law
The State University of New York
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