Former FEC Chairman Brad Smith has a review of left-leaning law professor Rick Hasen’s book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy. As he notes, Hasen rehashes some tired arguments about “voter suppression” but also makes some solid points, such as criticizing Stacey Abrams for undermining the legitimacy of elections:
To his credit, Professor Hasen does recommend some unimaginative but common-sense suggestions that most liberal Democrats reject. He recommends increased prosecution of low-tech election crimes, such as absentee voter fraud, and the cleanup of voter registration lists. He calls for some limits on, though not the abolition of, the practice of “ballot harvesting,” in which campaign operatives collect and return absentee ballots for strangers and others—a practice with tremendous opportunity for fraud.
Where Smith really goes after Hasen is on (1) his endorsement of “fact checking” by social-media platforms as a solution to misleading information, (2) Hasen’s double standards in how he criticizes rhetoric about actions undermining election integrity, and (3) the failure to consider the downsides of his affirmative proposals.
For my part, I’d just add that while both parties have an obligation — one Donald Trump routinely ignores — to accept the legitimacy of electoral losses, the Democrats’ tendency to attack the legitimacy of elections they lose did not start with Trump’s election. It’s been going on for a while. And while Smith attributes a lot of the rancor in American politics to a combination of a bitterly divided citizenry and the growth of federal power, he misses the key element that knots those two factors together: the great escalation over the past five or six decades in the number and social importance of issues that are decided by the federal courts.
It is the all-or-nothing nature of judicial decision-making, the long tenure of Supreme Court justices, the narrow balance of the Court, and the president’s paramount role in nominations that combine to produce the “Flight 93” mood in which the loss of any given presidential election is associated with permanent, irretrievable losses in the culture wars. So long as Americans see elections as one-time things that cannot simply be reversed by waiting for the next election, we will lack the fundamental sense of give-and-take that is necessary for a democracy. People who do not expect to live to fight another day are less likely to accept that defeat is legitimate and temporary.
