vox--2020-08-06--How inequality is changing the Republican Party — and breaking American politics

Historically , conservative political parties face the problem Harvard political scientist Daniel Ziblatt calls “ the conservative dilemma.
” How does a party that represents the interests of moneyed elites win elections in a democracy ?
The dilemma sharpens as inequality widens : The more the haves have , the more have-nots there are who will vote to tax them .
This is not mere ivory-tower theorizing .
Conservative politicians know the bind they ’ re in .
When Mitt Romney told a room of donors during the 2012 election that there were “ 47 percent of the people who @ @ @ @ @ @ @ what ” because they “ believe that they are entitled to health care , to food , to housing , to you name it , ” even though they “ pay no income tax , ” he was describing the conservative dilemma .
“ Our message of low taxes doesn ’ t connect , ” he said , a bit sadly .
If anything , Romney understated the case .
Sure , 47 percent of Americans , in 2011 , didn ’ t pay federal income taxes — though they paid a variety @ @ @ @ @ @ @ payroll taxes to state sales taxes .
But slicing the electorate by income tax burden only makes sense if you ’ re wealthy enough for income taxes to be your primary economic irritant .
That ’ s not true for most people .
Romney ’ s 53 percent versus 47 percent split was a gentle rendering of an economy where the rich were siphoning off startling quantities of wealth .
Occupy Wall Street ’ s rallying cry — “ We are the 99 % !
” — framed the math behind the conservative @ @ @ @ @ @ @ keep winning elections and cutting taxes for the rich in a ( putative ) democracy where the top 1 percent went from 11 percent of national income in 1980 to 20 percent in 2016 , and the bottom 50 percent fell from 21 percent of national income in 1980 to 13 percent in 2016 ?
How do you keep your party from being buried by the 99 percent banding together to vote that income share back into their own pockets ?
In their new book , Let Them Eat Tweets : How the @ @ @ @ @ @ @ Inequality , political scientists Jacob Hacker and Paul Pierson offer three possible answers .
You can cease being a party built around tax cuts for the rich and try to develop an economic agenda that will appeal to the middle class .
You can try to change the political topic , centering politics on racial , religious , and nationalist grievance .
Or you can try to undermine democracy itself .
Despite endless calls for the GOP to choose door No .
1 — and poll after poll showing their voting base desperate @ @ @ @ @ @ @ interests while reflecting their cultural grievances — Republican elites have refused .
Take the 2018 tax cuts .
Donald Trump might have run as a populist prepared to raise taxes on plutocrats like , well , him , but according to an analysis by the nonpartisan Tax Policy Center , the bill he signed gave more than 20 percent of its benefits over the first 10 years , and more than 80 percent of the benefits that last beyond the first 10 years , to the top 1 percent .
For that reason @ @ @ @ @ @ @ most unpopular bills to ever be signed into law .
It ’ s not the kind of accomplishment you can run for reelection on .
That ’ s left Republicans reliant on the second and third strategies .
Hacker and Pierson call the resulting ideology “ plutocratic populism , ” and their book is sharp and thoughtful on how the GOP got here and the dangers of the path they ’ ve chosen .
Where it ’ s less convincing is in its description of where “ here ” is : Does Trump @ @ @ @ @ @ @ or the contradictions that will ultimately tear it apart ?
The logic , and illogic , of plutocratic populism Plutocratic populism presents as a contradiction — like shouted silence or carnivorous vegan .
The key to Hacker and Pierson ’ s formulation is that , in the GOP , plutocracy and populism operate on different axes .
The plutocrats control economic policy , and the populists win elections by deepening racial , religious , and nationalist grievances .
“ To advance an unpopular plutocratic agenda , Republicans have escalated white backlash — and @ @ @ @ @ @ @ Hacker and Pierson write .
“ In the United States , then , plutocracy and right-wing populism have not been opposing forces .
Instead , they have been locked in a doom loop of escalating extremism that must be disrupted .
This is their synthesis of the great economic anxiety versus racial resentment debate .
Republican elites weaponize racial resentment to win voters who would otherwise vote their economic self-interest .
Hacker and Pierson are careful to sidestep the crude version that holds that ethnic and religious division are mere distractions .
Voters @ @ @ @ @ @ @ interests as compelling and legitimate as tax benefits , and the demand for politicians to reflect those underlying resentments and fears is real .
This is a key point in Hacker and Pierson ’ s analysis : They focus on the decisions made by GOP elites , not the desires of conservative voters .
Their fundamental claim is that if Republican elites had chosen a more politically sellable economic agenda , they would have — or at least could have — resisted the lure of white resentment and still won elections .
But @ @ @ @ @ @ @ rich and opposition to universal health care the immovable lodestones of their governance , they had little political choice save to power their movement with the dirty , but abundant , energy offered by ethnonationalism .
The most compelling evidence Hacker and Pierson cite for this argument comes from a study conducted by political scientists Margit Tavits and Joshua Potter , which looked at party platforms from 450 parties in 41 countries between 1945 and 2010 .
Tavits and Potter find that as inequality rises , conservative parties ratchet up their emphasis on @ @ @ @ @ @ @ countries with deep racial and religious fractures .
The pivot only works , Tavits and Potter say , when there is high “ social demand ” for ethnonationalist conflict .
The question this raises , and which Hacker and Pierson don ’ t really answer , is what would happen to this demand in the absence of conservative politicians willing to meet it — particularly in an age of weakened political parties , demographic change , and identitarian social media ?
Trump ’ s rise , which Hacker and Pierson present as the @ @ @ @ @ @ @ be read as a symptom of its mounting internal contradictions , and of the way Republicans voters are increasingly capable of demanding the representation they want .
It may be that the uneasy coalition that married white identitarians to Davos Man is breaking apart .
Indeed , reading Hacker and Pierson ’ s book , I found myself wondering whether inequality was , itself , the cause of the coalition ’ s collapse : Perhaps the plutocratic agenda is becoming too unpopular to even survive Republican presidential primaries .
And if that ’ @ @ @ @ @ @ @ the Republican Party more moderate on all fronts , or more purely ethnonationalist ?
If you survey the modern Republican party , the figures most intent on turning it into a vehicle for ethnonationalist resentment are the least committed to the plutocratic agenda .
Steve Bannon , Tucker Carlson , Sen. Josh Hawley , and 2016 candidate Donald Trump are all examples of the trend : they are , or were , explicit in their desire to sever the ties that yoke angry nationalism and a desire for a whiter America to Paul @ @ @ @ @ @ @ the Republican figures most committed to plutocracy — like Ryan or the Koch Brothers or the Chamber of Commerce — tend to back immigration reform , recoil from ethnonationalist rhetoric , and in 2016 , they opposed Trump in favor of Jeb Bush and Chris Christie and Marco Rubio .
They just lost on all those fronts .
Hacker and Pierson emphasize the fact that once in office , Trump abandoned populist pretense and gave the Chamber of Commerce everything it had ever wanted and more .
But as with so much else @ @ @ @ @ @ @ to distinguish decision-making from disinterest .
Trump outsourced the staffing of his White House to the Koch-soaked Mike Pence and his agenda to congressional Republicans .
The question , then , is whether the dissonance of his administration represents an inevitability of Republican Party politics or simply a lag between Trump demonstrating the base ’ s prioritization of ethnonationalist resentment and a politician who will both win and govern on those terms .
This is the central unanswered question of Hacker and Pierson ’ s book : If you cut the plutocrats out @ @ @ @ @ @ @ drove them out or campaign finance reform neutered them or the Ayn Rand-rapture ascended them , would their absence lead to a Republican Party that moderates on economics and eases off the ethnonationalism , or would it lead to a Republican Party that moderates on economics so it can more effectively pursue social division ?
Put differently , do you get 2000-era John McCain or 2020-era Tucker Carlson ?
I suspect the latter .
Hacker and Pierson admit they are assessing the GOP as an elite-led institution , and quite often , that @ @ @ @ @ @ @ look at it .
But they end up virtually ignoring the power that Republican voters actually hold and , when they are sufficiently offended , wield .
Bush and Rubio and Christie were humiliated in 2016 .
GOP-led efforts at immigration reform failed in 2007 and 2013 .
Majority Leader Eric Cantor was deposed by Rep. Dave Brat .
The Republican autopsy , which recommended that the GOP become more racially and generationally inclusive , was ignored .
At key moments , Fox News tried to support immigration reform and deflate Trump , @ @ @ @ @ @ @ remade itself in Trump ’ s image .
There are lines even conservative media can ’ t cross .
Hacker and Pierson marshal data showing the very rich are more economically conservative than the median voter , but also more socially liberal .
As the GOP becomes more crudely identitarian , there ’ s some evidence that it ’ s losing the economic elites who George W. Bush once called “ my base ” : Contributions from the Forbes 400 have been tipping toward the Democratic Party in recent decades , and there @ @ @ @ @ @ @ s accelerated under Trump .
Hillary Clinton won the country ’ s richest zip codes in 2016 — a change from past Democratic performance — while Trump ’ s electoral college win relied on gains among lower-income whites .
Hacker and Pierson don ’ t assess the Democratic Party much in their book , but the future of plutocratic populism likely depends on the direction that coalition takes .
Joe Biden ’ s Democratic Party is a tent restive billionaires might feel comfortable in .
Yes , they ’ ll pay higher taxes @ @ @ @ @ @ @ competent protection from pandemics , and won ’ t have to explain away the white nationalists in their ranks .
If Bernie Sanders ’ s vision is the future of the Democratic Party , billionaires will remain in the Republican Party , where they are at least seen as allies .
The most chilling argument in Hacker and Pierson ’ s book is that Trump ’ s rhetoric has focused us on the wrong authoritarian threat .
The fear that he would entrench himself as an individual strongman has distracted from the reality @ @ @ @ @ @ @ democracy : A useful thought experiment in American politics is simply to imagine what would happen if the system worked the way we tend to tell our children it works : Whoever wins the most votes wins the election .
In that case , George W. Bush would never have passed his tax cuts nor made his Supreme Court nominations , and neither would Donald Trump .
The Republican Party would likely have had to moderate its approach on both economics and social and racial issues , as there ’ d be no @ @ @ @ @ @ @ agenda that repels most voters and a social agenda that offends the rising demographic majority .
As Sen. Lindsey Graham ( R-SC ) said in 2012 , before becoming first Trump ’ s most slashing critic and then one of his most sycophantic defenders , “ We ’ re not generating enough angry white guys to stay in business for the long term.
” As I argue in my book on polarization , which similarly ends with a call for democratization , if Trump had won exactly as many votes in 2016 but @ @ @ @ @ @ @ he and his followers would be blamed for blowing a clearly winnable contest and handing the Supreme Court to the Democrats for a generation .
In that world , the toxic tendencies he represents would be weakened , and the Republican Party , having lost three presidential elections in a row , would have been far likelier to reform itself .
Its ability to keep traveling the path of plutocratic populism stems entirely from the minoritarian possibilities embedded in America ’ s political institutions .
As Hacker and Pierson show , this is @ @ @ @ @ @ @ identitarians and the plutocrats : Both have lost confidence that they can win elections democratically so they have sought to rewrite the rules in their favor .
What hold on power they retain comes from the way American politics amplifies the power of whiter , more rural , more conservative areas — and that ’ s given the conservative coalition a closing window in which to rig the system such that they can retain control .
America does not exist in a steady state of tension between majoritarian and minoritarian institutions .
Those @ @ @ @ @ @ @ are being changed .
A party in power can rewrite the rules in its own favor , and the Republican Party , at every level , is trying to do just that — using power won through white identity politics and geographic advantage , but deploying strategies patiently funded by plutocrats .
As Hacker and Pierson write : Meanwhile , the Trump administration has sought to reword the census so Hispanics fear filling it out , in the hope that the political representation they ’ d normally receive flows to white , Republican @ @ @ @ @ @ @ White House has been too clumsily explicit about the aims of this strategy for courts to clear it , but that ’ s a mistake that can easily be remedied by savvier successors .
Hacker and Pierson argue that the conservative dilemma matters because conservative parties matter .
History shows that democratic systems thrive amid responsible conservative parties — parties that make their peace with democracy and build agendas that can successfully compete for votes — and they collapse when conservative parties back themselves into defending constituencies and agendas so narrow that their @ @ @ @ @ @ @ the system in their favor .
This is the cliff on which American democracy now teeters .
The threat isn ’ t that Donald Trump will carve his face onto Mt .
Rushmore and engrave his name across the White House .
It ’ s that the awkward coalition that nominated and sustains him will entrench itself , not their bumbling standard-bearer , by turning America into a government by the ethnonationalist minority , for the plutocratic minority .
I spoke with Hacker and Pierson about their book , and the questions it @ @ @ @ @ @ @ , The Ezra Klein Show .
Listen here , or subscribe on Apple Podcasts , Spotify , or wherever you get your pods .
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Historically, conservative political parties face the problem Harvard political scientist Daniel Ziblatt calls “the conservative dilemma.” How does a party that represents the interests of moneyed elites win elections in a democracy? The dilemma sharpens as inequality widens: The more the haves have, the more have-nots there are who will vote to tax them.
This is not mere ivory-tower theorizing. Conservative politicians know the bind they’re in. When Mitt Romney told a room of donors during the 2012 election that there were “47 percent of the people who will vote for the president no matter what” because they “believe that they are entitled to health care, to food, to housing, to you name it,” even though they “pay no income tax,” he was describing the conservative dilemma. “Our message of low taxes doesn’t connect,” he said, a bit sadly.
If anything, Romney understated the case. Sure, 47 percent of Americans, in 2011, didn’t pay federal income taxes — though they paid a variety of other taxes, ranging from federal payroll taxes to state sales taxes. But slicing the electorate by income tax burden only makes sense if you’re wealthy enough for income taxes to be your primary economic irritant. That’s not true for most people. Romney’s 53 percent versus 47 percent split was a gentle rendering of an economy where the rich were siphoning off startling quantities of wealth.
Occupy Wall Street’s rallying cry — “We are the 99%!” — framed the math behind the conservative dilemma more directly: How do you keep winning elections and cutting taxes for the rich in a (putative) democracy where the top 1 percent went from 11 percent of national income in 1980 to 20 percent in 2016, and the bottom 50 percent fell from 21 percent of national income in 1980 to 13 percent in 2016? How do you keep your party from being buried by the 99 percent banding together to vote that income share back into their own pockets?
In their new book, Let Them Eat Tweets: How the Right Rules in an Age of Extreme Inequality, political scientists Jacob Hacker and Paul Pierson offer three possible answers. You can cease being a party built around tax cuts for the rich and try to develop an economic agenda that will appeal to the middle class. You can try to change the political topic, centering politics on racial, religious, and nationalist grievance. Or you can try to undermine democracy itself.
Despite endless calls for the GOP to choose door No. 1 — and poll after poll showing their voting base desperate for leaders who would represent their economic interests while reflecting their cultural grievances — Republican elites have refused. Take the 2017 tax cuts. Donald Trump might have run as a populist prepared to raise taxes on plutocrats like, well, him, but according to an analysis by the nonpartisan Tax Policy Center, the bill he signed gave more than 20 percent of its benefits over the first 10 years, and more than 80 percent of the benefits that last beyond the first 10 years, to the top 1 percent. For that reason, it’s one of the most unpopular bills ever to be signed into law. It’s not the kind of accomplishment you can run for reelection on.
That’s left Republicans reliant on the second and third strategies. Hacker and Pierson call the resulting ideology “plutocratic populism,” and their book is sharp and thoughtful on how the GOP got here and the dangers of the path they’ve chosen. Where it’s less convincing is in its description of where “here” is: Does Trump represent the culmination of the Republican coalition or the contradictions that will ultimately tear it apart?
The logic, and illogic, of plutocratic populism
Plutocratic populism presents as a contradiction — like shouted silence or carnivorous vegan. The key to Hacker and Pierson’s formulation is that, in the GOP, plutocracy and populism operate on different axes. The plutocrats control economic policy, and the populists win elections by deepening racial, religious, and nationalist grievances.
“To advance an unpopular plutocratic agenda, Republicans have escalated white backlash — and, increasingly, undermined democracy,” Hacker and Pierson write. “In the United States, then, plutocracy and right-wing populism have not been opposing forces. Instead, they have been locked in a doom loop of escalating extremism that must be disrupted.”
This is their synthesis of the great economic anxiety versus racial resentment debate. Republican elites weaponize racial resentment to win voters who would otherwise vote their economic self-interest. Hacker and Pierson are careful to sidestep the crude version that holds that ethnic and religious division are mere distractions. Voters see racial and religious dominance as political interests as compelling and legitimate as tax benefits, and the demand for politicians to reflect those underlying resentments and fears is real.
This is a key point in Hacker and Pierson’s analysis: They focus on the decisions made by GOP elites, not the desires of conservative voters. Their fundamental claim is that if Republican elites had chosen a more politically sellable economic agenda, they would have — or at least could have — resisted the lure of white resentment and still won elections. But once they made tax cuts for the rich and opposition to universal health care the immovable lodestones of their governance, they had little political choice save to power their movement with the dirty, but abundant, energy offered by ethnonationalism.
The most compelling evidence Hacker and Pierson cite for this argument comes from a study conducted by political scientists Margit Tavits and Joshua Potter, which looked at party platforms from 450 parties in 41 countries between 1945 and 2010. Tavits and Potter find that as inequality rises, conservative parties ratchet up their emphasis on religious and racial grievances — particularly in countries with deep racial and religious fractures. The pivot only works, Tavits and Potter say, when there is high “social demand” for ethnonationalist conflict.
The question this raises, and which Hacker and Pierson don’t really answer, is what would happen to this demand in the absence of conservative politicians willing to meet it — particularly in an age of weakened political parties, demographic change, and identitarian social media? Trump’s rise, which Hacker and Pierson present as the culmination of plutocratic populism, can also be read as a symptom of its mounting internal contradictions, and of the way Republicans voters are increasingly capable of demanding the representation they want.
It may be that the uneasy coalition that married white identitarians to Davos Man is breaking apart. Indeed, reading Hacker and Pierson’s book, I found myself wondering whether inequality was, itself, the cause of the coalition’s collapse: Perhaps the plutocratic agenda is becoming too unpopular to even survive Republican presidential primaries. And if that’s so, is the future of the Republican Party more moderate on all fronts, or more purely ethnonationalist?
The Donald Trump question
If you survey the modern Republican Party, the figures most intent on turning it into a vehicle for ethnonationalist resentment are the least committed to the plutocratic agenda. Steve Bannon, Tucker Carlson, Sen. Josh Hawley, and 2016 candidate Donald Trump are all examples of the trend: They are, or were, explicit in their desire to sever the ties that yoke angry nationalism and a desire for a whiter America to Paul Ryan’s budget.
Conversely, the Republican figures most committed to plutocracy — like Ryan or the Koch brothers or the Chamber of Commerce — tend to back immigration reform and recoil from ethnonationalist rhetoric, and in 2016, they opposed Trump in favor of Jeb Bush and Chris Christie and Marco Rubio. They just lost on all those fronts.
Hacker and Pierson emphasize the fact that once in office, Trump abandoned populist pretense and gave the Chamber of Commerce everything it had ever wanted and more. But, as with so much else with Trump, it can be hard to distinguish decision-making from disinterest. Trump outsourced the staffing of his White House to the Koch-soaked Mike Pence and his agenda to congressional Republicans. The question, then, is whether the dissonance of his administration represents an inevitability of Republican Party politics or simply a lag between Trump demonstrating the base’s prioritization of ethnonationalist resentment and a politician who will both win and govern on those terms.
This is the central unanswered question of Hacker and Pierson’s book: If you cut the plutocrats out of the party, either because bigotry drove them out or campaign finance reform neutered them or the Ayn Rand rapture ascended them, would their absence lead to a Republican Party that moderates on economics and eases off the ethnonationalism, or would it lead to a Republican Party that moderates on economics so it can more effectively pursue social division? Put differently, do you get 2000-era John McCain or 2020-era Tucker Carlson? I suspect the latter.
Hacker and Pierson admit they are assessing the GOP as an elite-led institution, and quite often, that’s probably the right way to look at it. But they end up virtually ignoring the power that Republican voters actually hold and, when they are sufficiently offended, wield.
Bush and Rubio and Christie were humiliated in 2016. GOP-led efforts at immigration reform failed in 2007 and 2013. Majority Leader Eric Cantor was deposed by Rep. Dave Brat. The Republican autopsy, which recommended that the GOP become more racially and generationally inclusive, was ignored. At key moments, Fox News tried to support immigration reform and deflate Trump, and it lost those fights and remade itself in Trump’s image. There are lines even conservative media can’t cross.
Hacker and Pierson marshal data showing the very rich are more economically conservative than the median voter, but also more socially liberal. As the GOP becomes more crudely identitarian, there’s some evidence that it’s losing the economic elites who George W. Bush once called “my base”: Contributions from the Forbes 400 have been tipping toward the Democratic Party in recent decades, and there’s reason to believe that’s accelerated under Trump. Hillary Clinton won the country’s richest zip codes in 2016 — a change from past Democratic performance — while Trump’s Electoral College win relied on gains among lower-income whites.
Hacker and Pierson don’t assess the Democratic Party much in their book, but the future of plutocratic populism likely depends on the direction that coalition takes. Joe Biden’s Democratic Party is a tent restive billionaires might feel comfortable in. Yes, they’ll pay higher taxes, but they’ll also receive competent protection from pandemics and won’t have to explain away the white nationalists in their ranks. If Bernie Sanders’s vision is the future of the Democratic Party, billionaires will remain in the Republican Party, where they are at least seen as allies.
Minoritarian authoritarians
The most chilling argument in Hacker and Pierson’s book is that Trump’s rhetoric has focused us on the wrong authoritarian threat. The fear that he would entrench himself as an individual strongman has distracted from the reality that his party is insulating itself from democracy:
As their goals have become more extreme, Republicans and their organized allies have increasingly exploited long-standing but worsening vulnerabilities in our political system to lock in narrow priorities, even in the face of majority opposition. The specter we face is not just a strongman bending a party and our political institutions to his will; it is also a minority faction entrenching itself in power, beyond the ambitions and careers of any individual leader. Whether Trump can break through the barriers against autocracy, he and his party—with plutocratic and right-wing backing—are breaking majoritarian democracy.
A useful thought experiment in American politics is simply to imagine what would happen if the system worked the way we tend to tell our children it works: Whoever wins the most votes wins the election. In that case, George W. Bush would never have passed his tax cuts nor made his Supreme Court nominations, and neither would Donald Trump. The Republican Party would likely have had to moderate its approach on both economics and social and racial issues, as there’d be no viable path forward that combines an economic agenda that repels most voters and a social agenda that offends the rising demographic majority. As Sen. Lindsey Graham (R-SC) said in 2012, before becoming first Trump’s most slashing critic and then one of his most sycophantic defenders, “We’re not generating enough angry white guys to stay in business for the long term.”
As I argue in my book on polarization, which similarly ends with a call for democratization, if Trump had won exactly as many votes in 2016 but lost the election because of it, he and his followers would be blamed for blowing a clearly winnable contest and handing the Supreme Court to the Democrats for a generation. In that world, the toxic tendencies he represents would be weakened, and the Republican Party, having lost three presidential elections in a row, would have been far likelier to reform itself. Its ability to keep traveling the path of plutocratic populism stems entirely from the minoritarian possibilities embedded in America’s political institutions.
As Hacker and Pierson show, this is a point of true convergence between the identitarians and the plutocrats: Both have lost confidence that they can win elections democratically, so they have sought to rewrite the rules in their favor. What hold on power they retain comes from the way American politics amplifies the power of whiter, more rural, more conservative areas — and that’s given the conservative coalition a closing window in which to rig the system such that they can retain control.
America does not exist in a steady state of tension between majoritarian and minoritarian institutions. Those institutions can be changed, and they are being changed. A party in power can rewrite the rules in its own favor, and the Republican Party, at every level, is trying to do just that — using power won through white identity politics and geographic advantage, but deploying strategies patiently funded by plutocrats. As Hacker and Pierson write:
Recent GOP moves in North Carolina show what’s possible in a closely balanced state. Republicans first took the statehouse in 2010. They quickly enlisted the leading Republican architect of extreme partisan gerrymanders, Thomas Hofeller. A mostly anonymous figure until his death in 2018, Hofeller liked to describe gerrymandering as “the only legalized form of vote-stealing left in the United States.” He once told an audience of state legislators, “Redistricting is like an election in reverse. It’s a great event. Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters.” In 2018, North Carolina Republicans won their “election in reverse,” keeping hold of the statehouse even while losing the statewide popular vote. In North Carolina’s races for the US House, Republicans won half the statewide votes and 77 percent of the seats. A global elections watchdog ranked North Carolina’s “electoral integrity” alongside that of Cuba, Indonesia, and Sierra Leone.
Meanwhile, the Trump administration has sought to reword the census so Hispanics fear filling it out, in the hope that the political representation they’d normally receive flows to white, Republican voters instead. So far, the White House has been too clumsily explicit about the aims of this strategy for courts to clear it, but that’s a mistake that can easily be remedied by savvier successors.
Hacker and Pierson argue that the conservative dilemma matters because conservative parties matter. History shows that democratic systems thrive amid responsible conservative parties — parties that make their peace with democracy and build agendas that can successfully compete for votes — and they collapse when conservative parties back themselves into defending constituencies and agendas so narrow that their only path to victory is to rig the system in their favor.
This is the cliff on which American democracy now teeters. The threat isn’t that Donald Trump will carve his face onto Mount Rushmore and engrave his name across the White House. It’s that the awkward coalition that nominated and sustains him will entrench itself, not their bumbling standard-bearer, by turning America into a government by the ethnonationalist minority, for the plutocratic minority.
Further listening
I spoke with Hacker and Pierson about their book, and the questions it raised for me, on my podcast, The Ezra Klein Show. Listen here, or subscribe on Apple Podcasts, Spotify, or wherever you get your pods.


vox--2020-08-06--Masha Gessen on American politics after the death of “truth”

What does it mean to live in a “ post-truth ” moment ?
On one level , the ramifications are obvious : In a world where we can ’ t even agree on basic facts , persuasion and dialogue become all but impossible .
But the problem with post-truth might run even deeper .
In their new book Surviving Autocracy , New Yorker staff writer Masha Gessen argues that the collapse of a common language , or a common experience of the world , is essentially the death of democratic politics as such .
Politics , in Gessen ’ s @ @ @ @ @ @ @ how we ’ re going to live together tomorrow : “ We can ’ t do politics if we can ’ t talk to one another ... if we don ’ t inhabit a shared reality.
” Gessen grew up in the Soviet Union and spent many years covering the ascendance of totalitarian rule in that country .
Their coverage of Trump and Trumpism has been among the best anywhere .
But this book , more than any other Trump book I ’ ve read , focuses on “ the corruption of language @ @ @ @ @ @ @ collective space for what we typically think of as politics .
I spoke with Gessen by phone about the relationship between language and power , and why our inability to exist in the same reality is paving the way for authoritarian government .
A transcript of our conversation , lightly edited for length and clarity , follows .
Hannah Arendt , the great 20th-century political theorist , had this notion of “ thoughtlessness , ” referring to the inability of people in totalitarian societies to think beyond clichés and slogans .
How do @ @ @ @ @ @ @ ?
When [ Arendt ] writes about totalitarian societies in particular , there ’ s something really important that is so hard to grasp .
In the last chapter of The Origins of Totalitarianism , she talks about the difference between tyranny and totalitarianism .
She says that under tyranny , a certain set of behaviors , a certain set of statements , is expected .
A certain kind of performance from citizens is traded for some security that still leaves the person intact .
Whereas under totalitarianism , because of terror and @ @ @ @ @ @ @ you never know what is expected of you .
So you can ’ t perform totalitarianism in the same way .
And this not knowing what you ’ re supposed to give the regime in order for it to leave you alone robs the individual of the very ability to form opinions , and I think that ’ s also at the root of this idea of thoughtlessness , because the goal of the totalitarian regime is to make it impossible to think .
Robbing someone of their ability to form opinions is @ @ @ @ @ @ @ Something similar happens in non-totalitarian societies , though it ’ s even harder to detect .
This is why I wanted to ask you about language .
For Arendt , at least , if all we know about politics comes to us via slogans and talking points and soundbites , then that doesn ’ t just determine how we talk about politics , it determines what ’ s actually thinkable in the first place .
Language determines what ’ s thinkable , right ?
I mean , it ’ s very hard to @ @ @ @ @ @ @ t have a word for — it ’ s impossible , in fact .
But there ’ s a huge difference between that limitation , which is just part of the human condition , and being in an encapsulated , ideological world that is divorced from the reality you can experience .
And when Arendt writes about totalitarian ideology , she makes a very important point that any ideology can be totalitarian .
And she writes that its key characteristic is that it ’ s entirely encapsulated ; it ’ s impervious to @ @ @ @ @ @ @ I think the problem with Fox News , or living inside the Fox News bubble , is not just the language and the framing , but it ’ s that the language and the framing actually do not apply to your daily reality .
I was talking to somebody the other day whose entire family has had Covid , and yet they don ’ t believe in Covid .
And that is , like , a perfect example of totalitarian ideology .
Even if they had said that it wasn ’ t that @ @ @ @ @ @ @ are getting it , or something that acknowledged their personal experience — that would be one thing .
But they literally do not think that the thing exists .
They think that it ’ s a conspiracy .
That ’ s wild .
Is that sort of reality-denying ideology the precondition for actual totalitarianism ?
Well , you had all these great German thinkers who survived fascism in the 1930s and ’ 40s , and they came to the US in the ’ 50s and ’ 60s and basically said the preconditions for @ @ @ @ @ @ @ here .
But even suggesting that seemed outlandish at the time .
You can ’ t use words like “ fascism ” without getting dismissed .
But look , there are really important distinctions between the country that I spent most of my life writing about and this one .
And the distinctions may not be what ’ s important right now .
Maybe what ’ s important right now are the similarities , and I don ’ t know that Donald Trump has the intellectual or organizational capacity to create state terror @ @ @ @ @ @ @ totalitarian ideology and he has been able to pull a huge number of people into his encapsulated world .
I guess the question is , how much state terror is necessary to create a totalitarian society ?
Not nearly as much as people might think .
Well , that ’ s the thing .
We imagine terror as something that applies pressure directly , to every person in society at every living moment .
Terror actually works by creating a sense of a credible threat to every person in society .
And as @ @ @ @ @ @ @ Covid came along and created the sense of a credible threat to every person in society , even if Trump doesn ’ t quite believe in Covid .
I mean , the Soviet Union in the 1970s did not have the gulag , did not even have particularly high rates of incarceration , did not jail everybody who was differently minded , just a few people .
And that was enough .
That was enough to maintain the stability and uniformity of thought , and just this sort of intellectual and moral desert @ @ @ @ @ @ @ Russia experienced this wave of truth and openness in those early years after the Soviet empire collapsed , and how it ’ s been rolled back so thoroughly by Putin and the strange nihilistic climate he ’ s helped engineer .
It turns out people can unsee and unthink true thoughts pretty easily .
A few years ago , I went back to Russia , where some of the worst labor camps were , and visited someone I had interviewed there 20 years ago .
She was an activist back then , and @ @ @ @ @ @ @ At first I thought she was joking when she said she was for Putin , then she said , “ I just got sick of being a minority .
I wanted to vote for someone who was going to win for once.
” And then we ’ re sitting there by this fire , in the old camps , and she said something about how killing all these people had been necessary to prepare for the war , that the gulag had been necessary .
And I said , “ Wait a second @ @ @ @ @ @ @ ” I recounted all the crimes and all the numbers and what I read in the archives , and she just said , “ Oh , they can write anything .
They can write anything .
They can say anything.
” This was the ultimate post-truth moment .
She had seen the evidence .
She spent most of her life working with these documents , and yet she could just dismiss them when they were inconvenient for the story that she had decided to buy in to .
Connecting that back to the @ @ @ @ @ @ @ that “ when something can not be described , it does not become a fact of shared reality.
” And the kind of willful blindness you ’ re describing is only possible when language has been corrupted or shrunken down so much that the things we have to say simply aren ’ t sayable or thinkable — or at least not sayable or thinkable for enough people .
Right .
Like I was saying earlier , you can ’ t speak something that you don ’ t have a word for , and @ @ @ @ @ @ @ s happening when the words you have [ have ] been emptied of meaning .
I was writing about the experience of voting in the Soviet Union , which was called something else .
It was called the free expression of citizen will , but in fact it was this experience of coercion and participation in an empty ritual .
It ’ s like if you and I went swimming together , but the whole time we were in denial about swimming , and we ’ re talking about it as though we @ @ @ @ @ @ @ five years later , I say to you , “ Remember that time we went swimming.
” But we never called it swimming .
We always called it mountain climbing .
And we can ’ t talk about it as swimming , because it ’ s still mountain climbing in the way we described it , in the way that we agreed to talk about it .
But we didn ’ t experience any mountain climbing .
We were wet and cold , and our shoes were full of sand , but none @ @ @ @ @ @ @ that we had agreed to share .
That ’ s kind of what it was like to live in the Soviet Union , and it ’ s a lot of what it ’ s like to live in Trump ’ s America .
And what ’ s the straight line from the loss of a shared reality to a totalitarian society ?
We can ’ t do politics if we can ’ t talk to one another .
We can ’ t talk politics if we don ’ t inhabit a shared reality @ @ @ @ @ @ @ if we can ’ t agree on what we ’ re living through , because then we can ’ t discuss how we ’ re going to be living together tomorrow , which is what politics is .
Now , that doesn ’ t necessarily create the preconditions for totalitarianism , but I actually think that the complete elimination of politics is what authoritarianism is .
Under authoritarianism , everybody goes home , has their private lives , cooks dinner , bakes bread , and the authoritarian individual or group accumulates money and @ @ @ @ @ @ @ disappears entirely , public space disappears entirely .
It ’ s like lockdown forever .
But totalitarianism is the opposite .
The private space disappears and everything becomes political , but everything becomes political on the terms of the ruling ideology .
So the authoritarian leader wants people to go home and tend to their lives .
The totalitarian leader wants them out in the public square , demonstrating their support for him .
This is why there ’ s no doubt in my mind that Trump is a totalitarian-style leader .
If @ @ @ @ @ @ @ whole country at a Trump rally 24/7 .
You write in the book that the longer Trumpism lasts , the harder it will be to undo the damage he ’ s done to our political language .
Is the real damage already done ?
What would it even mean to recover or reinvent political language ?
I don ’ t think that it ’ s impossible , at this point , to recover .
I spent most of my life writing about and living in a country where language had really been damaged @ @ @ @ @ @ @ point of total disrepair .
We ’ re not nearly that far along .
A lot of people are thinking through how to write and talk about this era in ways that are better than we have talked about politics in the pre-Trump era .
And there ’ s some incredible writing and talking that the Trump era has produced , so I think we still have a lot of potential if we get to reverse this in November .
In the ’ 90s , Soviet journalists had to basically reinvent journalism in @ @ @ @ @ @ @ have to do the same ?
Can they do the same ?
That ’ s a great question .
Maybe I ’ m too optimistic , because I see a huge difference between the current conditions of American journalism and what it was like for Russian journalists in the ’ 90s .
There are real conversations happening now about what “ objectivity ” means and what “ moral clarity ” looks like , and that ’ s all part of a reinvention process .
Right now it ’ s hard because things move @ @ @ @ @ @ @ no attention span , and finding space for actual conversations is difficult .
But a lot of good work is being done , and I think we can come to some kind of renewed understanding of journalistic practices — if not an entirely new understanding — on the other side of this .
You say pretty clearly that our institutions won ’ t save us , and that means our next opportunity to reverse this autocratic drift is the November election .
If that goes the other way , if Trump ’ s @ @ @ @ @ @ @ four more years , what then ?
I don ’ t think we should be in the business of making predictions , but that ’ s a really dark scenario .
That may mean that we miss our only chance to reverse the autocratic attempt , and then we would move into what the Hungarian sociologist Bálint Magyar calls “ autocratic consolidation , ” which essentially means that moving beyond Trump would require not the change of president , but the change of regime .
We already have such damage done to institutions @ @ @ @ @ @ @ Department to the destruction of regulatory agencies to the dismantling of all oversight systems in the government itself .
But we also have some incredible damage done to political culture and political language , as we discussed earlier .
There will have to [ be ] real institutional repair and a total reinvention of how we think American democracy is represented institutionally .
I take all of that to mean that if we move into this next stage of autocratic consolidation , we ’ re talking about a level of challenge that , @ @ @ @ @ @ @ like a revolution to fix or to overcome .
Every day at Vox , we aim to answer your most important questions and provide you , and our audience around the world , with information that has the power to save lives .
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What does it mean to live in a “post-truth” moment? On one level, the ramifications are obvious: In a world where we can’t even agree on basic facts, persuasion and dialogue become all but impossible.
But the problem with post-truth might run even deeper. In their new book Surviving Autocracy, New Yorker staff writer Masha Gessen argues that the collapse of a common language, or a common experience of the world, is essentially the death of democratic politics as such. Politics, in Gessen’s words, is an ongoing discussion about how we’re going to live together tomorrow: “We can’t do politics if we can’t talk to one another ... if we don’t inhabit a shared reality.”
Gessen grew up in the Soviet Union and spent many years covering the ascendance of totalitarian rule in that country. Their coverage of Trump and Trumpism has been among the best anywhere. But this book, more than any other Trump book I’ve read, focuses on “the corruption of language” and the subsequent loss of a collective space for what we typically think of as politics.
I spoke with Gessen by phone about the relationship between language and power, and why our inability to exist in the same reality is paving the way for authoritarian government.
A transcript of our conversation, lightly edited for length and clarity, follows.
Sean Illing
Hannah Arendt, the great 20th-century political theorist, had this notion of “thoughtlessness,” referring to the inability of people in totalitarian societies to think beyond clichés and slogans. How do you see the problem of thoughtlessness today?
Masha Gessen
When [Arendt] writes about totalitarian societies in particular, there’s something really important that is so hard to grasp. In the last chapter of The Origins of Totalitarianism, she talks about the difference between tyranny and totalitarianism. She says that under tyranny, a certain set of behaviors, a certain set of statements, is expected. A certain kind of performance from citizens is traded for some security that still leaves the person intact.
Whereas under totalitarianism, because of terror and because terror depends on being unpredictable, you never know what is expected of you. So you can’t perform totalitarianism in the same way. And this not knowing what you’re supposed to give the regime in order for it to leave you alone robs the individual of the very ability to form opinions, and I think that’s also at the root of this idea of thoughtlessness, because the goal of the totalitarian regime is to make it impossible to think.
Sean Illing
Robbing someone of their ability to form opinions is an interesting way to put it. Something similar happens in non-totalitarian societies, though it’s even harder to detect. This is why I wanted to ask you about language. For Arendt, at least, if all we know about politics comes to us via slogans and talking points and soundbites, then that doesn’t just determine how we talk about politics, it determines what’s actually thinkable in the first place.
Masha Gessen
Language determines what’s thinkable, right? I mean, it’s very hard to think a thought that you don’t have a word for — it’s impossible, in fact.
But there’s a huge difference between that limitation, which is just part of the human condition, and being in an encapsulated, ideological world that is divorced from the reality you can experience. And when Arendt writes about totalitarian ideology, she makes a very important point that any ideology can be totalitarian. And she writes that its key characteristic is that it’s entirely encapsulated; it’s impervious to any input from outside reality. So I think the problem with Fox News, or living inside the Fox News bubble, is not just the language and the framing, but it’s that the language and the framing actually do not apply to your daily reality.
I was talking to somebody the other day whose entire family has had Covid, and yet they don’t believe in Covid. And that is, like, a perfect example of totalitarian ideology. Even if they had said that it wasn’t that bad and not a lot of people are getting it, or something that acknowledged their personal experience — that would be one thing. But they literally do not think that the thing exists. They think that it’s a conspiracy.
Sean Illing
That’s wild. Is that sort of reality-denying ideology the precondition for actual totalitarianism?
Masha Gessen
Well, you had all these great German thinkers who survived fascism in the 1930s and ’40s, and they came to the US in the ’50s and ’60s and basically said the preconditions for fascism or totalitarianism were already in place here. But even suggesting that seemed outlandish at the time. You can’t use words like “fascism” without getting dismissed.
But look, there are really important distinctions between the country that I spent most of my life writing about and this one. And the distinctions may not be what’s important right now. Maybe what’s important right now are the similarities, and I don’t know that Donald Trump has the intellectual or organizational capacity to create state terror. I do believe he has a totalitarian ideology and he has been able to pull a huge number of people into his encapsulated world.
I guess the question is, how much state terror is necessary to create a totalitarian society?
Sean Illing
Not nearly as much as people might think.
Masha Gessen
Well, that’s the thing. We imagine terror as something that applies pressure directly, to every person in society at every living moment. Terror actually works by creating a sense of a credible threat to every person in society. And as if Trump weren’t enough, Covid came along and created the sense of a credible threat to every person in society, even if Trump doesn’t quite believe in Covid.
I mean, the Soviet Union in the 1970s did not have the gulag, did not even have particularly high rates of incarceration, did not jail everybody who was differently minded, just a few people. And that was enough. That was enough to maintain the stability and uniformity of thought, and just this sort of intellectual and moral desert.
Sean Illing
You’ve written about how Russia experienced this wave of truth and openness in those early years after the Soviet empire collapsed, and how it’s been rolled back so thoroughly by Putin and the strange nihilistic climate he’s helped engineer.
Masha Gessen
It turns out people can unsee and unthink true thoughts pretty easily. A few years ago, I went back to Russia, where some of the worst labor camps were, and visited someone I had interviewed there 20 years ago. She was an activist back then, and now she’s a Putinist. At first I thought she was joking when she said she was for Putin, then she said, “I just got sick of being a minority. I wanted to vote for someone who was going to win for once.”
And then we’re sitting there by this fire, in the old camps, and she said something about how killing all these people had been necessary to prepare for the war, that the gulag had been necessary. And I said, “Wait a second, what are you talking about?” I recounted all the crimes and all the numbers and what I read in the archives, and she just said, “Oh, they can write anything. They can write anything. They can say anything.”
This was the ultimate post-truth moment. She had seen the evidence. She spent most of her life working with these documents, and yet she could just dismiss them when they were inconvenient for the story that she had decided to buy in to.
Sean Illing
Connecting that back to the language, you write in the book that “when something cannot be described, it does not become a fact of shared reality.” And the kind of willful blindness you’re describing is only possible when language has been corrupted or shrunken down so much that the things we have to say simply aren’t sayable or thinkable — or at least not sayable or thinkable for enough people.
Masha Gessen
Right. Like I was saying earlier, you can’t speak something that you don’t have a word for, and you can’t describe what’s happening when the words you have [have] been emptied of meaning. I was writing about the experience of voting in the Soviet Union, which was called something else. It was called the free expression of citizen will, but in fact it was this experience of coercion and participation in an empty ritual.
It’s like if you and I went swimming together, but the whole time we were in denial about swimming, and we’re talking about it as though we had gone mountain climbing. And then five years later, I say to you, “Remember that time we went swimming.” But we never called it swimming. We always called it mountain climbing. And we can’t talk about it as swimming, because it’s still mountain climbing in the way we described it, in the way that we agreed to talk about it. But we didn’t experience any mountain climbing. We were wet and cold, and our shoes were full of sand, but none of that was part of an experience that we had agreed to share.
That’s kind of what it was like to live in the Soviet Union, and it’s a lot of what it’s like to live in Trump’s America.
Sean Illing
And what’s the straight line from the loss of a shared reality to a totalitarian society?
Masha Gessen
We can’t do politics if we can’t talk to one another. We can’t talk politics if we don’t inhabit a shared reality. We can’t have politics if we can’t agree on what we’re living through, because then we can’t discuss how we’re going to be living together tomorrow, which is what politics is.
Now, that doesn’t necessarily create the preconditions for totalitarianism, but I actually think that the complete elimination of politics is what authoritarianism is. Under authoritarianism, everybody goes home, has their private lives, cooks dinner, bakes bread, and the authoritarian individual or group accumulates money and power out of sight. So politics disappears entirely, public space disappears entirely. It’s like lockdown forever.
But totalitarianism is the opposite. The private space disappears and everything becomes political, but everything becomes political on the terms of the ruling ideology. So the authoritarian leader wants people to go home and tend to their lives. The totalitarian leader wants them out in the public square, demonstrating their support for him.
This is why there’s no doubt in my mind that Trump is a totalitarian-style leader. If he could, he would have the whole country at a Trump rally 24/7.
Sean Illing
You write in the book that the longer Trumpism lasts, the harder it will be to undo the damage he’s done to our political language. Is the real damage already done? What would it even mean to recover or reinvent political language?
Masha Gessen
I don’t think that it’s impossible, at this point, to recover. I spent most of my life writing about and living in a country where language had really been damaged to what I think might be the point of total disrepair. We’re not nearly that far along. A lot of people are thinking through how to write and talk about this era in ways that are better than we have talked about politics in the pre-Trump era. And there’s some incredible writing and talking that the Trump era has produced, so I think we still have a lot of potential if we get to reverse this in November.
Sean Illing
In the ’90s, Soviet journalists had to basically reinvent journalism in their country. Will the American press have to do the same? Can they do the same?
Masha Gessen
That’s a great question. Maybe I’m too optimistic, because I see a huge difference between the current conditions of American journalism and what it was like for Russian journalists in the ’90s. There are real conversations happening now about what “objectivity” means and what “moral clarity” looks like, and that’s all part of a reinvention process. Right now it’s hard because things move so fast, and there’s no attention span, and finding space for actual conversations is difficult. But a lot of good work is being done, and I think we can come to some kind of renewed understanding of journalistic practices — if not an entirely new understanding — on the other side of this.
Sean Illing
You say pretty clearly that our institutions won’t save us, and that means our next opportunity to reverse this autocratic drift is the November election. If that goes the other way, if Trump’s autocratic style is affirmed and rewarded with four more years, what then?
Masha Gessen
I don’t think we should be in the business of making predictions, but that’s a really dark scenario. That may mean that we miss our only chance to reverse the autocratic attempt, and then we would move into what the Hungarian sociologist Bálint Magyar calls “autocratic consolidation,” which essentially means that moving beyond Trump would require not the change of president, but the change of regime.
We already have such damage done to institutions, from the corruption of the Justice Department to the destruction of regulatory agencies to the dismantling of all oversight systems in the government itself. But we also have some incredible damage done to political culture and political language, as we discussed earlier. There will have to [be] real institutional repair and a total reinvention of how we think American democracy is represented institutionally.
Sean Illing
I take all of that to mean that if we move into this next stage of autocratic consolidation, we’re talking about a level of challenge that, almost by definition, would require something like a revolution to fix or to overcome.
Masha Gessen
Exactly.
Sean Illing
That’s scary.
Masha Gessen
I know.


vox--2020-08-06--Trump’s radical lawsuit against Nevada’s vote-by-mail law, explained

On Monday , Nevada Gov .
Steve Sisolak ( D ) signed legislation intended to ensure that voters in his state can still cast a ballot during the Covid-19 pandemic .
Among other things , the new law ( known as AB4 ) provides that registered Nevada voters will automatically receive a ballot in the mail , a common practice in Western states .
It also requires the state to provide a minimum number of polling places for in-person voters , both on Election Day and for early voting .
President Trump ’ s response to this new law was @ @ @ @ @ @ @ after AB4 became law , Trump ’ s lawyers filed a lawsuit on behalf of Trump ’ s campaign and the Republican Party , seeking to block it .
Their legal complaint in Donald J. Trump for President v. Cegavske is not a model of careful legal argumentation .
It claims , for example , that AB4 changed Nevada law to allow mailed-in ballots without postmarks to be counted so long as they arrive within three days of Election Day .
In fact , Nevada law already allowed such ballots to be counted @ @ @ @ @ @ @ focuses on the fact that AB4 was enacted “ on a weekend vote ” — the state House approved the bill on a Friday , but the Senate passed it on a Sunday — without explaining how the day of the bill ’ s passage was relevant to its legality .
Though Trump for President v. Cegavske ( the named defendant is Barbara Cegavske , Nevada ’ s secretary of state ) targets several provisions of Nevada ’ s election law , its most significant attacks focus on two provisions — the provision @ @ @ @ @ @ @ , and a provision requiring the state ’ s two most populous counties to have a higher minimum number of polling places than less populous counties .
It ’ s not hard to guess why Trump wants late-arriving mail-in ballots to be tossed out .
Multiple polls have shown that Biden voters prefer to vote by mail , while Trump voters are much more likely to vote in person .
Trump has spent the past several months attacking states that try to make it easier to vote by mail — though he recently @ @ @ @ @ @ @ fine because “ Florida ’ s got a great Republican governor.
” In any event , Trump ’ s lawsuit suffers from several fundamental flaws .
Some of its arguments rely on federal statutes that most likely can not be enforced through a lawsuit brought by a private party .
Others rest on speculation about how certain provisions of AB4 will be implemented .
Important prongs of Trump ’ s legal arguments rest on the Supreme Court ’ s decision in Bush v. Gore ( 2000 ) , an opinion that explicitly states @ @ @ @ @ @ @ present circumstances ” and therefore should not be relied on by future courts .
And beyond that , at least some of Trump ’ s arguments would lead to sweeping progressive results that he probably would not like , if they were embraced by federal courts .
Trump would not like the implications of his own legal arguments AB4 requires all Nevada counties to have at least one in-person early voting site in every county and at least one in-person polling place on Election Day .
Only two Nevada counties have more than @ @ @ @ @ @ @ are required to have additional polling sites .
Washoe County ( Reno ) , with nearly 500,000 residents , must have at least 15 early voting sites and 25 sites on the day of the election .
Clark County ( Las Vegas ) , with more than 2.2 million residents , must have at least 35 early sites and at least 100 on Election Day .
The Trump team claims this arrangement is unconstitutional and relies heavily on Bush v. Gore to make its case .
One of the ironies of Bush v. @ @ @ @ @ @ @ actually took its own holding in that case seriously , Bush would have been one of the most progressive election law decisions in American history .
The specific issue in Bush , which effectively handed the presidency to George W. Bush , concerned a recount of the ballots cast in Florida ’ s extraordinarily close 2000 presidential contest between Bush and Democrat Al Gore .
The majority in Bush faulted Florida election officials for failing to apply “ uniform rules ” to this recount — an unclearly marked ballot might be counted in @ @ @ @ @ @ @ the same unclear marking might be rejected in another .
This lack of one statewide standard , according to a majority of the justices , injected too much arbitrariness into the recount .
But Bush also contains sweeping language suggesting that any disparate treatment of voters within a state may be constitutionally suspect .
“ Having once granted the right to vote on equal terms , ” the majority concluded in Bush , “ the State may not , by later arbitrary and disparate treatment , value one person ’ s vote over @ @ @ @ @ @ @ was widely criticized by legal scholars is because this expansive approach to voter equality was hard to square with prior , more parsimonious voting rights decisions handed down by conservative justices who joined the Bush majority .
As Laurence Tribe , a Harvard law professor and a member of Gore ’ s legal team in Bush , wrote in 2003 , “ the ‘ right ’ ostensibly protected by the majority in Bush v. Gore seems characteristic of a class of entitlements that has received only reluctant federal protection from the Rehnquist Court.
@ @ @ @ @ @ @ their ordinary practices , their decision to restrict their holding to a single election , and the fact that Bush placed a Republican in the White House all gave a fairly clear impression that Bush v. Gore was an exercise of partisanship and not of legal reasoning .
Moreover , the Supreme Court has since been fairly clear that it doesn ’ t take Bush ’ s approach to voter equality seriously .
In the nearly two decades since Bush was decided , only one Supreme Court opinion has so much as cited @ @ @ @ @ @ @ legal database Lexis Advance .
And that single citation appears in a footnote to a dissenting opinion by Justice Clarence Thomas that was joined by no other justice .
Nevertheless , Trump ’ s lawyers ask the courts to take Bush ’ s expansive approach to voter equality very seriously .
Relying on the strong language in Bush calling for all voters to be treated on “ equal terms , ” Trump ’ s lawyers argue that Nevada ’ s formula for setting the minimum number of polling places in each county is @ @ @ @ @ @ @ where AB4 authorizes only 1 polling place each — have substantially higher numbers of registered voters per polling place ” than the two most populous counties , they claim .
As a threshold matter , this claim is premature .
As the Supreme Court held in Texas v. United States ( 1998 ) , “ a claim is not ripe for adjudication if it rests upon ‘ contingent future events that may not occur as anticipated , or indeed may not occur at all.
’ ” AB4 does not require Nevada ’ s @ @ @ @ @ @ @ place — it provides that those counties must have at least one polling place .
It ’ s possible that once AB4 is actually implemented , rural counties will have roughly the same number of registered voters per polling place as urban counties .
But if Trump is truly serious about implementing a voting rights standard that requires all voters to have equal access to polling sites , Democrats should agree to that deal with enthusiasm .
After the Supreme Court struck down much of the Voting Rights Act in 2013 , many @ @ @ @ @ @ @ these closures disproportionately impact voters of color who tend to prefer Democrats over Republicans .
As a result , voters in large Democratic cities within red states sometimes have to wait hours to cast a ballot .
It ’ s unlikely , however , that Trump really wants Democrats of color in urban centers to be able to vote with ease on Election Day .
It ’ s more likely that he is looking for another decision like Bush v. Gore — a one-off opinion that lifts up a Republican presidential candidate without @ @ @ @ @ @ @ Trump wants to force Nevada to toss out many ballots AB 4 provides that mall-in ballots will be counted so long as they are postmarked by the day of the election and received by the seventh day following the election .
But not all mail is postmarked , and sometimes the date on a postmark is illegible .
Thus , there is a risk that voters will be disenfranchised for completely arbitrary reasons — such as the postmark on their ballot getting smudged while the ballot was being delivered .
Nevada addresses this @ @ @ @ @ @ @ some ballots that arrive without postmarks .
Under a provision of Nevada law that took effect last January , mailed ballots will be counted if they are “ received not more than 3 days after the day of the election and the date of the postmark can not be determined.
” ( AB4 actually makes this provision marginally stricter , by requiring such ballots to arrive by 5 pm on the third day after the election . )
Trump ’ s lawyers argue that this provision is illegal because it conflicts with a @ @ @ @ @ @ @ of President and Vice President shall be appointed , in each State , on the Tuesday next after the first Monday in November.
” At least in theory , a ballot mailed after Election Day might arrive within three days of the election , and it might bear an illegible postmark .
Thus , Trump ’ s lawyers claim , by accepting some late ballots , Nevada could wind up counting ballots mailed after the federally mandated Election Day has passed .
It ’ s a clever argument .
And it is true @ @ @ @ @ @ @ pandemic , few states explicitly allowed ballots that arrived late and without postmarks to be counted .
But there are a number of reasons to suspect that courts will reject this argument .
One problem with Trump ’ s argument is that it is difficult to square with the expansive theory of voter equality that Trump uses to challenge the state ’ s allocation of polling places .
If it is unconstitutionally arbitrary for some counties to have more polling places per voter than others — or , for that matter , if @ @ @ @ @ @ @ counties to use different standards to evaluate unclearly marked ballots than others — then surely it is also unconstitutional to toss out some ballots and accept others based on whether the post office smudged a postmark while the ballot was being delivered .
It ’ s also far from clear that Trump ’ s campaign — or , for that matter , any other private party — is allowed to sue because a state decides to count ballots that are cast after Election Day .
Not all federal laws create a “ private @ @ @ @ @ @ @ private plaintiffs are allowed to bring a lawsuit challenging alleged violations of those laws .
As the Supreme Court explained in Gonzaga University v. Doe ( 2002 ) , “ for a statute to create such private rights , its text must be ‘ phrased in terms of the persons benefited.
’ ” Thus , for example , a statute that reads “ eligible voters shall receive a ballot by mail ” would create a private right of action because the text of this hypothetical statute centers “ eligible voters ” — the @ @ @ @ @ @ @ .
A different statute that provides that “ the state shall provide for a system of voting by mail ” most likely could not be enforced in court because that statute does not even mention the people who would benefit from it .
In any event , the federal statute setting the date of presidential elections ( “ the electors of President and Vice President shall be appointed , in each State , on the Tuesday next after the first Monday in November ” ) is not phrased in terms of the persons @ @ @ @ @ @ @ apply to individual voters , political candidates , or their campaigns .
So it most likely can not be enforced by private plaintiffs in federal court .
There ’ s also a third reason to doubt that Trump will prevail in his effort to toss out late-arriving Nevada ballots .
Though Chief Justice John Roberts , frequently the median vote on the Supreme Court , is often hostile to voting rights claims , he ’ s also signaled that state officials struggling to control the pandemic should be given an unusual amount of @ @ @ @ @ @ @ United Pentecostal Church v. Newsom ( 2020 ) , for example , Roberts sided against a church that challenged a state public health order that only allowed places of worship to reopen at limited capacity .
“ The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement , ” Roberts wrote in his South Bay opinion .
He added that “ our Constitution principally entrusts ‘ [ t ] he safety and the health of the people @ @ @ @ @ @ @ the States ‘ to guard and protect.
’ ” The same logic that led Roberts to defer to state officials who want to prevent Covid-19 from spreading at churches in South Bay may also lead him to defer to Nevada officials who want to prevent Covid-19 from spreading at polling places .
That said , there is never any certainty in this kind of highly political litigation — especially when a Republican president seeks relief from courts dominated by Republicans .
In the short term , the case is assigned to Judge James @ @ @ @ @ @ @ .
However Mahan rules , the losing party will likely appeal to the US Court of Appeals for the Ninth Circuit , which is closely divided between Democrats and Republicans .
And the case may very well be heard by a very conservative Supreme Court .
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On Monday, Nevada Gov. Steve Sisolak (D) signed legislation intended to ensure that voters in his state can still cast a ballot during the Covid-19 pandemic.
Among other things, the new law (known as AB4) provides that registered Nevada voters will automatically receive a ballot in the mail, a common practice in Western states. It also requires the state to provide a minimum number of polling places for in-person voters, both on Election Day and for early voting.
President Trump’s response to this new law was apoplectic.
On Tuesday, one day after AB4 became law, Trump’s lawyers filed a lawsuit on behalf of Trump’s campaign and the Republican Party, seeking to block it.
Their legal complaint in Donald J. Trump for President v. Cegavske is not a model of careful legal argumentation. It claims, for example, that AB4 changed Nevada law to allow mailed-in ballots without postmarks to be counted so long as they arrive within three days of Election Day. In fact, Nevada law already allowed such ballots to be counted. An entire section of the complaint focuses on the fact that AB4 was enacted “on a weekend vote” — the state House approved the bill on a Friday, but the Senate passed it on a Sunday — without explaining how the day of the bill’s passage was relevant to its legality.
Though Trump for President v. Cegavske (the named defendant is Barbara Cegavske, Nevada’s secretary of state) targets several provisions of Nevada’s election law, its most significant attacks focus on two provisions: the provision allowing some late-arriving ballots to be counted and a provision requiring the state’s two most populous counties to have a higher minimum number of polling places than less populous counties.
It’s not hard to guess why Trump wants late-arriving mail-in ballots to be tossed out. Multiple polls have shown that Biden voters prefer to vote by mail, while Trump voters are much more likely to vote in person.
Trump has spent the past several months attacking states that try to make it easier to vote by mail — though he recently claimed that mail-in ballots in Florida are fine because “Florida’s got a great Republican governor.”
In any event, Trump’s lawsuit suffers from several fundamental flaws. Some of its arguments rely on federal statutes that most likely cannot be enforced through a lawsuit brought by a private party. Others rest on speculation about how certain provisions of AB4 will be implemented. Important prongs of Trump’s legal arguments rest on the Supreme Court’s decision in Bush v. Gore (2000), an opinion that explicitly states its decision is “limited to the present circumstances” and therefore should not be relied on by future courts.
And beyond that, at least some of Trump’s arguments would lead to sweeping progressive results that he probably would not like if they were embraced by federal courts.
Trump would not like the implications of his own legal arguments
AB4 requires all Nevada counties to have at least one in-person early voting site in every county and at least one in-person polling place on Election Day. Only two Nevada counties have more than 60,000 residents, and those two counties are required to have additional polling sites. Washoe County (Reno), with nearly 500,000 residents, must have at least 15 early voting sites and 25 sites on the day of the election. Clark County (Las Vegas), with more than 2.2 million residents, must have at least 35 early sites and at least 100 on Election Day.
The Trump team claims this arrangement is unconstitutional and relies heavily on Bush v. Gore to make its case.
One of the ironies of Bush v. Gore is that if the Supreme Court actually took its own holding in that case seriously, Bush would have been one of the most progressive election law decisions in American history.
The specific issue in Bush, which effectively handed the presidency to George W. Bush, concerned a recount of the ballots cast in Florida’s extraordinarily close 2000 presidential contest between Bush and Democrat Al Gore. The majority in Bush faulted Florida election officials for failing to apply “uniform rules” to this recount — an unclearly marked ballot might be counted in one Florida county while a ballot with the same unclear marking might be rejected in another. This lack of one statewide standard, according to a majority of the justices, injected too much arbitrariness into the recount.
But Bush also contains sweeping language suggesting that any disparate treatment of voters within a state may be constitutionally suspect. “Having once granted the right to vote on equal terms,” the majority concluded in Bush, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
One reason Bush was widely criticized by legal scholars is because this expansive approach to voter equality was hard to square with prior, more parsimonious voting rights decisions handed down by conservative justices who joined the Bush majority. As Laurence Tribe, a Harvard law professor and a member of Gore’s legal team in Bush, wrote in 2003, “the ‘right’ ostensibly protected by the majority in Bush v. Gore seems characteristic of a class of entitlements that has received only reluctant federal protection from the Rehnquist Court.”
The conservative justices’ departure from their ordinary practices, their decision to restrict their holding to a single election, and the fact that Bush placed a Republican in the White House all gave a fairly clear impression that Bush v. Gore was an exercise of partisanship and not of legal reasoning.
Moreover, the Supreme Court has since been fairly clear that it doesn’t take Bush’s approach to voter equality seriously. In the nearly two decades since Bush was decided, only one Supreme Court opinion has so much as cited Bush v. Gore, according to the legal database Lexis Advance. And that single citation appears in a footnote to a dissenting opinion by Justice Clarence Thomas that was joined by no other justice.
Nevertheless, Trump’s lawyers ask the courts to take Bush’s expansive approach to voter equality very seriously.
Relying on the strong language in Bush calling for all voters to be treated on “equal terms,” Trump’s lawyers argue that Nevada’s formula for setting the minimum number of polling places in each county is unconstitutional. “Several rural counties — where AB4 authorizes only 1 polling place each — have substantially higher numbers of registered voters per polling place” than the two most populous counties, they claim.
As a threshold matter, this claim is premature. As the Supreme Court held in Texas v. United States (1998), “a claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” AB4 does not require Nevada’s smaller counties to have only one polling place — it provides that those counties must have at least one polling place. It’s possible that once AB4 is actually implemented, rural counties will have roughly the same number of registered voters per polling place as urban counties.
But if Trump is truly serious about implementing a voting rights standard that requires all voters to have equal access to polling sites, Democrats should agree to that deal with enthusiasm. After the Supreme Court struck down much of the Voting Rights Act in 2013, many states started closing polling places — and these closures disproportionately impact voters of color who tend to prefer Democrats over Republicans. As a result, voters in large Democratic cities within red states sometimes have to wait hours to cast a ballot.
It’s unlikely, however, that Trump really wants Democrats of color in urban centers to be able to vote with ease on Election Day. It’s more likely that he is looking for another decision like Bush v. Gore — a one-off opinion that lifts up a Republican presidential candidate without providing any benefits to future voters.
Trump wants to force Nevada to toss out many ballots
AB4 provides that mall-in ballots will be counted so long as they are postmarked by the day of the election and received by the seventh day following the election. But not all mail is postmarked, and sometimes the date on a postmark is illegible. Thus, there is a risk that voters will be disenfranchised for completely arbitrary reasons — such as the postmark on their ballot getting smudged while the ballot was being delivered.
Nevada addresses this problem by creating a safe harbor for some ballots that arrive without postmarks. Under a provision of Nevada law that took effect last January, mailed ballots will be counted if they are “received not more than 3 days after the day of the election and the date of the postmark cannot be determined.” (AB4 actually makes this provision marginally stricter, by requiring such ballots to arrive by 5 pm on the third day after the election.)
Trump’s lawyers argue that this provision is illegal because it conflicts with a federal law providing that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November.” At least in theory, a ballot mailed after Election Day might arrive within three days of the election, and it might bear an illegible postmark. Thus, Trump’s lawyers claim, by accepting some late ballots, Nevada could wind up counting ballots mailed after the federally mandated Election Day has passed.
It’s a clever argument. And it is true that, at least before the Covid-19 pandemic, few states explicitly allowed ballots that arrived late and without postmarks to be counted. But there are a number of reasons to suspect that courts will reject this argument.
One problem with Trump’s argument is that it is difficult to square with the expansive theory of voter equality that Trump uses to challenge the state’s allocation of polling places. If it is unconstitutionally arbitrary for some counties to have more polling places per voter than others — or, for that matter, if it is unconstitutionally arbitrary for some Florida counties to use different standards to evaluate unclearly marked ballots than others — then surely it is also unconstitutional to toss out some ballots and accept others based on whether the post office smudged a postmark while the ballot was being delivered.
It’s also far from clear that Trump’s campaign — or, for that matter, any other private party — is allowed to sue because a state decides to count ballots that are cast after Election Day. Not all federal laws create a “private right of action,” meaning that private plaintiffs are allowed to bring a lawsuit challenging alleged violations of those laws.
As the Supreme Court explained in Gonzaga University v. Doe (2002), “for a statute to create such private rights, its text must be ‘phrased in terms of the persons benefited.’” Thus, for example, a statute that reads “eligible voters shall receive a ballot by mail” would create a private right of action because the text of this hypothetical statute centers “eligible voters” — the people who would benefit from that statute. A different statute that provides that “the state shall provide for a system of voting by mail” most likely could not be enforced in court because that statute does not even mention the people who would benefit from it.
In any event, the federal statute setting the date of presidential elections (“the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November”) is not phrased in terms of the persons benefited — it conveys no rights that apply to individual voters, political candidates, or their campaigns. So it most likely cannot be enforced by private plaintiffs in federal court.
There’s also a third reason to doubt that Trump will prevail in his effort to toss out late-arriving Nevada ballots. Though Chief Justice John Roberts, frequently the median vote on the Supreme Court, is often hostile to voting rights claims, he’s also signaled that state officials struggling to control the pandemic should be given an unusual amount of deference by courts.
In South Bay United Pentecostal Church v. Newsom (2020), for example, Roberts sided against a church that challenged a state public health order that only allowed places of worship to reopen at limited capacity.
“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts wrote in his South Bay opinion. He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”
The same logic that led Roberts to defer to state officials who want to prevent Covid-19 from spreading at churches in South Bay may also lead him to defer to Nevada officials who want to prevent Covid-19 from spreading at polling places.
That said, there is never any certainty in this kind of highly political litigation — especially when a Republican president seeks relief from courts dominated by Republicans. In the short term, the case is assigned to Judge James Mahan, a George W. Bush appointee. However Mahan rules, the losing party will likely appeal to the US Court of Appeals for the Ninth Circuit, which is closely divided between Democrats and Republicans. And the case may very well be heard by a very conservative Supreme Court.