Bolstering Democratic Norms with Ballot Restrictions

California escalated the battle over President Donald Trump’s tax returns on July 30, when Governor Gavin Newsom signed into law a bill requiring presidential hopefuls to release their tax returns in order to appear on primary ballots. More than 20 other state legislatures have introduced similar bills regarding both primary and general election ballots. Democrats have been fighting to obtain Trump’s tax returns because financial transparency bolsters democracy, allowing voters to gain a more accurate picture of the people they elect. So, why did Jerry Brown, California’s previous Democratic governor, veto similar legislation in 2017?

Uncertainty concerning the constitutionality of ballot restrictions is nothing new. Opponents of the measure cite U.S. Term Limits v. Thornton, in which the US Supreme Court ruled that states could not deny ballot access to candidates for US Congress through substantive limits or requirements not found in the Constitution.1U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). They would extend that reasoning to presidential candidates. On the other hand, ballot restriction supporters cite Bush v. Gore, in which the Supreme Court ruled that states have ultimate power in determining the manner of choosing presidential electors.2Bush v. Gore, 531 U.S. 98 (2000). Using this case, supporters of ballot restrictions would argue that, if states can choose their presidential electors or have their population vote directly for president, surely a hybrid solution is acceptable. There is merit to both arguments.

However, Brown cited a deeper concern with the legislation: the potential for a “slippery slope.” In other words, requiring the release of tax returns today might lead to even more stringent requirements tomorrow. Brown also expressed concern over requirements for appearing on the ballot being abused by whichever party is in power, a rather worrying prospect for democracy.

Though Brown’s apprehensions were justified, here, I will seek to explain that similar ballot restrictions may leave a greater opening for moderate Republican candidates to challenge Trump in a 2020 Republican primary, and what such a development could do for US democracy. Ultimately, the merits of the California ballot restriction and similar approaches boil down to whether acting now instead of waiting is best for democracy in the long term.

Democratic norms

In order to better inform a discussion on the push for ballot restrictions, we must first cover a hotly debated topic among democratic theorists: democratic norms. According to Steven Levitsky and Daniel Ziblatt, the survival of democracy is dependent on two unwritten democratic norms: forbearance, or the restraint from using every technical legal weapon at one’s disposal to win political victories (the opposite of forbearance being “constitutional hardball”); and mutual toleration, or the acceptance of political opponents as legitimate actors who do not pose an existential threat.3Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Penguin-Random House, 2018), 9.

Levitsky and Ziblatt further explain the importance of preserving these norms. For example, when political actors respect forbearance, they keep the FBI neutral instead of turning it into a tool to investigate political opponents, and they do not use the IRS to pursue political opponents for tax-related crimes. These are two of the many requirements for a democratic alternation of power. Mutual toleration, on the other hand, fosters the cooperation necessary for democracy to function, while also reducing the incentive to engage in constitutional hardball. These norms are mutually reinforcing; if political opponents begin to see each other as existential threats, they will be more likely to violate forbearance, further decreasing mutual toleration as hardball tactics engender fear and distrust. This is the “slippery slope” that Brown feared. Other theorists have echoed this line of reasoning, pointing out that there are very few built-in safeguards in US institutions that prevent them from being used as tools of authoritarianism rather than democracy.4→Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (Chicago: The University of Chicago Press, 2019), 163.
→Robert C. Lieberman et al., “The Trump Presidency and American Democracy: A Historical and Comparative Analysis,” Perspectives on Politics 17, no. 2 (2019): 470–479, 475.

Scholarship on democratic norms has grown in interest beyond academia because many democratic theorists agree that, in the United States, democratic norms are currently in a state of considerable weakness, and that Republicans are largely responsible. Faced with an increasingly diverse United States, they have chosen to undermine the democratic process by playing constitutional hardball, limiting access to the ballot box, gerrymandering, and gutting the Voting Rights Act, rather than redefining themselves as a more diverse (and less extreme) coalition.5Levitsky and Ziblatt, How Democracies Die, 174 and 183.

Some, like political scientist Corey Robin, have argued that, for the health of democracy, Democrats should respond by breaking norms as well. They argue that a slippery slope is unavoidable given Republicans’ obstinacy, and point out that democratic breakdown can sometimes forge an even stronger democracy, as was the case with the American Civil War, which Robin argues began the process of creating American democracy. Though this may be true, it is worth noting that such a breakdown could easily go the other way. Furthermore, Levitsky and Ziblatt see another (far less violent) path. They argue that opposing factions can coalesce into pro-democratic fronts which have historically succeeded in restoring or preserving democracy, such as the cases of Chile and West Germany. However, such a peaceful resolution is dependent on both Democrats and Republicans abiding by the norm of mutual toleration, choosing to respect each other and bridge the ideological gap rather than pursuing narrow political gains.

Ballot restrictions: The argument against

By failing to release his tax returns during the 2016 election, Trump shattered a presidential norm dating back 40 years. Since democratic norms ought to be safeguarded, particularly a norm ensuring financial transparency, the Democrats are justified in their quest to obtain Trump’s tax returns. However, the ends do not justify the means. Indeed, abandoning precedent to hinder the reelection of a Republican president rather than championing changes in federal campaign law (a more conventional approach) violates forbearance.

The California ballot restrictions law and similar proposals should not be seen as tradeoffs between different broken norms. The relative importance of both norms is likewise irrelevant. Rather, the law is a major victory scored by the liberal faction which is in favor of stepping off the “high road” and meeting Republicans eye to eye.

This action, especially if it is upheld in court, could be enough to cause Republicans to step up their norm-breaking in retaliation. Hypothetically, they could pass ballot restrictions in swing states with Republican legislatures (like Florida), but targeting the general election instead. Such restrictions could require that candidates be vetted (for example, for something ambiguous such as “moral conflicts of interest”) by a committee of state lawmakers before appearing on the ballot. State legislatures could then appoint enough Republicans to these committees to effectively block Democrats from ever winning in their states. This is just one of the many possible escalations the Republican Party could choose from.

The California ballot restriction represents a fundamental departure from the Democratic Party strategy. As discussed above, continuing on this path into a new era where both parties abandon norms might enhance democracy, but probably at a heavy and unnecessary cost.

Ballot restrictions: The argument for

Despite these dangers, there is also a significant argument in favor of the California ballot restriction. Levitsky and Ziblatt believe the best way to prevent a further erosion of norms is for the Republican Party to rebuild itself into a more moderate coalition cutting across racial, religious, and class lines.6Levitsky and Ziblatt, How Democracies Die, 223. The California ballot restriction could provide a significant opening for such a development to occur in the 2020 election.

Indeed, California sent 172 of the 2,472 delegates to the Republican National Convention (or nearly 7 percent) in 2016. Assuming a similar proportion in 2020, this could give a moderate Republican challenger an almost guaranteed fraction of the delegates at the convention. Such an edge could give moderate Republican voters hope that Trump might be defeated before the general election, which could cause them to turn out in sufficient numbers in other states to make that hope a reality.

Such a course of action would almost certainly require significant support from Republican leadership. The crucial point is that the power of the California ballot measure is not to force Trump out of office, but rather to give the Republican leadership greater leverage should they choose not to support him. In other words, this gives the Republican Party a chance to reinvent itself four years ahead of time into the moderate coalition Levitsky and Ziblatt describe, which could significantly bolster the health of American democracy.

A question of time

The California ballot restriction law presents an inherent risk to the stability of American democracy, while also giving Republicans the opportunity to reinvent themselves as a broader and more inclusive party as early as 2020. So far, Republicans have not seized on the opportunity—the three Republican candidates who have come forward to challenge Trump have been met with canceled primaries—but it is not too late.

The merit of the California law (and the other ballot restrictions under consideration around the country) essentially boils down to the question of whether giving the Republican leadership the chance to reinvent themselves four years earlier is worth the risk. Levitsky argues the Republican base is a shrinking demographic group, which cannot help but crumble electorally under its current form, and that time is working in favor of American democracy.7Steven Levitsky, face-to-face conversation with author, June 3, 2019. If this is the case, ballot restrictions might be a Pandora’s Box not worth opening.

However, time may unfortunately be against democracy. Republican efforts to limit access to the ballot box may counteract the changing demographics, keeping the party in power for the foreseeable future and continuing to erode democracy over time.8Levitsky and Ziblatt, How Democracies Die, 207. If this strategy is successful, every passing year will further entrench the Republican faction in favor of constitutional hardball and discredit the moderate Republicans still hoping to reestablish respect for democratic norms. If this is indeed the future for the United States, giving moderate Republican leaders a chance to reassert themselves and reinvent the Republican Party as soon as possible may significantly improve the odds that democratic erosion can be prevented over the long term.

How to respond to a Republican Party with an increasingly authoritarian tendency is still a question of significant debate. This essay has tried to present a clearer picture of the tradeoffs involved in the passing of that legislation. One thing is certain, however: if Republicans do not seize this opportunity to reinvent themselves, or a new coalition does not form to redefine US politics, the California ballot restriction will have been for naught.