Restricting the Ballot, to Save Democracy
This is a student post, in collaboration with the University of Chicago’s Democracy Initiative.
Trump’s failure to release his tax returns during the 2016 election shattered a presidential norm dating back 40 years, but state legislators are fighting back. In more than 20 states, bills have been introduced which would require presidential candidates to release five years of tax returns in order to appear on primary and general election ballots. Proponents of these ballot restriction bills believe that they are good not just for the Democrats, but also for democracy. But it is worth asking whether these restrictions, if passed, might do more to erode democratic norms than to save them.
A norm is an informal agreement between political actors, not codified into law, to engage (or not engage) in certain practices. There is relatively widespread agreement that American institutions could not survive on their own without the norms currently holding them together. So it might seem that the Democrats’ proposed ballot restrictions are entirely justified, since by compelling candidates to release tax returns, they are formalizing a longstanding democratic norm. However, the act of placing such limits on candidates may actually violate another norm.
According to Steven Levitsky and Daniel Ziblatt, one of the most important norms for democracy is “forbearance”: the idea that political actors should refrain from deploying every technically legal weapon at their disposal to win political victories. Forbearance is what keeps the FBI a neutral law enforcement agency rather than a tool to investigate political opponents. Similarly, forbearance keeps the IRS from being used to pursue political opponents for tax-related crimes. When political actors abandon forbearance, their opponents perceive them to be more threatening, leading them to eschew forbearance as well. Such a cycle has dangerous impacts on the democratic alternation of power.
Placing substantive limits on the candidates that can appear on a ballot has not yet been widely attempted in the United States. By abandoning precedent to hinder the reelection of a Republican president—Democrats have openly admitted that the restrictions are aimed at Trump—rather than championing changes in federal campaign law (the conventional approach), the Democrats are putting forbearance aside, which may lead to a vicious cycle. Republicans may might easily choose to retaliate by devising their own requirements for presidential candidates. For instance, they could raise the minimum age for presidential candidates, harming younger progressives. Alternatively, they might require that a person be at least a third generation American for them to appear on the ballot, privileging more conservative white Americans. Though intended to strengthen democracy through accountability, ballot restrictions may end up transferring control of presidential elections from the American people into the hands of potentially irresponsible state legislatures.
Evidently, it would seem, the Democrats’ move is a risky one for democracy in the long term. Certainly, the norm of releasing tax returns is important for voters to make an informed choice on election day. There are good reasons to believe that Trump’s returns might reveal that he does not pay federal taxes, or even that he is guilty of fraud. However, given its importance, it appears that the Democrats would be wrong to violate forbearance just to enforce the norm of presidents releasing their tax returns. And since not a single state considering these ballot restrictions voted for Trump in 2016, it seems that the Democrats have nothing to gain and everything to lose.
At the same time, it has been common for analysts to conclude that the norm of forbearance is already weak in the United States. For years, Republicans used shocking yet legal maneuvers to counter President Obama’s agenda at every possible turn, most famously using their control over the Senate to deny him the constitutional right to name a Supreme Court justice. Forbearance is also under attack by the White House, as Trump nominates blatant loyalists to lead neutral agencies (for instance William Barr to spearhead the Justice Department).
Meanwhile, Democrats have made every effort to respect the norm of forbearance, and this has not ended well for them. Republicans for instance exploited Democrats’ respect for an informal senatorial norm in order to force Obama to appoint conservative judges. Then, once their candidate ascended to the White House, they eliminated the rule altogether. If Republicans obstinately refuse to join Democrats on the high road, forbearance might not actually be worth protecting in the current context, and perhaps ballot restrictions are justified.
However, if Democrats choose to depart from the norm of forbearance in the case of ballot restrictions, they would have to embrace it as a general strategy. As mentioned above, abandoning forbearance in any capacity eventually leads to its complete disintegration. So the choice is between a one-sided respect for forbearance (the status quo) and a political landscape in which it has been abandoned altogether.
As it turns out, abandoning forbearance altogether may actually be good for democracy. Some democratic theorists have pointed out that extreme polarization and the norm-breaking that goes with it can occasionally be healthy. If both sides fear what the other might do after forbearance disintegrates, they may be more likely to work together to compromise on an improved democratic structure that codifies the important norms into laws, which are more easily enforced. This is unlikely to occur if only one side has abandoned forbearance, because that side has nothing to fear from the other and will resist structural changes.
Ballot restrictions (independently of what they are used to enforce) could be a powerful tool in swing states, as well as states with important primaries like Iowa and New Hampshire. Trump did not win in any states with democratic legislatures (as of 2017), so restrictions might have little immediate effect on the Democrats’ prospects. However, ballot restrictions could be established to prevent blue states from flipping red during future presidential elections. Furthermore, depending on when the period of no forbearance begins, Democrats might actually be in a more favorable position on the state level than they are now.
These potential advantages raise the question of which forms of ballot restrictions Democrats should actually be endorsing. Rather than pursuing Trump’s tax returns, Democrats should focus on the biggest threats he poses to democracy, refusing to print ballots featuring candidates who attack the free press, question the legitimacy of their opponents, or incite violence. Certainly, increased financial transparency bolsters democracy, but it could easily be argued that the other restrictions mentioned above would be a greater improvement to democracy and should thus be prioritized.
Perhaps more importantly, it is crucial for Democrats to ensure that the public sees their departures from forbearance as legitimate. Though a substantial majority of Americans would like to see Trump release his tax returns, the ardor with which Democrats have been pursuing this goal could make these ballot restrictions appear to be antidemocratic bills of attainder, singling out a political opponent. There is hardly an epidemic of politicians refusing to release tax returns: after all, Trump’s decision did break a 40-year precedent, not to mention the fact that half of the contenders for the 2020 Democratic nomination have already released their tax returns despite being more than a year and a half away from the election. Conversely, seeking to enact ballot restrictions that more palpably and impartially bolster democracy would not only make Democrats look good to the electorate, but might even put significant pressure on Republicans to enact similar restrictions lest they be labeled antidemocratic.
Whether or not the Democrats should seek to implement ballot restrictions is largely equivalent to the question of whether or not they should abandon forbearance. Though many commentators believe this is indeed the proper path to take, the question is by no means settled, and other democratic theorists like Levitsky have argued that Democrats would do well to keep the American political system intact for the not-so-distant future when demographic shifts render the current Republican party obsolete. Ultimately, the question of whether Democrats should use ballot restrictions comes down to whether or not Democrats, and Americans more broadly, are satisfied with the status quo. One thing seems clear, however: whether or not ballot restrictions are in fact a worthy tool for Democrats, this first round of restrictions is misguided. If the Democrats choose to enact ballot restrictions, they must be part of a larger offensive against forbearance for the sake of a better democratic system, and should seek to attack the greatest threats facing democracy wherever possible.