IS ARIZONA A LIBERAL DEMOCRACY?
By James A. Gardner, SUNY Distinguished Professor, State University of New York, University at Buffalo School of Law
James Gardner notes that there is no evidence of the activities often attributed to the “authoritarian’s playbook” in the formal constitutions of the U.S. states. And although he argues that following the 2022 midterm elections, it is “possible that public patience with politicians, policies, and rhetoric that deny longstanding precepts of liberal democracy is running thin,” he warns Americans to be on guard against democratic backsliding in some states engaged in “the manipulation of electoral rules and processes.”
In the last decade or so, nations around the world have experienced a sudden, unexpected epidemic of democratic backsliding. The United States has not been immune from this trend: between 2016 and 2020, the U.S. departed dramatically at the national level from longstanding principles of liberal democracy, joining a global movement toward populist authoritarianism.
Unlike most nations suffering democratic backsliding, however, the United States is a federation, and indeed a highly decentralized one in which the states enjoy significant power and autonomy. Has the federal structure made a difference in the way that authoritarianism and democratic backsliding have spread in the United States?
We normally think of federalism as contemplating subnational variation along many dimensions – ethnic, linguistic, religious, cultural – but can it also accommodate variation in the basic form of political organization? Most federations are liberal democracies, and so are all their subnational units. Is it possible within a single federation for some states or provinces to adhere to liberal democracy while others turn authoritarian?
Based on recent U.S. experience, the answer appears to be yes.
An important preliminary question is: how would we know when a U.S. state is veering toward authoritarianism? What would count as evidence? Globally, the main path toward authoritarianism no longer runs through a quick and decisive military coup. Today’s autocrats tend to take power incrementally, typically acquiring it through open democratic processes and then gradually exploiting weaknesses in the system to concentrate their power and insulate themselves against future dislodgement.
Evidence of authoritarian creep sometimes manifests itself in changes to the formal constitution, most commonly in the form of constitutional amendment or replacement that centralizes executive power, eliminates interbranch checks, and suppresses effective partisan political competition. On the other hand, sometimes precisely such developments occur in direct violation of the constitution, and are carried out through extraconstitutional policy changes that are not reflected in the formal constitutional document.
Sadly, this kind of democratic backsliding has become sufficiently common around the world that comparativists have been able to identify what is sometimes called an “authoritarian’s playbook” – a kind of script or game plan that anti-democratic leaders tend to follow once in power to erode liberal democracy. Political scientist Larry Diamond has developed a detailed version of the playbook that includes the following steps: demonize the opposition as illegitimate and unpatriotic; undermine judicial independence; attack the independence of the media; subdue elements of civil society, like civic associations, universities, and human rights groups; intimidate the business community into ending its support for political opposition; enrich a new class of crony capitalists; assert political control over the civil service; gerrymander districts and rig the electoral rules; and gain control over the body that runs the elections, to further tilt the electoral playing field.
If we look for evidence of these kinds of activities in the formal constitutions of the U.S. states, we find basically nothing. No state constitution has been replaced in nearly forty years, and no recent state constitutional amendment, or even significant state judicial decision, has significantly concentrated power in the executive or eliminated interbranch checks on executive power.
If we examine legislative and policy behavior in the states, however, a very different picture emerges. Consider Diamond’s category of demonization of the opposition – expressing, that is, the sentiment that the political opposition is not fit to exercise power. In North Carolina in 2016, and in Wisconsin and Michigan in 2018, lame-duck Republican-controlled legislatures stripped incoming Democratic governors of powers their Republican predecessors had enjoyed, evidently on the view that no Democrat should have those powers.
Or, consider efforts to undermine judicial independence. Republicans at the nation level bitterly resist the idea that Congress should expand the size of the U.S. Supreme Court, yet in 2016, the Arizona and Georgia legislatures openly engaged in court-packing by increasing the sizes of their state supreme courts to allow Republican governors enough appointments to alter partisan control of those courts. Similarly, a 2019 law gave the Governor of Iowa power to appoint a majority of the judicial nominating commission, eliminating its role as an independent check on gubernatorial power.
Republican-controlled states including Alabama, Arizona, Florida, and Louisiana have imposed crippling budget cuts on their state universities in an apparent attempt to weaken these centers of free and open – i.e., liberal – inquiry. Republican-controlled states have for years waged war on labor unions, the deepest pocket contributing regularly to Democratic candidates for office, and Alabama and Wisconsin have been national leaders in centralizing the suppression of unions by overriding pro-union measures enacted by local governments.
In 2012, Arizona took a remarkable step toward undermining the independence of the civil service by simply ending job protections for government workers. In 2011, Wisconsin simply eliminated all collective bargaining rights for public university employees and health care workers.
But far and away the greatest amount of activity has been in the manipulation of electoral rules and processes. Alabama, Arizona, Georgia, Kansas, and Michigan enacted onerous proof-of-citizenship requirements to register to vote. Ohio and Kansas conducted widespread, but badly inaccurate, purges of voter registration rolls that resulted in disproportionate purging of Democratic-leaning voters. Florida and Texas have enacted severe legal restrictions, with daunting criminal liability, on voter registration drives. Ten states tightened voter ID requirements even though voter impersonation fraud has been shown again and again to be nonexistent. Eight states cut back on early voting or previously extended polling place hours. And an intense effort at partisan gerrymandering in Republican-controlled swing states following the 2010 census produced significant results: in 2012, for example, Republicans won 72 percent of Pennsylvania’s U.S. House seats on 49 percent of the vote, and 75 percent of Ohio’s U.S. House seats on 55 percent of the vote.
While no American state has backslid as far as nations like Hungary, Poland, or Turkey, numerous Republican-controlled states have deployed tactics straight out of the global authoritarian’s playbook, thereby propelling them decisively down the path of democratic backsliding toward authoritarianism. Wisconsin and North Carolina have been the leaders, but Alabama, Arizona, Florida, Kansas, and Texas are not far behind, followed by Georgia, Michigan, Ohio, Pennsylvania, and Tennessee.
Whether these trends have been altered by the 2022 elections remains to be seen. Many candidates from the authoritarian, Trump wing of the Republican Party lost their races. Democrats flipped both chambers of the Michigan legislature, and look to have gained divided control in Pennsylvania. It is possible that public patience with politicians, policies, and rhetoric that deny longstanding precepts of liberal democracy is running thin. On the other hand, successful authoritarians do not necessarily rely on majoritarian support. In Hungary, the ruling authoritarian party so thoroughly rigged the electoral rules that it retained supermajoritarian control of the national parliament on less than half the vote in two consecutive elections. And it is clear both that there is still significant support for illiberal and authoritarian policies among the U.S. electorate, and that this support is intense and persistent. It is certainly too early to pronounce American democracy safe and secure.
[For further details, see James A. Gardner, Illiberalism and Authoritarianism in the American States, 70 American University Law Review 829 (2021).]