Democracy by Deterrence: Norms, Constitutions, and Electoral Tilting

The forthcoming article “Democracy by Deterrence: Norms, Constitutions, and Electoral Tilting” by Gretchen Helmke, Mary Kroeger and Jack Paine is summarized by the author(s) below. 

In contemporary democracies, backsliding typically occurs through legal machinations and electoral distortions, rather than via military coups, mass repression, or cancelling elections outright. Despite circumscribing legally acceptable actions, formal constitutions are inherently incomplete contracts. Self-enforcing democracy requires that political parties refrain from exploiting legal opportunities to tilt electoral rules. Absent well-established norms of mutual constraint and forbearance against playing “constitutional hardball,” words on paper cannot save democracy from unscrupulous politicians. Instead, incumbents can gradually subvert electoral competition while using a constitution to provide a veneer of legality. 

Rich descriptions of the descent into constitutional hardball within the United States and other democracies abound, yet we know far less about the strategic underpinnings of mutual forbearance and its breakdown in the face of constitutional opportunities for democratic retrogression. Using a formal model, we argue that informal norms of mutual forbearance and formal constitutional rules are fundamentally intertwined via a logic of deterrence. By circumscribing how far each party can legally bend the rules, legal bounds effectively create reversion points if mutual forbearance breaks down. If legal bounds are symmetric between parties, they deter electoral tilting by making credible each party’s threat to punish transgressions by the other. If legal bounds become sufficiently asymmetric, however, such deterrence collapses and the foundations for forbearance crumble. Asymmetries emerge when (a) some social groups are more vulnerable than others to legally permissible electoral distortions and (b) favored and disfavored groups sort heavily into parties.

We apply this mechanism to understand the erosion of forbearance in the United States in the post-Civil Rights era, specifically analyzing gerrymandering and voting rights. This case meets a key scope condition of our formal model—high fidelity to an established, albeit still evolving, constitutional order—while also featuring relatively permissive legal scope for tilting electoral rules. Unlike many modern constitutions, the U.S. constitution was not founded to deliberately favor a particular party. Yet the contemporary American constitutional order fails to proscribe certain undemocratic practices that disproportionately restrict the electoral clout of certain social groups. For example, contemporary constitutional law prohibits parties from writing statutes that explicitly target individuals based on their partisan affiliation, but allows for gerrymandering, which effectively undermines the collective voting influence of urban voters. Similarly, parties cannot directly target voters based on race or income, but can disenfranchise ex-felons and pass voter ID laws, which disproportionately reduce voting access for minorities and poorer voters.  

Asymmetries at the level of social groups have engendered legal asymmetries between the major parties because of the extreme sorting of racial, economic, and other demographic groups into the Democratic and Republican parties in recent decades. Thus, we explain how the widely studied phenomenon of sorting transforms an ostensibly party-neutral constitution into one that simultaneously blesses one party with more leeway for manipulation and less exposure to retaliation. These are precisely the conditions that make mutual forbearance against democratic backsliding difficult to sustain. We combined and extended state-level data to document the emergence of asymmetric legal opportunities to tilt the electoral playing field between the Republican and Democratic parties and the divergence in partisan strategies in recent decades. Our goal is not to rule out all alternative mechanisms, but instead to highlight an underappreciated strategic dynamic that helps to explain why, when, and how the two major parties’ support for basic democratic principles has diverged. 

About the Author(s): Gretchen Helmke, Professor, Department of Political Science at University of Rochester, Mary Kroeger, Assistant Professor, Department of Political Science at University of North Carolina-Chapel Hill and Jack Paine, Associate Professor, Department of Political Science at University of Rochester. Their research “Democracy by Deterrence: Norms, Constitutions, and Electoral Tilting” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science. 

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The American Journal of Political Science (AJPS) is the flagship journal of the Midwest Political Science Association and is published by Wiley.