Concluding Unscientific Textual Analysis

For those interested in Judge Luttig's oped, see also my @HarvLRev Forum piece, "Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States" https://t.co/uafckmkIx2

THIS is deadly serious stuff.

— Rick Hasen (@rickhasen) April 27, 2022

As promised, I'm coming back to finish this.  I'll try to be succinct, but I have to start with this:

I can think of no one objection, that will possibly be raised against this proposal, unless it should be urged, that the number of people will be thereby much lessened in the kingdom. This I freely own, and was indeed one principal design in offering it to the world. I desire the reader will observe, that I calculate my remedy for this one individual Kingdom of Ireland, and for no other that ever was, is, or, I think, ever can be upon Earth. Therefore let no man talk to me of other expedients: Of taxing our absentees at five shillings a pound: Of using neither clothes, nor houshold furniture, except what is of our own growth and manufacture: Of utterly rejecting the materials and instruments that promote foreign luxury: Of curing the expensiveness of pride, vanity, idleness, and gaming in our women: Of introducing a vein of parsimony, prudence and temperance: Of learning to love our country, wherein we differ even from Laplanders, and the inhabitants of Topinamboo: Of quitting our animosities and factions, nor acting any longer like the Jews, who were murdering one another at the very moment their city was taken: Of being a little cautious not to sell our country and consciences for nothing: Of teaching landlords to have at least one degree of mercy towards their tenants. Lastly, of putting a spirit of honesty, industry, and skill into our shopkeepers, who, if a resolution could now be taken to buy only our native goods, would immediately unite to cheat and exact upon us in the price, the measure, and the goodness, nor could ever yet be brought to make one fair proposal of just dealing, though often and earnestly invited to it.

That's the rebuttal paragraph from "A Modest Proposal."  I taught that essay for years as an excellent example of classical rhetorical form, built on Aristotle's Rhetoric with some useful additions secured over the centuries, like the idea of a rebuttal as a necessary element for a sound argument.  The idea of the rebuttal is to handle any objections to the main argument, and dispose of them handily to prove they are of no consequence and can be disregarded.  Swift, of course, is not the narrator of the "Proposal," although he is it's author.  In this rebuttal paragraph you hear all the arguments the Rev. Dr. Swift was publicly associated with regarding the problem of poverty in Ireland.  His narrator states it in rebuttal, meaning to dismiss all these ideas as foolishness and cant.  Interestingly, it works pretty well for that purpose.

Let me digress on the strength of the argument in "Proposal" for a moment.  In the late 17th century Swift's narrator is analyzing the problem of poverty from what we would today call a "free market capitalism" position.  The problem as stated is that the poor have nothing to sell (it was hardly a service economy in Ireland at the time).  What could be sold was labor (service, or more properly, servitude), one's body (prostitution), or goods.  The poor have no goods to sell, and even Swift wouldn't satirize the public virtue of prostitution, so all that's left is finding something the poor have which can be sold.  And, according to the opening of the essay, what the poor have in abundance, and can't afford in economic terms, is children.  The argument proceeds to treat the children as livestock, a source of food just like sheep, cattle, and pigs.  It's an inhuman proposal, but at the same time perfectly sound reasoning from an economic point of view (I will point out that, at the time, economics was still considered a branch of ethics.  Having severed that root, it's even easier to see this as "market driven" economic analysis today.)  The rebuttal paragraph, then, is an offering of solution that don't involve cannibalism and slaughtering infants as if they were calfs harvested for veal.

You'll note the first solutions involve governmental (i.e., legal) solutions:   "Of taxing our absentees at five shillings a pound: Of using neither clothes, nor houshold furniture, except what is of our own growth and manufacture: Of utterly rejecting the materials and instruments that promote foreign luxury."  On that middle one, let me explain that England controlled Ireland, and wouldn't allow the manufacture of clothes or furniture in the Emerald Isle.  That had to be purchased from English makers and merchants, the better to keep the money in England.  The industrial revolution didn't cure that; the 19th century was the century of the potato blights (four in all, if memory serves) and the Irish diaspora that gave rise to the romantic "Irish rover" figure.  This compares to Mr. Hasen's solutions, which start with legal remedies.

He wants to improve accountability and audit capacity (as well as chain of custody) by requiring all ballots be on paper, which leaves a trail.  Makes sense to me; my ballot is paper now, because I vote by mail.  The simple solution is to require all voting be conducted by mail-in ballot.  This won't satisfy the people who do vote by mail (like Trump) but complain that the other guy's ballot has been interfered with; if they don't like the outcome, that is.  Really nothing you can do about that except not give it any credibility.  But that raises another issue, and raising that issue is getting ahead of ourselves; so leave it there a moment.

The next proposal:

Rules Limiting the Discretion of Those Who Certify the Votes, Including Congress. — Transparency and related rules minimize the risk of subversion by those who collect and tally the votes. A different set of actors is involved in certifying the vote totals. Depending on the state, this certifier may be a state or county election board or some other official.  When it comes to the presidential election, certification happens first on the state level and then Congress counts the certified votes.

Again, perfectly sound, and something quite capable of being implemented by law.  Here, in quick summary, are the other three proposals:

3. Rules Limiting the Overpoliticization of Election Administration, Especially by State Legislatures. — 

4. Rules Increasing the Criminal Penalties on Those Who Tamper with Federal Elections or Commit Violence or Intimidation of Voters, Elected Officials, or Electoral Candidates. — 

5. Rules Countering Disinformation About Elections, Particularly Disinformation About When, Where, and How People Vote.

That's just the topic sentences for each section.  I'm not that happy with no. 4; the carceral state is a terrible engine for enforcing social purposes, and besides, "intimidation of voters" is almost an American virtue.  No, it's not, I'm being sarcastic.  But increasing penalties is not really the problem.  Texas, for example, just increased penalties against election workers (or others) who interefere with "poll watchers" on Election Day.  We could just go back to regulating, even banning, poll watchers, and achieve the desired effect.  But that's quibbling.

It's after this that we reach the other part of Swift's narrators rebuttal.  Let me go back to that a moment so you know what I mean:

Of curing the expensiveness of pride, vanity, idleness, and gaming in our women: Of introducing a vein of parsimony, prudence and temperance: Of learning to love our country, wherein we differ even from Laplanders, and the inhabitants of Topinamboo: Of quitting our animosities and factions, nor acting any longer like the Jews, who were murdering one another at the very moment their city was taken: Of being a little cautious not to sell our country and consciences for nothing: Of teaching landlords to have at least one degree of mercy towards their tenants.

Yes, the anti-semitism there is offensive.  We can overlook it and keep the rest, arguendo anyway.  Noble, even worthy sentiments, for the most part, and certainly these would promote an improvement in society as a whole.  As a guy who advocates the vision of the holy mountain from Isaiah and the basilea tou theo of Jesus of Nazareth, I'm hardly one to criticize utopian visions.  But they don't really attack the mercantilism of the "modest proposal," which is written to attack itself (and does a far better job than these offerings do). I'm not sure they belong in an HLR article, either:

Law can only go so far in protecting American democracy against election subversion, and new laws must be enacted and not just proposed if they are going to counter the risk. Political organization is necessary to pass those laws and to reinforce norms respecting the rule of law and fair election processes.

True, all too true.  But:

Political organization can help advance the proposed legal changes advocated above. For example, aside from a paper-ballot requirement, no anti–election subversion provisions appeared in the original version of the For the People Act of 2021, the main Democratic Party–backed election reform measure being considered in the current Congress.

But the Democrats still prove the adage ascribed to Will Rogers: "I don't belong to an organized political party.  I'm a Democrat."  And the GOP is entirely the "party" of Trump.  Both parties largely exists as legal entities with guaranteed access to the ballot (they set the laws up that way in all 50 states), but don't exist at all as they did in the days of, say, LBJ (who, political and legislatve genius that he was, wouldn't know how to function in todays' Senate).  Political organizations, in short, are busy advancing the conspiratorial nonsense of Q-Anon, on one side.  Why they would advocate the legal changes proposed is a mystery, since it would be tantamount to advocating for access to the ballot by all eligible voters.  And the GOP is decidedly not in favor of that at the moment; nor would it support "leaders" who tried to take the party in that direction.

If you can't see that without further argument, I don't know what to say to you.

Political opposition must be mounted against those who embrace the false claim that the 2020 election was stolen from President Trump and who run for office or seek appointment to run elections. Spreading these false claims shows rejection of a commitment to the rule of law, and those who share the false claims deserve to have their positions on the 2020 election relentlessly challenged during their campaigns. If any of these persons attains office, then oversight from more fair-minded, responsible people will be urgently required. Getting such oversight may require new legislation, lawsuits, or even peaceful protests.

I think we now see evidence that is happening .  Whether it is actually robust enough to toss out the maniacs holding office in the GOP, however, is....doubtful.  And what, in fact, would trigger such a "populist" reaction?  I have to admit I have absolutely no idea.  I still remember when giving 18 year olds the vote was going to change politics in America forever, and usher in a sea-change because of the overwhelming number of new voters who would upset all the old electoral assumptions.

Yeah, that was a Constitutional amendment.  What really changed?

Indeed, the ultimate safeguard of American democracy during this period of democratic instability may be millions of people taking to the streets for peaceful protests to demand fair vote counting and adherence to the rule of law. In 2020, it was enough to avoid election subversion that some heroes stepped up to assure that elections ran smoothly, votes were fairly counted, and a peaceful transition of power took place. Next time, a few heroes in the right places may be inadequate. I fear that only concerted, peaceful collective action against an attempt to subvert election results stands between American democracy and nascent authoritarianism.

That could have been said (and has been said) at almost any time in the past 220-odd years.  Dese are de conditions dat prevail.  It's truly a wonder tall trees ain't layin' down.