The prelude of the 2020 election is marred by dark projections of large-scale violence that could disrupt voting or a prolonged count of mail-in ballots requested due to the COVID-19 pandemic. Academics agree that this situation is unlikely to be an isolated occurrence. Rather, extreme polarization risks making violent elections a new norm in American life. Even if violence fails to materialize in November 2020, it is still worthwhile to engage in legal scenario planning to ask the question: What if? This Essay sketches a preliminary, incomplete answer to that question from the perspective of courts.
Taking as an example a complaint seeking to enjoin the Trump campaign from inciting violence, this Essay begins from the assumption that existing Fourteenth Amendment doctrine, forged in the era of 1960s desegregation, lacks a register to fully conceptualize the novel assaults on American democratic institutions today. Specifically, courts tend to employ a strict individual rights focus, which lacks the ability to conceptualize assaults on democracy that do not intentionally target any particular voter and, uncomfortably, asks courts to step into an ex ante regulatory role more familiar for a federal agency than the judicial branch. To fill that gap, courts could learn from international democratic backsliding. Specifically, the concept of a “strategy of tension” lends analytical rigor to scenarios in which regimes actively seek to foment civil unrest, cracking down on opponents and encouraging extrajudicial violence. This framework allows one to recognize such harms as injuries to democracy itself that endanger the supreme democratic principle of the state’s monopoly on the legitimate use of violence, a foundational principle of liberal governance. With that conceptualization in hand, this Essay concludes by forwarding a potential role for courts “in the breach” as exercising emergency powers to stabilize democracy under extreme stress.
