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James Gardner sitting at a table, as part of a discussion panel.

Democracy by Design

James Gardner’s new book on elections, power and democratic institutions

During his 25 years on the UB Law faculty, James Gardner built a distinguished career as a teacher and academic leader. A popular professor who also served as interim dean, Gardner earned an international reputation for his scholarship in constitutional law and election law. Named a SUNY Distinguished Professor of Law in 2011 and the Bridget and Thomas Black Professor of Law in 2013, he is widely recognized as an authority on election law and remains one of the field’s most frequently cited scholars.

In his new book, Advanced Introduction to Election Law (Edward Elgar Publishing), Gardner, now professor emeritus, makes the case that wishing for democracy does not create it. As he writes in the book’s preface, “a social commitment to democracy must be operationalized through the deliberate and laborious creation of laws and institutions.”

The book also confronts the growing problem of democratic backsliding.

“Around the world,” Gardner writes, “seemingly stable democracies are sliding toward the very authoritarianism that liberal democracy was invented to replace.”

We spoke with Gardner about what prompted him to take a fresh look at election law, the challenges facing democracy today, and the issues surrounding voting and elections in the United States that concern him most.

Cover of the book Advanced Introductions to Election Law.

Purchase the publication through Edward Elgar Publishing.

In the preface to your book, you write that "wishing for democracy does not create it." What do you mean by that, and how important are election laws in determining whether a democracy succeeds or fails?

No form of government implements itself. A people may easily reach agreement on the form of government they wish to live under, but that decision can be implemented only through a much tougher process of agreeing on the laws which will structure the process. I might wish for a monarchy, but that decision immediately raises the questions of who will be king, and how we will recognize that person. Monarchies today have elaborate legal regimes governing succession to the crown. It’s the same with democracy. We may agree that we want to rule ourselves democratically, but we then face the much more complex and controversial task of deciding what kind of democracy we want, operating under what set of rules. The content of those rules, set into motion in a particular time and place, may have a considerable impact on whether democratic self-governance succeeds or fails.

The book's final chapter addresses democratic backsliding—the process by which established democracies gradually become more authoritarian. How serious is that threat in the United States today? Are our election laws and institutions strong enough to resist it?

I believe the threat is real and extremely serious. According to some polling data, support for democracy, especially among young people, has declined precipitously. Estimates of the proportion of Americans who support “a strong leader who does not have to bother with Congress and elections” range between about 24 and 44 percent. An authoritarian has been twice elected to the presidency. Even if pro-democracy parties and candidates regain control of the federal government, evidence from abroad suggests it may be impossible completely to isolate and neutralize the authoritarian threat going forward.

Money has long played an enormous role in American politics, and you describe its influence as one of the most pressing problems facing modern democracies. Have we reached a point where wealth has too much influence over who gets elected and whose interests are represented? What reforms might make a difference?

We have definitely reached a point where the rich have way too much influence. They have always had disproportionate influence, but the displacement of traditional media by modern social media has created an opportunity for the rich to leverage their influence beyond previous levels. At the same time, there seems to have been an ethical breakdown among the richest Americans, who no longer feel themselves leaders of, or even part of, the larger community. The days when an Andrew Carnegie would fund the creation of thousands of public libraries are long gone. Today, the rich seem to be in it for themselves. I think getting serious about using the tax system to redistribute obscene wealth from private to public hands may be the only way to address the problem.

You wrote three previous published books about election law. What made you decide to write a new one?         

These books serve very different functions. The first is a casebook intended for classroom instruction. The second is a monograph exploring the role of political campaigns in American politics and the ways in which law structures the nature and pathways of campaigns. The third was an edited volume on comparative election law designed to illuminate the many different ways in which democratic societies have chosen to rule themselves.  The new book is, as the title says, an “Advanced Introduction to Election Law.” It’s meant to lay out, as concisely and compactly as possible, the main issues and variations in election law around the world, but in a way that is useful for people who already have some understanding of the basic concepts. When the publisher approached me about writing the book, the challenge of pulling together a career’s worth of thinking on the subject was too delicious to decline.

You've recently retired from teaching after a distinguished academic career. What do you miss most about the classroom, and what are you looking forward to now? Do you expect to continue researching and writing about election law?

I have always thought of my principal courses, Constitutional Law and Election Law, not so much as specific bodies of doctrine that my students should master, but more as a kind of advanced civic education for lawyers.  Very few lawyers will ever encounter in their practices a question in either of these fields. However, lawyers occupy an extremely important position in civic life, and it is vitally important that they understand, in the broadest terms, the system they take an oath to uphold. I will miss most guiding my students in their professional contemplation of the most fundamental aspects of popular self-rule under a democratic constitution. I do plan to continue writing about election law, with new editions of the casebook and the comparative law volume already on my schedule.