Internet Explorer 11 is not supported

For optimal browsing, we recommend Chrome, Firefox or Safari browsers.

Texas and the Dangerous Rise of Vigilante Democracy

New state laws empower citizens to take the law into their own hands when it comes to abortion and elections. They're only the latest manifestation of rage against government itself.

Pro-life protesters stand near the gate of the Texas state Capitol in Austin, Texas.
(Sergio Flores/Getty Images/TNS)
No nation can remain great if its citizens can’t act collectively. Individuals, companies and other entities can band together in many different ways, but as a society, the primary mechanism for resolving disputes and coordinating mass action is government. That model is under severe stress in this country.

Distrust of government is more American than apple pie. There’s nothing new about it. But it’s accelerated in recent decades and is approaching supernova status now. Every week brings fresh examples of school board meetings threatening to devolve into violence due to parental anger about masks; health officials resigning amid harassment and threats of death; or elected officials enduring loud and angry demonstrations outside their homes.

Now governments themselves are engaging in public displays of distrust. Arizonans are still awaiting the results of a months-long audit commissioned by the state Senate, which cast doubts on the veracity of the state’s own election count last November, as well as two official recounts. Republican legislators in other states are increasingly open to similar challenges and post-mortems.

Last week, the nation’s political attention turned to Texas when a new law took effect that deputized citizens to enforce a ban on nearly all abortions in the state. This was meant as a clever workaround, shielding the state from responsibility and legal challenges against the ban. Its initial blessing by the Supreme Court has serious implications beyond abortion, with states seemingly now given permission to nullify other constitutional rights, simply by outsourcing enforcement. “This is a really technical way in which the rule of law just no longer applies,” says Amanda Hollis-Brusky, politics chair at Pomona College in California.

On Tuesday, Texas GOP Gov. Greg Abbott signed a sweeping election bill into law. Among its other provisions, the bill enhances protections for partisan poll watchers, who will now be given free rein at polling places. If they are not, or feel that they are not, they can sue poll workers hired by the government. “Both these laws set up this alternative structure of government,” Hollis-Brusky says. “They invite intensely organized partisan interest groups to basically organize the behavior of citizens and funnel that through the courts rather than the state.”

In that sense, these new Texas laws represent the culmination of the longstanding argument from conservatives that the private sector is superior to government. “There’s an awakening happening in this country. It’s bubbling up,” Missouri GOP Attorney General Eric Schmitt tweeted last week. “Regular folks showing up to school board & city council meetings. They’ve had enough. They want America back & it’s terrifying to the ruling class who want everyone to take orders & be quiet. God bless America.”

But the nation’s founders were distrustful of direct democracy and its potential for mob rule, creating a representative republic instead. American government came equipped with a complex and often frustrating system of checks and balances meant to diffuse and limit power. Outsourcing enforcement of the law circumvents that system.

“What’s unique about what Texas has just done is that they’ve essentially handed over the instruments of the state to private actors,” says Joshua Wilson, a political scientist at the University of Denver. “It taps into the longer history of demonization of the state.”

The New Era of Distrust

With the 20th anniversary of the Sept. 11, 2001, terrorist attacks approaching on Saturday, Americans can reflect on what in retrospect may have been our last great moment of national unity. Old Glory flew everywhere and there was a sense of shared purpose that was exemplified by the bipartisanship of dozens of members of Congress singing “God Bless America” together on the Capitol steps that night.

The sense of shields standing locked together was short-lived, shattered by expansion of the war on terror into Iraq. President George W. Bush failed in his pledge to be a “uniter, not a divider.” Barack Obama burst onto the national stage with his 2004 convention speech arguing against the division of the country into red states and blue states but as president, Obama, like Bush, ended up hated by half the country.

From the time he took office, President Donald Trump was greeted with opposition, millions taking to the streets in protest the day after he took office. During his last year in office, it was mostly citizens on the left who participated in what may have been the largest mass protests in the nation’s history, decrying racism and police violence.

But it’s Americans on the right who seem to be most disaffected at this point, with a Democrat again occupying the White House. The share of Democrats who say they have trust in government is low, at 36 percent, according to the Pew Research Center, but that’s triple the share compared with August 2020, when Trump was still in office.

Last month, Pew released a poll that showed widespread distrust of most major institutions among Republicans. They dislike not just unions, but large corporations; not just higher ed, but K-12 education as well. The only institution that a large majority of Republicans view as having a positive influence on the country is churches.

It’s in this context that Texas chose to shift responsibility away from government (with other states certain to follow suit). For decades, abortion opponents have experimented to see what the courts would let them get away with. “It’s conservatives trying to figure out how they can get what they want and get around existing obstructions,” Wilson says.

When Texas lawmakers moved the locus of action away from government enforcement toward private action, both with abortion and poll watchers, they knew there were actors on their side standing ready to carry out their preferred missions.

“If Republican sponsors of this bill thought that the organization and activity of poll watchers is going to work against Republican candidates, they would not be pushing this,” says James Henson, director of the Texas Politics Project at the University of Texas. “The idea that there’s this group of poll watchers out there, all civic-minded, belies the reality.”

Privatizing the Law

Individuals and companies enforce laws all the time through civil litigation. Think of the countless lawsuits brought under the Civil Rights and Voting Rights acts, or the Americans With Disabilities Act.

But the new Texas laws not only allow private actors to use the courts, but explicitly call for them to do so. In fact, the new laws incentivize them, with the promise not only of advancing an agenda but collecting cash settlements. “In effect, the Texas Legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures,” Justice Sonia Sotomayor wrote in a dissent last week.

The decision is a strong signal that a majority on the court may be willing to overturn Roe v. Wade, perhaps with a Mississippi case it will hear in the coming term. While the implications for abortion rights are obviously enormous, legal scholars are concerned that the court has opened the door for more undermining of constitutional rights by means of copycat laws. It’s not hard to imagine a red state allowing citizens to sue people who perform or facilitate same-sex marriages, for example, or a blue state allowing citizens to sue gun sellers.

“It’s broader participation by citizens on some of these issues, but also an assertion by citizens of a right to intervene in what would normally be governmental processes,” says Donald Kettl, a public affairs professor at the University of Texas. “There’s a kind of erosion of the commitment to having government resolve decisions on behalf of all of us.”

The Problem With Poll Watchers

The new protections for poll watchers are part of the broader push to enhance election security, despite the lack of evidence of fraud or manipulation last November.

Both parties typically send out volunteers to monitor the polls and to make sure the precinct count is legitimate. They sometimes assist voters with questions, although there’s something inherently suspicious about partisans playing such a role – as the Georgia Legislature highlighted with the notorious provision in its election law this year that blocks party organizations from giving voters food or water.

For decades, the GOP was blocked from deploying armed poll watchers or using race as a factor in its ballot security efforts. A 1982 federal consent decree stemmed from the 1981 campaign for New Jersey governor, when Republicans hired about 200 armed poll watchers – some in uniform – who challenged and confronted Black and Hispanic voters. Although overt voter intimidation has certainly not been limited historically to New Jersey – it’s happened in Texas, among other states – the ban was lifted in 2018.

In March, a GOP official in Harris County, Texas, called for an “election integrity brigade” to go into mostly Black and Hispanic areas of Houston because “that’s where the fraud is occurring.” Last fall, Trump had called for an army of poll watchers to monitor precincts around the country.

The idea that the ballot needs protecting has taken on a sometimes militaristic tone. “If our election systems continue to be rigged, and continue to be stolen, then it’s going to lead to one place, and it’s bloodshed,” North Carolina GOP Congressman Madison Cawthorn said last month.

Where It All Leads

The new law in Texas won’t necessarily stoke violence or intimidation, but those are concerns in the post-Jan. 6 world. Congress itself was attacked that day while carrying out its procedural role in certifying the election results sent by the states. “That was really a kind of watershed moment, when it became a broader-based movement to go after institutions,” Kettl says.

In terms of the abortion law, it doesn’t necessarily encourage activists to surveil abortion providers or enablers, or encourage confrontation – but it does nothing to discourage such behavior. The foundation of that law, after all – and what appeased the Supreme Court – was that the state itself has no official role to play at all. “This new version of vigilante democracy is something very new but is gaining hold,” says Kettl. “If it were to spread, it could have enormous consequences for the way things work.”

Nowadays, there’s greater willingness to threaten public officials – and, according to polls, increasing approval among the public for using violence to achieve political ends. Prior to 9/11, the deadliest terrorist attack on U.S. soil since the Civil War was the bombing of the federal building in Oklahoma City in 1995. Following that attack, President Bill Clinton said he would never again use the term “government bureaucrats.” It fell out of favor for a long time.

But it has resurfaced. The term “unelected bureaucrats” has re-emerged as a slur, invoked frequently by politicians and think tank types angry about health restrictions imposed during the pandemic. At the legal level, conservatives are pushing the Supreme Court to overturn its own Chevron deference doctrine, which holds that judges should defer to reasonable administrative interpretations of the law.

In short, there are many forces pushing against government officials. The pandemic has fueled populist rage, as have the attacks on election officials led by Trump. Now state governments themselves are inviting partisans to take the law into their own hands. “The Texas bill throws gasoline on the flames of those already distrustful of the government,” says Hollis-Brusky, the Pomona professor.

She teaches a class called “running from office” that looks at why people are turned off by the thought of government work as a career. The panoply of attacks on institutional legitimacy will do nothing to encourage a new generation of public workers. “People who want to work in government, they see the death threats,” Hollis-Brusky says.
Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
From Our Partners