by Meena Jagannath and Nikki Thanos

Originally published April 15, 2024 in Convergence Magazine

Movements know that it is not enough to just engage in the defensive work outlined in Part 1 of this dispatch; we have to deliver practical material wins, aggregate our victories, and strive for governing power. In this dispatch, we share more  findings from two years of conversations with organizers, focusing this time on how lawyers can help organizers build the power we need to construct a multiracial, pluralistic democracy as part of a larger “block and build” strategy. There is certainly plenty of building work to be done at the federal level, but we zero in on the importance of the state and local levels because those terrains serve as laboratories and accelerators for authoritarian experiments.

Organizers have previously advised on what needs to be done to build power: work with the center, build from a position of strength, prepare for blowback after achieving wins, foster broad alignment across a broader ideological spectrum and persist despite feelings of overwhelm and despair. Lawyers have a crucial role to play in this long-term power-building work as well as the fight against authoritarianism. We hope this dispatch will serve as a clarion call for lawyers committed to thwarting an authoritarian advance to invest more in state- and local- level organizing fights. 

Reimagining democracy

We need lawyers engaged as long-term partners to social movements working to build democracy where folks can really feel it —  close to home.  We cannot emphasize this strongly enough: when we say “democracy,” we’re talking about a new kind of pluralistic, multiracial system and set of practices that are more beautiful, free, and inclusive than anything we’ve ever called “democracy” before. What does workplace and reproductive democracy look like?  What can the lens of pluralistic democracy add to climate- and economic-justice fights, or land and housing struggles?   How do we grow into this new democracy together by practicing emergent ways of being? Can we bring  democratic governance to school, election, or co-op boards? Can we launch widespread experiments in co-governance or place community-cultivated leaders in elected or appointed local positions that create heretofore unimaginable pathways for citizen participation?

Across the country, labor unions, tenants unions and community organizations are devising new ways of ensuring more democratic accountability in the bodies tasked with making policies that govern all aspects of our daily lives. Participatory budgeting is one step towards co-governance. Others include creating boards and offices that cooperate with or are staffed by community organizations, and designing programs in which communities are working with governmental authorities to achieve more effective, inclusive service delivery and non-punitive approaches to safety.    

Participatory budgeting initiatives, first piloted in the 1980s in Porto Alegre, Brazil, are now underway in over 7,000 cities around the world, including more than 50 in the U.S. For example, residents in New York City districts with participating City Councilmembers will allocate $24 million in capital funding this year, mostly for improvements to local parks, libraries, and schools. Guided by the principle that people “learn democracy by doing it,” these initiatives put power directly into the hands of everyday citizens to make substantive decisions about their schools, workplaces, and city budgets.

More organizing groups are also running candidates—often from their own ranks—for both up- and down-ballot races. In Bozeman, Montana, Joey Morrison, the 28-year-old founder of Bozeman Tenants United, won the November 2023 mayoral race on a platform emphasizing affordable housing and access to mental healthcare. Earlier in 2023, Chicago elected former middle school teacher and Chicago Teachers Union (CTU) organizer Brandon Johnson as mayor. Johnson ran a progressive campaign, powered by a decade-old labor-community alliance the CTU helped build. He committed to resources for public schools, a real estate transfer tax to create new housing for unhoused people, and funding responses to mental health and crime that do not involve the police. Of course, electing an official is just one component of building inclusive, representative democracy. After “their” candidate takes office, people need to stay engaged with them and support both community buy-in for and implementation of the progressive policies they proposed as candidates. 

We can learn from Chicago about the potential for democratic people’s movements to achieve electoral, and eventually governing, power. That inquiry, though, quickly leads us to an examination of the CTU itself which is not just one of the most militant but also one of the most democratic unions in the U.S. CTU also understands the deep relationships between bargaining power and political power, and its responsibility to fight not only for its members but also for the communities where they live and work. It is the throughline of democracy we’re most interested in here–from inclusive union governance structures to mechanisms that ensure that the priorities of the base filter up into a union’s agenda. Lawyers are needed to help groups as they democratize internally and as they push for greater democracy in the public sphere.

Besides creating opportunities for co-governance and participatory policy-making, groups are also transforming our democratic landscape by expanding who can participate in formal democracy. Visionary groups like Forward Justice in North Carolina, VOTE in Louisiana, New Virginia Majority, and the Florida Rights Restoration Coalition have been modeling powerful law and organizing collaborations, leading state efforts to re-enfranchise formerly and currently incarcerated people while acting as crucial bridges between national litigation shops and on-the-ground organizing efforts.

Last year, the New Jersey Institute for Social Justice highlighted municipal efforts to lower the voting age so that 16 and 17 year-olds can participate in school board and local elections where officials are setting policy that deeply impacts their lives. This past January, young people 16 and above in Newark won the right to vote in school board elections, a right that also exists in Berkeley, California, Brattleboro, Vermont and a handful of cities in Maryland. These campaigns that expand the electorate must be replicated to get closer to the equitable and inclusive democracy we are striving for.

We also must engage communities as co-designers to reimagine the possibilities for democracy in the coming era.  Most folks, for example, haven’t been exposed to the historic anti-democratic functions of institutions like the Supreme Court. Once we collectively understand the ways that present undemocratic institutions have failed our communities, we can begin to tap our full wisdom to design radically inclusive policies, budgets and institutions.

And to be clear: while it is true that many more lawyers are needed, it would be a mistake to place new state-building or institution-building efforts solely in the hands of lawyers and other technicians.  We must find a way to move forward that does not risk repeating errors of the past that have resulted in less inclusive and democratic structures and laws. This starts with a movement lawyering ethos and a commitment to long-term, collaborative relationships with folks on the frontlines.  

Build capacity to push back power grabs

Most of the federal authoritarian power grabs we’ve written about in this series have state-level corollaries.  The work of unraveling state-level institutional democratic safeguards often happens behind closed doors, around state legislative tables or through procedural and administrative processes like election certification, with little public oversight.  If left unchecked, these efforts can result in structurally weaker state-level democracies that create vulnerabilities for wholesale overhauls of state constitutions and laws.

Overt authoritarian power grabs have already happened in state legislatures. In April 2023, Tennessee Republicans expelled two Black lawmakers from the House of Representatives,  stripping 15,000 Tennesseans of representation. The representatives, who favored gun reform, were expelled for supposedly breaching the rules of decorum. After national backlash, the two won back their seats in a special election. That same month, a Republican supermajority in Montana’s House of Representatives removed the state’s first openly transgender lawmaker, Rep. Zooey Zephyr (D), who represented a district of roughly 11,000 people in western Montana – from all floor and committee meetings, stripping her of her ability to participate in debates, including those over a controversial  bill that would ban gender-affirming care for minors that was the subject of the controversy. 

Both of these examples garnered widespread attention and condemnation, including from the legal sector. The added attention has helped defer further such moves in those states. But if we want to prevent similar power grabs in the future, we must see beyond the specific problem of the unconstitutional expulsion of democratically elected legislators. We must zoom out to ensure lawyers are showing up to defend decades-long struggles, such as those of the organizers chanting in the capitol hallways, the trans youth who don’t have a place to sleep at night, the parents demanding gun reform, and so forth. 

The unfolding Stop Cop City fight is a present example of local electeds quashing dissent with unabashedly anti-democratic maneuvers. In June 2023, three years into grassroots organizing efforts, “Cop City Vote” organizers crafted a campaign to allow Atlanta voters to call for a referendum on the unpopular police training facility dubbed Cop City. Organizers turned to this ballot measure after the City Council refused to follow the clear, unequivocal will of the people and voted twice to support construction of the training facility. (The Council first voted to lease the land to the Atlanta Police Foundation in October 2021 and then approved funding the construction of Cop City on June 5, 2023.) The organizers argued that because many city residents would prefer that the money be spent on other municipal projects, and so much of the budget for Cop City would come from taxpayers, the residents themselves ought to have a say in the future of the project.

Organizers spent months collecting 116,000 signatures from voters who wanted to see a referendum on the project included on the ballot in an upcoming election, and submitted the signatures to the Atlanta City Clerk. It was evident that Atlanta city officials were going to undermine the ballot referendum by relying on an unconstitutional municipal law to reject signatures gathered by organizers. The law required that only signatures of city residents collected by city residents would be counted, even in this instance where many of the signature collectors did not live in Atlanta city proper, but in outlying areas closer to the actual forest where Cop City is being built. 

Lawyers sued the City of Atlanta to protect the First Amendment rights of the Atlanta city residents and obtained a ruling from a Federal District Court Judge that the Atlanta municipal law violated the First Amendment. The District Court enjoined the City from enforcing the law.  

Rather than counting all of the ballot signatures, the city has engaged in a costly, labor- and time-intensive appeal of the trial court’s ruling to the 11th Circuit Court of Appeals; it argued, among other things, that a vote against Cop City was meaningless because overturning the lease for the project would be illegal. To make matters worse, the Atlanta City Council passed a new ordinance requiring an outdated and racist process of “signature matching” in any future referendums brought by any group.

The decision to not even count the signatures to allow for the question to be put to a vote is shockingly undemocratic; the fact that a self-described progressive government curbed dissent is also chilling. More signatures were collected during this campaign than votes cast in the last mayoral election. This points to people’s desire for more direct, innovative, and real-time engagement in local decision-making processes than that offered by simply voting in elections.

While the outcome remains to be determined, the Stop Cop City movement has garnered attention internationally, inspiring similar grassroots organizing campaigns. The fight is exemplary–both as a cautionary tale of democratic backsliding and as a bright spot of organic multi-sectoral resistance. It also underscores the essential role of lawyers working in deep collaboration with organizers to leverage every legal hook possible to advance an intersectional abolitionist, climate-forward, pro democracy agenda.  Stop Cop City organizers need immediate resources and support as they enter the next phase; as in all fights for multiracial democracy, we all have a role to play.  

Mass movements — not lawyers — power  social transformation

As we have mentioned in the previous dispatches, lawyers often focus their work on aspects of formal democracy — the institutions and structures of government, voting rights, and abuses of power, for example. Those fights are incredibly important, but if we are to win, the legal sector cannot continue filing lawsuits in a vacuum. Litigation alone, even when successful, does not build the type of long-term power we will need to defeat the authoritarian threat. Lawsuits often take too long, focus on highly specific and legalistic aspects of a given issue, and fail to center those most directly impacted. 

To win a pluralistic, mulitracial democracy, we need strong movements and organized communities to hold leaders accountable, ensure the appropriate implementation and interpretation of the laws on the books, and push systems to be more equitable and inclusive. Directly impacted people, especially the most excluded, must lead the work of shaping laws and processes through active mobilization and sustained organizing. They cannot simply be  selected plaintiffs in lawyer-driven pieces of reform litigation.

We must also be laser-focused on defending the terrains on which we struggle and the vehicles by which folks organize — formal and informal community organizations, labor unions, religious groups, and more. A more expansive view of power requires that we wage campaigns to improve material conditions in a way that builds the leadership of everyday people and supports long-term transformative organizing, while simultaneously contending for narratives and worldviews that redress historic harms and incorporate diverse lived experiences and identities. 

Funders need to support creativity at the state and local levels

Funding must flow to the state and local levels to keep ecosystems robust and able to face up threats and be creative. But the funding to keep the work going at the state and local levels is fickle. Most progressive democracy funders resource atomized work one election at a time, prioritizing national-level work and states that can deliver progressive policy and presidential wins. This is a mistake and must be immediately corrected.

We need long-term investments, both technically and financially, in the hottest frontlines of our domestic fights against authoritarianism. If we deprioritize red states, purple states, and states where the MAGA bloc is contesting for trifecta governing power, we will set progressive movements back decades. If our goal is not to win one election but rather to build sustainable progressive governing power sooner rather than never, it is clear there are no low-priority “losing states.” Surrendering “sacrifice zones” creates a vacuum where authoritarians are able to test out brazen power grabs that then get replicated in “winnable states.”  We must do better.

Lawyers must be accountable partners in fights for democracy

What we’ve laid out in this two-part dispatch just skims the surface of all the ways that communities are trying to push past feelings of hopelessness, overwhelm and fear about the shifting organizing terrain as the conservative MAGA agenda gains ground (see, e.g., the recent Arizona ruling on abortion). Organizers working under increasingly challenging conditions have told us they need lawyers to work with them to block the many threats on the horizon and also show up as long-term, accountable partners in transformative organizing fights. Lawyers can help communities creatively orient to this moment by co-creating updated understandings of the threats they face, the rights they have, and the legal processes they can use to bolster their power building. They can also  help organizers and organized communities get more familiar with decision makers, leaders, processes and forums for engagement at all levels, including engagement opportunities close to home with local commissions, school, planning, canvassing and zoning boards, etc. 

While keeping people safe and fighting for immediate material wins, we must also be steadfastly committed to the project of creating long-term governing power.  Ultimately, lawyers are needed to dream and plan alongside organizers as left strategists.  To step into that role, our sector must re-interrogate our baseline beliefs about how societal change happens. If we want to build enough power to confront the authoritarian threat, we’ll need to do more than win lawsuits and intermittent policy fights–and that requires many more of us getting in the ring with organizers to strengthen our popular movements.

The next dispatch will discuss in greater detail the ways that the conservative legal movement has shifted the terrain of law over the last couple of decades – and how we might gain it back. Stay tuned for more!

Continue Reading the “Dispatches on Democracy” Series.