Sheriffs Undermine Democracy Through Nullification

Red background with image of eagle inside a white circle holding a gun in its talons.

Last year, a 21-year-old shooter using an assault-style rifle killed seven people and injured dozens more when he opened fire at a 4th of July parade in Highland Park, Illinois. Law enforcement apprehended him eight hours later. But, by then, it was too late for the individuals who were murdered and their families who must endure the loss of loved ones.

The incident renewed political pressure for gun regulations in the state, and in January of this year, Illinois Gov. J.B. Pritzker (D) signed House Bill 5471, legislation limiting future sales of assault rifles and high-capacity magazines; the law also required registration of such firearms already in circulation. The governor and Democratic legislators praised the bill as a victory over the relentless decades-long lobbying efforts of the National Rifle Association (NRA). 

Such a process represents democracy in action. A majority of the voters of Illinois, through their elected officials, supported the gun control measures in H.B. 5471. This was, however, not persuasive for the pro-gun lobby and far-right forces that seek to thwart such victories. They summoned a favorite anti-democracy force, the county sheriff.

Almost immediately, over 80 Illinois sheriffs objected to the new law, even though it did not specifically implicate county sheriffs in enforcement. Led by the Illinois Sheriffs’ Association, these sheriffs — who notably represent less than half of the population of Illinoiswrote near-identical letters arguing that the bill Pritzker signed was “unconstitutional.” 

It read, in part, “I, among many others, believe that HB 5471 is a clear violation of the 2nd Amendment to the US Constitution. Therefore, as the custodian of the jail and chief law enforcement official for [my county], proclaim that neither myself or my office will be checking to ensure that lawful gun owners register their weapons with the State, nor will we be arresting or housing individuals that have been charged solely with non-compliance of this Act.”

To defend their anti-democratic actions, these sheriffs argue that, because they are elected, they represent the will of the people. Yet, we know this is not true.

To make such claims, these sheriffs relied on a far-right legalistic theory known as “nullification.” “Nullification” has been specifically rejected by the U.S. Supreme Court in 1809, but persists as a far-right fairy tale, promising a way for local officials, when faced with changing demographics and a popular will that runs contrary to their own views, to subjugate residents to a vision of the U.S. Constitution rooted in white supremacy. When the gun lobby loses to democratic will, sheriffs — many of whom also benefit from the largesse of the NRA — take up the mantle by making a disreputable and debunked legalistic argument.

Despite the claims of far-right groups like the Constitutional Sheriffs and Peace Officers Association (CSPOA), sheriffs cannot “nullify” laws. Not only did former President James Madison explicitly repudiate nullification as a doctrine, the idea behind nullification was used by pro-slavery politicians like former Vice President John C. Calhoun to justify the enslavement of Black Americans just before the Civil War and by anti-segregationists resisting decisions by the Warren Court in the Civil Rights Era.

Before the Civil War, Calhoun advocated before the South Carolina Legislature for nullification as a way to protect the rights of slaveholders. He lost, but continued to press the idea of nullification as a form of “concurrent government” to protect the “different interests, orders, classes, or portions, into which the community may be divided.” In other words, nullification remained a way for Southern planters to retain control when faced with a federal government that sought to end slavery as an institution.

The false promise of “nullification” has become a common strategy of far-right groups like the CSPOA, which have joined pro-gun organizations like Gun Owners of America and a variety of other far-right, anti-democratic organizations that seek to limit civil rights and reduce the ability of state and federal government to protect life. The CSPOA’s website clearly states the anti-democratic notions that “[t]he law enforcement powers held by the sheriff supersede those of any agent, officer, elected official or employee from any level of government when in the jurisdiction of the county.”

Richard Mack, an ex-sheriff who founded the CSPOA and has also lobbied for Gun Owners of America, is one of the primary purveyors of so-called “nullification.” He argues, falsely, that the concept “has nothing to do with racism.” Instead, Mack says, nullification was something Thomas Jefferson and Madison supported as a way to stop what the ex-sheriff deems “stupid laws.” “States have the authority to judge the constitutionality of laws and decrees,” Mack said, loosely quoting Madison and Jefferson. “If it’s clearly unconstitutional, it should not be happening. And it’s null and void on its face and has no force.” 

To defend their anti-democratic actions, these sheriffs argue that, because they are elected, they represent the will of the people. Yet, we know this is not true. A survey of sheriffs found that over 90% of them are white and male, nowhere near representative of the general population. Furthermore, local sheriff elections are generally not competitive for a variety of reasons, including the ability of sheriffs to fire anyone who disagrees with their political viewpoint.

Finally, limits on democratic participation and felony disenfranchisement laws enacted by state legislatures mean that the people most impacted by law enforcement are unable to vote in sheriff elections. As a result, while sheriffs are elected, on the whole, they serve terms that are much longer than police chiefs, who are appointed.

Democracy requires law enforcement officials — indeed all officials, appointed and elected — to follow the laws as established through the legislature and confirmed through the courts. It is simply not democratic to allow sheriffs to decide what the voters want.

Jessica Pishko is an independent journalist and lawyer who focuses on how the criminal justice system and law enforcement intersects with political power. As a contributor to Democracy Docket, Pishko writes about the criminalization of elections and how sheriffs in particular have become a growing threat to democracy.