In his speech to the Conservative Political Action Conference (CPAC) on 28 February, Donald Trump called for a series of reforms to ensure US elections are ‘fair, honest and accurate’. When he won in 2016, millions of Americans, appalled by manifest character flaws, refused to accept the outcome. Many Democratic lawmakers, aided and abetted by an increasingly partisan media, undermined him non-stop. Millions also refused to concede legitimacy because Trump had received three million fewer votes than Hillary Clinton. Now it’s the turn of Trump supporters to deny legitimacy to Joe Biden, with 70 per cent of Republicans believing the election was stolen. Courts have rejected dozens of cases alleging fraud, charges that are almost impossible to prove to the rigorous standard of law. Besides, even Attorney General William Barr said the Justice Department had found no evidence of widespread voter fraud. On 22 February the Supreme Court declined to hear challenges to the Pennsylvania election.
Legality aside, politically this is an abdication of the court’s responsibility to answer important constitutional questions. Unprovable claims of voter fraud do not invalidate the need for reforms to harden the US political system against future disaster. Post-election litigation that overturns a declared result will create chaos and provoke unrest. Being too timid to confront systemic flaws before a crisis erodes public confidence and builds momentum for serial chaos with each successive election. Ballot integrity needs to be ensured and voter confidence assured by settling rules and standards well in advance. This is why the decision to dismiss the complaint, that election officials had failed to implement Pennsylvania’s election laws, was ‘inexplicable’, as the dissenting judgment from Justice Clarence Thomas said. The court had the opportunity to provide authoritative clarity, before the next election, on the extent to which officials can ‘reinterpret’ the clear intent of legislatures in implementing ballot rules. An issue likely to arise again was allowed to escape review. This can only deepen ‘the erosion of voter confidence’. Even false allegations that are not tested and disproven will be left to fester and breed distrust of government.
Unlike legality which depends on satisfying procedural requirements set by duly constituted bodies, legitimacy lies more in the eyes of citizens and their belief in the rightfulness of those in positions of power to be there. Gandhi’s entire civil disobedience exploited this distinction between legality and legitimacy and defeated the might of the British empire on the strength of that distinction. The Myanmar junta too is currently experiencing the difficulties of governing when the populace believes their coup to be illegitimate. Absent compliance based in voluntary consent, the brittle regime turns to coercion with its inherently shaky foundations.
With the legal pathways to reversing the outcome closed, the perception of illegitimacy in tens of millions means Biden too will be hamstrung in implementing his agenda. It’s hard to see how any serious analyst could claim with a straight face that the standard of ballot integrity of postal voting matches that of in-person voting in the polling booth, with many instances of ballot harvesting, an elastic time limit, no signature matching against votes, ballots mailed to outdated addresses, etc.
Anomalies include the rarity of an incumbent president improving votes by over ten million but losing; Biden winning significantly fewer counties than Clinton in 2016 yet substantially more votes than her; the concentration of these votes in key swing states; statistical anomalies in the spikes in votes under suspicious suspensions and glitches and then resumptions in counting; the failure of bellwether states and counties to pick the winner, etc. Owing to the unique circumstances of the election amidst the coronavirus restrictions, plus the exceptional situation where the enthusiasm vote for defeating Trump may have exceeded that for re-electing him, the anomalies are capable of explanation in principle. But they do need open airing and explanation.
A good example of the stench of illegitimacy and the depth of political resistance to Biden’s presidency comes from former House Speaker Newt Gingrich in the Washington Times on 21 December. He explained his enduring ‘outrage and alienation’ because of the relentless effort to undermine and undo the 2016 result, the assault on religions and attempt to cancel liberties, the media and Big Tech running protection for Biden to an extent that may well have tipped the election and, despite the many documented anomalies and alleged instances of fraud, the refusal of the Supreme Court to hear the challenge from Texas on the technicality that it lacked legal standing to bring the case. The intensifying crisis of legitimacy of the US presidency in turn will deepen what Larry Diamond calls the global ‘democratic recession’.
As it happens, in a case that alleges Arizona’s voting requirements violate the 1965 Voting Rights Act, the Supreme Court has another opportunity to clarify some broader issues and define a clear standard to help protect ballot integrity against electioneering lawsuits and activist judges. Or it could once again just rule on the narrow technicality, let the issue fester and contribute to the slow-drip erosion of public confidence in the election process and outcome. Meanwhile the Pelosi Democrats have introduced ‘reform’ measures in H.R.1 Bill that would lock in their advantages by institutionalising the very practices in 2020 that created so much angst and suspicion about fraud with respect to ballot harvesting, lax authentication requirements and stretched timelines before and after election day for posting and counting votes.
The present state-level patchwork quilt of varying laws and practices militates against a standardised electoral system for choosing the president and exacerbates the crisis of legitimacy. It should not be beyond the wit of Americans to design a system with accurate and updated voter registration lists, that requires voters to prove their identity and eligibility to vote, in person or by post in limited circumstances and within a reasonably tight timeframe, and ensure access to the counting by election observers. Unsolicited ballots and vote harvesting should be banned. If postal votes are required to come in by election day their counting too could be completed and results declared on the day. Apportioning state delegates to the electoral college in proportion to votes cast would ensure alignment of popular votes and presidential victory, and also incentivise candidates to compete vigorously in every state. That too would improve the health of US democracy.
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