Opinion
I’m a Democracy Expert. I Never Thought We’d Be
So Close to a Breakdown.
Our election systems were not built for the modern
era. Looking abroad might help.
By Larry
Diamond
Mr. Diamond
is the author of “Ill Winds: Saving Democracy From Russian Rage, Chinese
Ambition, and American Complacency.”
Nov. 1,
2020
As this
Tuesday’s consequential election nears, my fellow democracy experts and I have
often been asked: What is the right historical analogy to America’s current
crisis? The truth is, there is no precedent. We have never seen such a
longstanding democracy in such a rich country break down before — never. But it
could happen this year.
The
vulnerability of our democracy today doesn’t come in the form that many feared
when Donald Trump was elected in 2016. The good news is that two of the three
pillars of American democracy — liberty and the rule of law — endure, even if
they have been battered. But the third pillar — free and fair elections — is
under far more direct threat than my fellow democracy experts predicted.
Despite liberals’
worries, the United States has not descended into fascism. The president has
repeatedly called to “lock up” or arrest his political rivals, but the Justice
Department — however compromised its leadership at the top — has not complied.
Mr. Trump has
relentlessly denounced the news media as the “enemy of the people,” but
America’s vibrant free press continues to expose one White House scandal after
another. And civil society organizations remain free to advocate for civil
rights, the environment and other causes. Liberty remains essentially intact.
Mr. Trump
has inflicted more damage to the rule of law. He has impugned the integrity of
judges who have ruled against him. He has demanded loyalty to himself — not the
law or the Constitution — from F.B.I. directors, intelligence officials,
military commanders and his attorneys general. He has replaced five inspectors
general investigating wrongdoing in his administration, withheld his tax
returns, pardoned his political allies convicted of felonies, and normalized
lying and inflammatory tweets as modes of presidential communication. And
recently he issued an executive order undermining the political neutrality and
career protections of thousands of senior civil servants.
Yet the
judiciary has retained considerable independence. In June, Mr. Trump’s first
two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, joined a 7-to-2
majority ruling that the president wasn’t immune from a New York state subpoena
for his financial documents. So far, the F.B.I. director Christopher Wray has
quietly but professionally parried Mr. Trump’s demands for “loyalty” and
defended the agency’s autonomy.
As a
result, Mr. Trump has not (yet) become a true autocrat. Illiberal populists
such as Viktor Orban in Hungary and Recep Tayyip Erdogan in Turkey have
gradually strangled their democracies by following an authoritarian playbook:
control the courts by appointing subservient judges; conquer the independent
media by corrupting or threatening its owners; intimidate business leaders into
ceasing support of the political opposition; terrorize civil society groups
into muffling their dissents; and assert personal political control over law
enforcement and intelligence agencies.
Mr. Trump
hasn’t gotten very far in implementing that playbook, though he might well have
more success if he is re-elected on Tuesday.
But the
third pillar of our democracy — the one we have most taken for granted — is
most at risk: free and fair elections. The danger emanates from a singular
combination of events, the worst pandemic in a century and the most
undemocratic president in our history.
With
Democrats accounting for a much larger share of mail-in ballots than
Republicans, Mr. Trump has repeatedly challenged the legitimacy of these votes.
If he is leading even narrowly on Tuesday night, he could claim victory based
only on the votes so far counted — even though Joe Biden might well be on
course to win when all valid votes are counted. Worse, he might pressure the
Republican legislatures in battleground states, like Pennsylvania and Florida,
to award him their state’s electors, even if the formal vote-counting machinery
ultimately declares a Biden victory in the state. Then it would fall to the
courts and Congress (under the terms of the inscrutable, badly written
Electoral Count Act of 1887) to determine who had won in the disputed states.
Such a
scenario would be far more dire and polarizing than even the Bush v. Gore
nightmare of 2000, with an incumbent president threatening fire and brimstone
if the election were not handed to him, while signaling violent right-wing
extremists to “stand by” but perhaps no longer “stand down.” Many on the left
would no longer be willing to let the presidency (in their eyes) be stolen from
them again, and far-left groups might revel in the chance to worsen the crisis.
The potential for violence would be alarming.
The
integrity of the election is further challenged by the rising pace of voter
suppression. In 2013, the Supreme Court gutted the Voting Rights Act, throwing
out the formula requiring nine states (and other localities) with a history of
racist voter suppression to obtain federal permission before changing their
voting requirements. Since then, these and other Republican-controlled states
have imposed legal and administrative changes that have made voting more
difficult for Black Americans, Hispanics, young people and city dwellers — all
heavily Democratic constituencies.
It would be
undemocratic enough for the loser of the national popular vote to again be
elected (for the third time in the past seven presidential elections) by
winning the Electoral College. But if Mr. Trump were to win re-election by
narrowly prevailing in two or three states through extensive disqualification
of mail-in ballots or through voter suppression, the legitimacy of the 2020
election could be questioned far more intensely than those of 2000 or 2016. And
if Mr. Trump failed to win the Electoral College but was nonetheless declared
president thanks to partisan electors, it would signify a grave breakdown of
American democracy — even if people remained free to speak, write and publish
as they pleased.
The very
age of American democracy is part of the problem. The United States was the
first country to become a democracy, emerging over a vast, dispersed and
diverse set of colonies that feared the prospect of the “tyranny of the
majority.” Hence, our constitutional system lacks some immunities against an
electoral debacle that are common in newer democracies.
For
example, even though Mexico is a federal system like the United States, it has
a strong, politically independent National Electoral Institute that administers
its federal elections. The Election Commission of India has even more far-reaching
and constitutionally protected authority to administer elections across that
enormous country. Elections thus remain a crucial pillar of Indian democracy,
even as the country’s populist prime minister, Narendra Modi, assaults press
freedom, civil society and the rule of law. Other newer democracies, from South
Africa to Taiwan, have strong national systems of election administration
staffed and led by nonpartisan professionals.
The
American system is a mishmash of state and local authorities. Most are staffed
by dedicated professionals, but state legislatures and elected secretaries of
state can introduce partisanship, casting doubt on its impartiality. No other
advanced democracy falls so short of contemporary democratic standards of
fairness, neutrality and rationality in its system of administering national
elections.
More recent
democratic countries have adopted constitutional provisions to strengthen
checks and balances. Like many newer democracies, Latvia has established a
strong independent anti-corruption bureau, which has investigative, preventive
and educational functions and a substantial budget and staff. It even oversees
political and campaign finance. South Africa has the independent Office of the
Public Protector to perform a similar role.
The United
States has no comparable standing authority to investigate national-level
corruption, and Congress largely investigates and punishes itself.
Newer
democracies also take measures to depoliticize the constitutional court. No
other democracy gives life tenure to such a powerful position as constitutional
court justice. They either face term limits (12 years in Germany and South
Africa; eight in Taiwan) or age limits (70 years in Australia, Israel and South
Korea; 75 in Canada), or both. Germany depoliticizes nominations to its
constitutional court by requiring broad parliamentary consensus. In other
democracies, a broader committee nominates Supreme Court justices. In Israel
this involves not just the executive branch but the parliament, some of the
existing justices and the bar association.
Many of
these ideas simply didn’t occur to America’s founders, who were framing a
modern democracy for the first time, for a largely rural society with more
limited levels of education, communication and life expectancy. The result is
that American democracy lacks national checks on executive corruption and
national guarantees of electoral integrity that have become routine in other
democracies around the world. And nominations to our Supreme Court have become
far more politicized than in many peer democracies.
Throughout
most of our history, America’s democratic norms have been strong enough and the
outcomes have been clear enough to avoid catastrophic conflict over a national
election. But several times (most notably with the Hayes vs. Tilden
presidential election of 1876), we approached the precipice — and only avoided
falling off through luck and painful compromises.
Today, we
are far closer to a breakdown than most democracy experts, myself included,
would have dared anticipate just a few years ago. Even if we are spared the
worst, it is long past time to renew the mechanisms of our democracy, learn
from other democracies around the world and again make our republic a shining
city on a hill.
Larry
Diamond is a senior fellow at the Hoover Institution and at Stanford
University’s Freeman Spogli Institute for International Studies. He is the
author, most recently, of “Ill Winds: Saving Democracy From Russian Rage,
Chinese Ambition, and American Complacency.”
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