In six weeks, US citizens will vote for President, 33 Senators and 435 members of the House of Representatives – and plenty more offices at the state, county and local level. This will happen during a pandemic, its associated economic dislocations, and ongoing social unrest in major cities.
Given the polarisation of the electorate and Donald Trump’s presence in the White House, the 2020 elections were always going to be contentious. For many voters and pundits on both sides of the partisan divide, the stakes are extremely high. The refrain that this is “the most important election of our lifetimes” is heard every four years in America, but this time it is being recited more frequently and with greater insistence than usual.
The death of Supreme Court Justice Ruth Bader Ginsburg this Friday has ratcheted the tenor of political debate up another notch. If the executive and legislative branches of government were not enough, Ginsburg’s death has brought the highest echelons of the judicial branch into play. And although electoral battles recur relatively frequently, Supreme Court nominations are for life.
Unsurprisingly, given the circumstances, there is a distinct whiff of pandemonium in the air.
Even before Ginsburg’s death, one of the most striking features of the 2020 electoral cycle was a steady erosion of confidence in the upcoming election among politicians and commentators of the left and the right.
Donald Trump has famously and repeatedly refused to state whether he will respect the outcome of the election. His opponent Joe Biden has repeatedly stated that the military will remove Trump from the White House if he loses and refuses to leave of his own accord. Biden’s predecessor Hilary Clinton has implored him not to concede the election on the night of November 3 under any circumstances.
It is difficult to keep track of commentators’ musings on whether Trump will leave the White House if he loses the election; what US citizens should do in the (presumably likely) scenario that he does not; and how Democrats are using the pandemic crisis to quietly prepare a coup against Trump.
Bit by bit, the impression is forming that the results of the elections on November 3 might not be fully legitimate.
This impression in itself is alarming: At its core, democracy depends on a consensus among powerful actors that it is “the only game in town” and that all of them would rather concede an electoral battle and prepare for the next, rather than revert to some other form of political contest – presumably violent. It is no good thing when we hear politicians and influential media figures openly musing about taking the latter path.
However, the current situation goes beyond an impression of crisis because there is every reason to believe that the result of the presidential vote and other important races will not be clear on November 3. It will depend on counts of posted ballots by secretaries of state and county recorders across the country that could take days or weeks.
We experienced this very scenario in Arizona in 2018. A close Senate race between Democrat Kyrsten Sinema and Republican Martha McSally looked to be breaking for McSally on election night, but after early and mail-in ballots were counted the next day Sinema won by almost 60,000 votes.
The Sinema-McSally delay occurred despite Arizona being well prepared for mail-in voting; we have for years had one of the highest rates of postal voting in the nation. The Covid-19 pandemic has left many less well-prepared states scrambling to implement new mail-in voting rules. Delays in processing these ballots are likely and mistakes cannot be ruled out. Republicans and Democrats in Washington, DC and state capitols across the country have been arguing over the postal ballot issue for months, trading accusations that each side is somehow trying to rig mail-in votes in their favor.
Ginsburg’s death adds to the current political turmoil in at least two ways. First, because the question of nominating a successor is incredibly contentious. Although the Constitution is clear on this issue – the President nominates Supreme Court justices, and they are confirmed by a majority vote in the Senate – these formal rules are just as contested as mechanics of the presidential election are this year.
Democrats will use every argument and mechanism at their disposal to try and delay the nomination of a replacement for Ginsburg. They will point to Republicans’ refusal to confirm President Obama’s nomination of Merrick Garland during the last year of his presidency as precedent. Republicans have the power to confirm a successor – even during a Senate lame duck session after the election on November 3 – and have indicated that they intend to use it.
However, Ginsburg’s death adds a second dimension of complexity. This year’s presidential election is likely to be close, and the issue of mail-in voting presents myriad possibilities for contention. Some readers will recall that the result of the 2000 presidential election in Florida was litigated. The Supreme Court allowed the Florida Secretary of State’s original vote count to stand and delivered the state’s electoral college votes and the presidency to George W. Bush.
The prospect of a Supreme Court, including a fresh Trump nominee, deciding not only on divisive issues such as abortion rights but also on the legitimacy of the 2020 presidential election is enough to raise the intensity of political furor to boiling point.
What we are witnessing in the United States today is the straining of the world’s longest-lived and most prosperous democracy towards its constitutional breaking point. Whether regarding the Electoral College or the nomination of Justices of the Supreme Court, the formal written rules of the political game are enduring and clear. What is becoming less clear is how willing powerful actors, and less powerful citizens, are to abide by these rules.
New Zealanders live without a written constitution and commonly have only a passing familiarity with the web of law and parliamentary convention that stands in one’s place. To us, what is happening today in the US might seem strange or incomprehensible. However, we should not be too smug. We should consider, when faced with the sorts of multiple reinforcing crises that the US is dealing with today, what are the political rules of the game in New Zealand’s parliamentary democracy?
Henry Thomson is originally from Amberley, North Canterbury and is now an Assistant Professor of Political Economy at Arizona State University. His research focuses on the political economy of authoritarian rule and transitions to democracy. You can read more about his research here and follow him on Twitter @HenryRThomson. His earlier letters are here.