2.1 From Electoral Majorities to Minority Rights
Democracies grapple with the tension between the principle of majority rule and ensuring respect for the interest of political minorities, however those might be defined in different societies and different circumstances. As an initial matter, constitutional designers confront this tension in the original architecture of a democratic system. Should the system be a strongly majoritarian parliamentary one? Should there be distinct, geographic-based representation in one chamber of a bicameral legislature of certain units, such as counties, states, provinces, and the like? Should there be explicit representational guarantees for identified minority groups, as in consociational democracies? If majorities have too much concentrated power, the risk is a form of majoritarian domination. If minorities are given too much power, the risk is a minority veto over government.
But the balance struck between majorities and minorities is not exclusively settled through the original constitutional design. In the United States, at least, legal doctrine and statutory enactments have also been centrally engaged in an ongoing fashion with this fundamental tension. Nor are the dominant concerns in one era necessarily those of another; solutions that appear best for a particular period of time are not necessarily appropriate as circumstances continue to evolve over time. At certain moments, the democratic system might be judged to be too strongly majoritarian, with the interests of political minorities being excessively subordinated. At other moments, the system might turn out to grant too much power to political minorities, with the ultimate risk being minority capture or paralyzed government.
The difficulty begins with the fundamental question of how much is due to those that triumph electorally. At its irreducible core, democracy turns on elections. Elections separate those able to muster popular support from those unable to inspire sufficiently. Elections provide the major mechanism for accountability of the governors to the governed and, through rotation in office, forestall the emergence of an alien governing elite. Elections reward institutions that wed effective campaigning to subsequent performance in office. When functioning well, democratic elections provide what Jonathan Rauch terms “dynamic stability,”Footnote 1 a process by which parties and programs are tested and retested, but within a relatively stable set of institutional arrangements.
Twenty-five years ago, we turned our attention to the potential distortion resulting from the ability of incumbent powers to improperly lock up the capacity for change, borrowing the concept of a “lock up” from corporate law and the competition for control of a firm. In the “Politics as Markets”Footnote 2 approach, the natural predilection of incumbents for stability compromised the dynamism of the political system and permitted an agency-cost gulf between the governors and the governed. Drawing from diverse sources, most notably John Hart Ely and Joseph Schumpeter, we examined whether barriers to entry and other anticompetitive encumbrances thwarted the normal processes by which choice generates development through competition, much as the antitrust laws look to keep open the processes of creative destruction by which new entrants test the continued market dominance of the old.
Much has happened in the intervening quarter century, and today we look a bit more skeptically at the outputs of democratic processes, rather than focus almost primarily on the inputs. At the time of publishing “Politics as Markets,” we were worried about majority parties and incumbents entrenching themselves through various control points in the political process; now we worry as much about minorities entrenching themselves within the parties and cutting off accountability to majoritarian preferences . As we have written about extensively, the fragmentation of political authority across the established democratic worldFootnote 3 and the rise of populismFootnote 4 have yielded an all-or-nothing cataclysmic quality to elections, now increasingly shorn of the institutional moorings that defined the period of democratic ascendency. A good part of our attention turns to the current predicament of increasingly illiberal democracies gravitating toward executive command and legislative failure. This has forced a broad refocus to core questions of what ails democracy.
In this essay, our attention is directed to a reassessment of one of the persistent tensions in the law of democracy. We can think broadly of democratic stability as necessitating the avoidance of the twin shoals of excess power to the current majority and the risk of preemptive power flowing to factional forces. If these be the Scylla and Charybdis of democracy’s journey, the problem is compounded in an era of weak institutions, first and foremost the political parties. Electoral arrangements that well served an expanding electorate in pushing open the centers of power now risk becoming instruments of democratic paralysis or even collapse.
As with “Politics as Markets,” our inquiry can be rooted in the initial salvos of an assertive law of democracy in the period of Baker v. CarrFootnote 5 and Reynolds v. Sims.Footnote 6 Each case exposed the mechanisms by which institutional stasis could preserve an untouchable minority in power. As Chief Justice Warren noted at the end of his tenure on the Court, these groundbreaking opinions were intended to open political contestation over areas of American politics that had been laid relatively immune to an aroused militancy, even from a majority of potential voters . To this majoritarian commitment, we may add the initial thrust of the 1965 Voting Rights Act, which extended the ability to register and vote to excluded minority populations (in the South above all), designed to ensure elections would be responsive to the majority of all adult citizens.
It is common to think of judicial review as primarily protecting individual rights and vulnerable minorities. But many of the early law of democracy cases were actually in the service of majoritarianism, even if the indirect beneficiaries were expected to be discrete and insular minorities. Yet once the one-person, one-vote cases gave greater thrust toward majoritarianism, it soon became clear that this approach was insufficient to allow real access to effective political participation for America’s persistently excluded minorities – particularly in the face of racially polarized voting patterns. Almost immediately, cases such as Allen v. Board of ElectionsFootnote 7 and White v. RegesterFootnote 8 sharpened the institutional inquiry into the way in which majority-reinforcing institutions, such as at-large or multimember district elections, consistently frustrated minority electoral prospects. The entrenched politics of exclusion proved far more resilient than could be redressed by a simple expansion of the franchise or the requirement of equipopulous election districts.
Dubbed the second generation of voting rights claims, the battle for effective guarantees of minority representation, particularly after the 1982 amendments to the Voting Rights Act (VRA), transformed politics, especially in the South. Districted local government elections allowed different minorities to establish themselves, beyond the black constituencies that were the primary concern of the cases. In short order, partisan competition spread, the parties realigned across an increasingly racially driven axis, and the Southern Democratic hegemon was uprooted, together with its formal Jim Crow foundation.
But the logic of creating minority avenues to challenge encrusted power did not stop at formal barriers to black representation. The logic demanded greater minority footholds in all facets of the political process, including within political parties. Thus, in a series of ballot-access cases, the Court struck down excessively burdensome requirements for third parties or independent candidates to get on the general-election ballot. As the Court reasoned in one such case, overly restrictive ballot-access rules to those challenging the major parties were an unjustifiable entrenchment of the established parties:
No discernible state interest justified the burdensome and complicated regulations that in effect made impractical any alternative to the major parties. Similarly, here, we perceive no sufficient state interest in conditioning ballot position for an independent candidate on his forming a new political party as long as the State is free to assure itself that the candidate is a serious contender, truly independent, and with a satisfactory level of community support.Footnote 9
Indeed, this line of cases represented a growing distrust of majoritarianism as a stand-alone guarantor of democratic legitimacy. In Gordon v. Lance, a 1971 case expressing the same impulse toward restraining majorities, the Court upheld a West Virginia requirement of a 60 percent supermajority support for bond obligations:
Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. On the contrary, while we have recognized that state officials are normally chosen by a vote of the majority of the electorate, we have found no constitutional barrier to the selection of a Governor by a state legislature, after no candidate received a majority of the popular vote.Footnote 10
Once popular majoritarianism was no longer the primary virtue courts sought to uphold in the political process, the issue of the measure of proper legitimacy surfaced fully. The background norm of proportionality always lurked as a possible template – certainly that was the language of much opposition to the 1982 VRA engagement with at-large elections – a ready measure of when historically vulnerable minorities had received their due share. But the use of single-member districts as the antidote to minority exclusion pushed forward a markedly inferior way to achieve proportional results unless districts were packed with so many voters of a certain description or inclination as to make the desired electoral result inevitable.
In a setting such as that presented in Johnson v. DeGrandy,Footnote 11 the claims for maximizing the protection of minorities reached the point of black constituencies and Hispanic groups fighting for super-proportional legislative representation as a matter of due, leaving the bare white majority with a presumed limitation to sub-proportional status. A unanimous Court rejected this result. Then, most notably, in a long series of cases starting with Shaw v. Reno,Footnote 12 and each turning on complicated factual assessments, the Court imposed an important, though ill-specified constitutional constraint on the level of deliberate minority guarantees that states could offer.
Rather than spark a turn to majoritarianism, the post-Shaw period channeled needs for minority representation into a broad current of efforts to claim the political parties as the terrain for capturing political power. A compressed form of a long and complicated story would focus on the McGovern-Fraser reforms in the Democratic Party (and corresponding developments in the Republican Party),Footnote 13 the financial strictures of McCain-Feingold,Footnote 14 and the rise of social media as a forum for candidate independence and private fundraising. Each had the effect of diminishing the power of the party leadership and giving rise to free agency within the formal boundaries of the party, or at least with the aim of battling for command in the increasingly decisive primary process.
The resulting picture of party fragmentation and the capture of electoral vehicles by the polar extremes is one that bedevils the entire democratic world. The ubiquity of the problem and the push toward illiberalism cautions any discussion that focuses on American legal and political developments as having unique consequences.Footnote 15 In democracy after democracy, we see “the external diffusion of political power away from the political parties as a whole and the internal diffusion of political power away from the party leadership to individual members” and, correspondingly, the “decline of parties as the locus of democratic politics and the rise of the individual-centered definition of politics.”Footnote 16 Yet there is a clear domestic trajectory to the law of democracy since the 1960s, and we intend the following discussion to ground the problem of majoritarianism and minoritarianism in American law and politics. As the institutional centers of American politics lost command, the battle for the increasingly rudderless electoral vehicles empowered the further margins of each party.
One way of framing the inquiry is to go back to the key question posed by “Politics as Markets.” As originally framed, we were concerned about legal obstacles to the accountability of the electoral system to the will of the voters and to those who had been historically excluded. There was both too much centralized party control and too little capacity for minorities to enter the fray. In discussing cases going back to the White Primary Cases, we tried to show that structural attention to the openness of competition could provide a mechanism for cohesive minorities to seek advantage within the domain of political inputs, with less reliance on difficult rights claims on what the ensuing political outputs should be. We were worried about majority parties entrenching themselves; now we worry as much about minorities entrenching themselves within the parties. As coined by William Galston, we face the threat of becoming a tyranny of a minority of the majority. Put another way, the law of democracy was born in the pursuit of majoritarianism. It soon shifted to attempting to ensure fair treatment of minority interests in the face of systematic conflict. But we now face the challenge of precluding extreme or factional minoritarian interests from capturing and controlling government.
2.2 Re-establishing Majoritarianisms
America’s political parties are internally fragmented. Jumping ahead to the present, this is the most significant new challenge in American democracy.Footnote 17 Fragmentation has numerous ramifications for both elections and governance. In both primary and general elections, it has accentuated the risk that under plurality-voting rules, factional candidates with intense but minority support can capture a party’s nomination and/or win the general election. In governance, the fragmentation of the parties means that even during periods of unified government, the parties are less able to cohere around the ability to deliver on a common platform of political objectives. In practice, this means that a minority faction in the party is able to exercise effective veto power over legislation.
In the second phase of the constitutional and statutory revolution in voting rights, the dominant concern was to ensure that racial and ethnic minorities would be fairly represented in representative institutions under circumstances in which majorities systematically declined to support candidates from those minority groups. The perceived problem to which law and policy responded was the risk that majorities would exercise a form of majoritarian tyranny, in which the interests of minorities were systematically discounted. In our new era of extremism and fragmentation, instead, a major concern has become too great a compromise of the majoritarian thrust on which democratic systems ought ultimately to rest. Much of current institutional reform thought can best be understood as an effort to reassert the importance of majoritarian control over the outcome of elections.
2.2.1 The Birth and Death of Majority Winners
In early American democratic thought and practice, democracy was understood to rest on “the grand principle” of majority rule. Many state constitutions expressed this commitment in requirements that candidates could be elected to office only if they had won a “majority” of the votes cast in the election. Under these provisions, if no candidate received an absolute majority of the votes cast, the election was considered a failed election. No candidate was elected. These were called “no-choice elections” or “non-elections.”Footnote 18
This policy approach was consistent with certain democratic theory of the era, such as that reflected in the work of Condorcet (Madison and Jefferson were well aware of the work of Condorcet).Footnote 19 In his work on voting theory, Condorcet had argued that the ideal voting system was one in which the winner – whether a candidate or a policy – would defeat all other alternatives on the agenda in a series of pairwise comparisons.Footnote 20 The “Condorcet winner” was legitimately entitled to win because that candidate had received a majority of the vote against any of the other candidates. Voting systems should be designed to reveal the Condorcet winner (Condorcet recognized that, depending on the distribution of preferences, a Condorcet winner was not always possible.)
If an election failed, states employed one of two fallback mechanisms. One was to re-hold the election until one candidate did receive a majority of the cast votes. Alternatively, the power to fill the office fell to the legislature, which would then appoint someone to the office. The drawback of the first approach soon became obvious. In Massachusetts, for example, one office took twelve ballotings before a candidate was elected. At least one Massachusetts congressional seat remained vacant for an entire two-year term because voters repeatedly failed to make “an election.” In Vermont, one congressional seat remained contested over the course of ten separate runoff elections – until one of the candidates died, a definitive if sub-optimal ultimate resolution.
The alternative fallback mechanism empowered legislatures to take over the choice from the voters, including for offices such as governor. The problems with this alternative, which remained in place in some states until late in the nineteenth century, were revealed in examples like the following, from Rhode Island: voters there went through four no-choice elections for governor in five years (1889–1893) due to the persistent presence of a third party (the Prohibition Party). In the gubernatorial elections of 1889, 1890, and 1891, the Democratic candidate received more votes than the Republican candidate but was only selected over his Republican opponent by the legislature once (1890). Then, following another no-choice election in 1893, the backup contingency failed as well, and no governor was selected after the Republican Senate and Democratic House reached an impasse. Instead, the governor elected in 1892 simply held over in office for the 1893 term.
As practical experience revealed that the “majority winner” rule could lead to repeated elections and vacant seats, and as voters came to reject the legitimacy of legislatures choosing officeholders for seats designed to be elective, nearly all state constitutions shifted to providing that the candidate receiving the “plurality” of the vote would be the winner. Only two states today still have majority-vote requirements in their state constitutions, Vermont and Mississippi. In Vermont, where the legislature still appoints if no candidate receives a majority of the vote, the legislature almost always appoints the plurality winner; yet in 1976, when a Democrat won the plurality but not majority of the vote for Lieutenant Governor, the Republican legislature appointed his Republican opponent. In Mississippi, the failure of any candidate to win a majority now triggers a run-off election (other states have similar run-off requirements via statute).
The rise of plurality-voting rules means that candidates who are not Condorcet winners can nonetheless be elected. If Al Gore had been pitted in a one-on-one matchup with George W. Bush in Florida in 2000, Gore might have defeated Bush; but with the presence of Ralph Nader on the ballot, Bush won the state’s electoral votes with a plurality of the vote, 48.8 percent. In addition, strong factional candidates can also prevail.
France provides the most dramatic recent example. In the first round of the recent French presidential election, around 30 percent of the vote went to the two candidates on the extreme right, Marine LePen and Eric Zemmour. If France used a typical plurality voting system, it’s not difficult to imagine that one such candidate could have been the plurality winner; Emmanuel Macron received 27.8 percent of the first-round vote (of course, the decisions of candidates and voters would have been affected had France used a single-round plurality-vote system). But when France abolished its electoral college and shifted to direct election of the president in the 1962 constitutional reforms that created the Fifth Republic, the system sought to ensure that only candidates supported by a majority could win. Thus, the system requires a second-round runoff between the top two first-round candidates if neither received a majority in that first round of the overall vote cast (the presidential election has required a second round run-off in every election since 1965 – and in the eleven elections held since then, three plurality winners in the first round have lost to a majority in the second round).Footnote 21 If a majority prefers an extremist candidate, the French system – and most democratic systems – cannot prevent that. But it can prevent a factional extremist candidate from taking over the country simply because a plurality-voting system is in use.
2.2.2 Reforming Voting Rules to Re-establish Majority Winners
As the French example reflects, one institutional mechanism to ensure only candidates with majority support in an election will prevail is through a second-round runoff election. In the United States, two states – Georgia and Louisiana – require a runoff in the general election if no candidate wins a majority in the initial election;Footnote 22 ten states require a runoff in primary elections.Footnote 23 But runoff elections in the United States have a tainted history, at least in some states, harkening to late nineteenth-century efforts to frustrate black electoral opportunity during Reconstruction. Of the ten states that have majority runoff requirements for primary elections, seven are in the South.
At the heart of the Jim Crow assault on the franchise, the 1890 disenfranchising constitution of Mississippi adopted the majority runoff election as part of the general effort to diminish the influence of black voters.Footnote 24 When voting is extremely polarized by race in majority-white jurisdictions, majority thresholds can create “a considerable obstacle to black, but not white, office holding” by providing an opportunity for “fragmented white voters [to] regroup behind the highest white vote getter and elect that person to office.”Footnote 25 As would be gleaned from public choice theory, coherent minorities are less likely to fracture than diffuse majorities, meaning a self-identified minority can more readily leverage its political strength than a more differentiated majority.Footnote 26 A runoff gives the more diffuse majority a second opportunity to close ranks, as in effect happened in France with Macron.
A case from the North addressed the relationship of such majority vote requirements to concerns about minority vote dilution. To win the primary election for three of the most significant city-wide offices in New York City (mayor, city council president, and comptroller), state law provided that if no candidate received at least 40 percent of the vote, a runoff between the top two candidates was required. In Butts v. City of New York, this requirement was challenged as both intentionally discriminatory against black and Hispanic candidates, and as a violation of the recently enacted “results” test of the VRA.Footnote 27 The Second Circuit first rejected the argument that such requirements were racially discriminatory in purpose on the ground that they were a justified means to ensure elections reflected the preferences of an ideological majority, not a racial one. The Court then rejected – correctly, in our view – the VRA claim on the basis that while the Act protects minorities against vote dilution in representative bodies, the concept of vote dilution has no application to elections for a single office. The VRA does not, in other words, preclude jurisdictions from choosing majority-winner voting rules rather than plurality ones, even if voting is racially polarized.Footnote 28 By creating a “single-officeholder” exception, Butts insulated majority requirements for executive office from the pressures for proportionality at the legislative level.
Runoff elections are one means to ensure majority winners. But there are two practical problems with this approach in the US context. Turnout in runoffs in the United States tends to fall below that in the general election, which weakens the basis for believing the runoff ensures that only candidates with broad, majoritarian support get elected. In the 2020 Georgia Senate elections, for example, Republican David Perdue received 2.4 million votes, but fell just below 50 percent of the vote, while in the runoff, his opponent Democrat Jon Ossoff won with two hundred thousand fewer votes than Perdue had received in the first round – 2.2 million votes – due to lower turnout. That dynamic stands in contrast to France, where turnout in the second round runoff of the presidential election is typically higher than in the first round.Footnote 29 Perhaps the difference is that French voters expect to vote in a second round, since every presidential election has required that since the current system was created. The runoff is also two weeks after the first round, unlike the considerably longer delays for most runoff elections in the United States. Second, the need to hold a second election after a primary or general election imposes significant costs on jurisdictions already strapped for election-administrative funding.
Ranked-choice voting (RCV) is best understood as a means to ensure majority winners without these practical problems. To be sure, there are a number of policy rationales that proponents of RCV offer, including that it encourages a less divisive form of campaigning, permits voters to express their sincere preferences without feeling they are wasting their votes, and avoids candidates with similar policy commitments from fragmenting the vote between them and delivering the seat to a candidate with a conflicting policy agenda.Footnote 30 But at its core, the most important argument for RCV is that it denies victory to factional candidates and rewards those who demonstrate the broadest appeal to voters. Because it does this in one election, RCV avoids the cost of running a second election and the drop in turnout that often results. RCV can be seen as a modern way of recapturing the original ideal that democracy should mean that only candidates who gain support from a majority of voters should be elected. At the times states shifted to plurality-voting provisions to avoid the time and expense needed for further rounds of voting, for practical reasons, RCV was not recognized as an option. Now that it is, it can be viewed as a better alternative than plurality-voting for legitimately determining who voters want to represent them.
But RCV itself comes in different variations, and some versions do a better job of selecting for true majority winners – Condorcet winners – than others. The version of RCV that has been adopted thus far in the United States entails eliminating the candidate with the fewest first-choice votes, if no candidate receives a majority of first-choice votes. The second-choice preferences for the candidate who has been eliminated are then transferred to those candidates, and the process is repeated until one candidate crosses the majority threshold or there are no more votes left to be transferred. But as more analysis of RCV has emerged, it has become clear that this system does not ensure the Condorcet winner is elected and, indeed, can eliminate a Condorcet winner.Footnote 31 A different form of RCV that does a better job of identifying true majority winners is “Bottom Two” RCV; instead of eliminating the candidate last on first-choice ballots, this system engages in a pairwise comparison of the bottom two candidates and eliminates the one who loses in that comparison. But as Ned Foley has demonstrated, the form of RCV that comes closest to identifying the Condorcet winner is what he has dubbed “round-robin voting.”Footnote 32 This approach uses the full array of information provided by ranked-choice ballots to perform pairwise comparisons between all the candidates; if a true Condorcet winner emerges, that candidate is elected, and the system has majoritarian-oriented default rules if no true Condorcet winner exists. Modern computing capacity allows the full set of comparisons to be run in no time. To be sure, the choice of the best RCV system would also have to take into account the likelihood of strategic voting and how different versions would fare in those circumstances, a matter beyond our scope here.
RCV is winning broader acceptance in states and cities, particularly in places where voters can directly adopt political reforms through ballot initiatives. But it is still novel and voters are reluctant to change familiar rules under which they have voted for years. Whether voters would be prepared to endorse any of these more sophisticated versions of RCV remains to be seen. But even the basic form of RCV currently in use does a better job than plurality voting in diminishing the prospects of factional candidates and enhancing the likelihood that candidates with majoritarian support will win – and decide to run, knowing that the system rewards such candidates.
2.2.3 Reforming Voting Systems to Re-establish Majority Winners
American elections are a two-stage process, with primary elections preceding a general election. But primaries can filter out potential candidates who would have the broadest appeal – who would receive a majority of the vote – when the candidates are put before the general electorate. When party leaders choose their nominees – as they do in many democracies and did in the United States before the advent of the direct primary in the early twentieth century – they have strong incentives to take “electability” into account. Party leaders want to be part of winning coalitions that control government or components of it, particularly if patronage or earmarks lubricate the returns to the victors. Primary voters might choose to take electability into account, but they do not have the same incentives as party leaders and can prefer candidates who more “purely” represent, in the view of primary voters, the party’s commitments.
If primary voters prefer “purist” candidates over electable ones, they can block candidates from reaching the general election who would have the broadest support. If that happens, voters in the general election can be faced with a choice between two ideologically pure candidates, neither of whom is close to reflecting the preferences of the median voter. To return to the recent French presidential election, some have speculated that if France employed the US system of party primaries, Marine Le Pen would have ended up as President. She would have won the primary among candidates on the right, while Jean-Luc Mélenchon would have won the primary among candidates on the left, with Macron voters split between the two. In the ensuing general election, Le Pen would have beaten Mélenchon.
In the United States, voters in some states indeed perceive this dynamic to be taking place. Absent replacing primary elections with a different means of winnowing the field for the general election, the question is whether primaries can be reformed to reduce the risk of eliminating candidates with the broadest general election appeal. The most significant reform in this direction was recently adopted by Alaskan voters, who endorsed a ballot measure creating a “Top-4” primary election, with RCV to be used in the general election.Footnote 33
The Top-4 primary lists all candidates on a single primary ballot but allows candidates to designate themselves with a party affiliation, or as nonpartisan, or as undeclared. All voters vote and the four candidates who receive the most votes go on to the general election. The winner in that election is determined through RCV. This system eliminates the party primaries altogether. But it retains a primary election as the means of filtering candidates for the general election. The theory behind Top-4, to be used for the first time in 2022, is that candidates who have broad appeal are likely to be among the top four vote-getters. Because the general election uses RCV, the candidate who wins is more likely to be a majority winner than a candidate chosen through the traditional mechanism of a party primary followed by a plurality-vote general election.Footnote 34
“Sore-loser” laws, which exist in approximately forty-seven states, can be another barrier that precludes majority winners from being elected.Footnote 35 These laws accentuate the effect of traditional primaries. They bar candidates who compete and lose in a primary election from running in the general election as an independent candidate or nominee of another party. If states shifted to Top-4 primary structures, these laws would become irrelevant. But as long as we have traditional primaries, these laws enhance the way primaries can block candidates who might have broad appeal from reaching the general election. Indeed, in the last two decades, we have had two prominent examples of relatively more moderate incumbent Senate candidates who lost their primaries nonetheless go on to handily win the general election in states that did not have sore loser laws or permitted write-in candidacies of even those who had lost party primaries.Footnote 36
When the Supreme Court upheld the constitutionality of these laws, it reasoned that the primary was designed to settle the choice between contending forces within a party and that the general election ballot was “not a forum for continuing intraparty feuds.”Footnote 37 But the Court’s decision occurred in the era before hyperpolarized parties had emerged, along with concerns that party primaries were vetoing candidates whom a majority would support in the general election. In addition, a risk of permitting sore losers to compete in the general election was that they would fragment the field and make more likely the election of candidates with less than majority support. But with RCV, that problem can be eliminated today. The repeal of sore-loser laws, combined with RCV general elections, could enhance the prospects of candidates who might face tough primaries but would be majority winners before the general electorate.
2.3 Political Structures
In Federalist 10, Madison famously wrote that the expanded size of the Republic would be an antidote to faction and the guarantor of broader deliberation in the service of the public interest. History proved him wrong on both counts. National political parties eventually formed and deliberation proved more effective across the party divide than among the unrepresented citizenry. The impetus for RCV begins at the local level, where party competition is typically nonexistentFootnote 38 and the ready capture by extremes is difficult to surmount.
Consider the 2021 Buffalo mayoral election as a cautionary note. The incumbent mayor, Byron Brown, stunningly lost to a declared socialist, India Walton, who drew support from national party progressives, such as Alexandria Ocasio-Cortez. Buffalo is a reliably one-party Democratic town, meaning the party primary typically is the only election, even though the primary draws few voters. In the primary, Walton received 11,000 of the 21,000 votes cast.Footnote 39 Brown was forced to run for re-election as a write-in candidate, appearing nowhere on the ballot – in fact, there were no other candidates on the ballot other than Walton. Brown managed to win almost 60 percent of the votes, despite not being on the ballot, in an election where over 64,000 voters turned out.Footnote 40 With the weakness of the parties in terms of money and messaging, they too readily become subject to takeover by an activist minority, fueled by small donors or a few large benefactors, and reflecting the margins of electoral politics, rather than what the majority in a large-turnout election wants.
To be sure, the absence of majority vote requirements is but a subset of design defects that enshrine outsized minority control. The Senate, by virtue of the state-based distribution of population, enhances the power of national minorities, and the Electoral College can do so as well. It is possible to make the Electoral College more majoritarian, if all states, for example, would choose to allocate their electors in proportion to the popular vote in their state. But coordinating the states in that fashion, when Congress lacks the centralized power to impose a uniform approach on the states, is an unlikely prospect. Short of such options, these institutions are hardwired into the Constitution and cannot be made more majoritarian except by constitutional amendment.
But the excess factional control today pushes further to the core understandings of how democratic accountability should work. After all, following Goldwater and McGovern, the Republicans and Democratic parties veered to less ideological candidates and in short order could speak of Presidents Nixon and Carter. Partly, no doubt, the Democratic Party was exhausted by the Vietnam War and the Republican Party discredited by Watergate. More fundamentally, each party had the internal wherewithal to hew back to the center to reform an electoral foundation that could provide a governing coalition.
This pull toward electability identified by the median voter theorem might have been most realistic in an era in which party leaders had more control of both who the party nominated to run and of rank-and-file members once in office. Party leaders have the strongest incentive to internalize the need to form winning coalitions capable of giving the party strong control of a legislative chamber. Those incentives are not extinct – witness Sen. McConnell trying to play a more significant role in Republican Senate primaries after the disastrous 2012 cycle in which the party ended up saddled with unelectable nominees who destroyed the party’s opportunity to gain control of the Senate, or Rahm Emmanuel’s successful efforts as Chair of the Democratic Congressional Campaign Committee in the 2006 cycle to recruit conservative Democrats to run in competitive districts, which enabled Democrats to capture control of the House.Footnote 41
Nonetheless, the inescapable fact is that party leaders now have much less control than decades ago in both determining who the party’s nominees will be and corralling those in office to unify behind a party position. In the primaries, as politics has become hyperpolarized and more tribal, more voters are determined to vote for “purists” even if those candidates are widely viewed as less electable. With the emergence of social media, the rise of outside spending, the increasing prevalence of “safe” election districts, and the explosion of small-donor Internet-based fundraising, candidates and officeholders are now more capable ofFootnote 42 existing as independent free agents.Footnote 43 They can reach a national constituency, through cable television and social media, without being dependent on high-ranking positions on major committees. They can fund their campaigns in the manner of start-ups without being as dependent on party resources. They do not need plum committee assignments for national visibility or fundraising power. As a result, party leaders have lost significant control over who gets nominated and have lost significant leverage over members once in office. This is why the parties are more internally fragmented and more difficult for party leaders to govern. Indeed, a major theme of John Boehner’s recent memoir is his complete inability, as Speaker of the House, to control the extreme right flank of his party – what he called the “chaos caucus.” All this means the median voter theorem might well not be applicable to the current structure of politics and political competition. In the absence of stronger party institutions, the polarizing effects of small donors, campaign activists, and social media come to dominate the political scene. The newly minted verb “to primary” is now the most important disciplining device in fidelity to the agenda of the poles of the parties. This is why devices such as RCV or majority run-off or top-four, which give the majority a chance to reclaim electoral results, have become more appealing.
In the early days of the law of democracy, the Court was able to strike a major blow for majoritarianism. Even if the Court had the will to do so today, though, it is not clear how much judicial decisions can bring about the structural reforms necessary under current conditions to enhance majoritarianism. These changes will more likely come through voter-initiated measures or legislation. Such mechanisms are necessary precisely because of the inability of the party to deliver majority-appealing candidates. Yet these same majority-reinforcing tools risk obviating the need for parties altogether, and compounding the problem that gave rise to their appeal. Reforms always risk entry into the world of the second best. Here the risk is that reinforcing the majoritarian strain of democracy may further erode the party structures, whose weaknesses are a major reason for the need for majoritarian protection at present. In the absence of meaningful bipartisan competition, however, whether at the local, statewide, or even national level, current tides might require redirection in favor of the majority at present. Persistent minoritarian capture threatens democratic legitimacy. The threatened tyranny of the minority of the majority now looms as a central challenge that democratic thought, policy, and doctrine must confront.
3.1 Introduction
Free and fair multiparty elections are essential to constitutional democracy. Without them, a constitutional system will, at best, be competitive authoritarian, and at worst, fully authoritarian in nature.Footnote 1 Both electoral freedom and fairness can also be undermined in a range of ways: voters may be legally or practically prevented from enrolling or turning out to vote at democratic elections. Or they may be allowed to cast a ballot but have their votes thrown out or diluted by illegal ballots. Electoral fairness can also be undermined through subtle forms of interference – including the intimidation and harassment of opposition candidates and voters and allocation of government benefits and programs to supporters of the government.
Democratic constitutions can play a vital role in constraining and deterring electoral abuse: they can entrench guarantees of electoral fairness and integrity and empower a range of independent institutions to enforce these guarantees. This includes constitutional courts, specialized electoral courts, and independent electoral monitoring and oversight commissions (“electoral integrity” bodies).Footnote 2 And as many of the contributions to this volume show, there are notable cases in which these institutions have served to protect and promote democratic commitments to electoral freedom and fairness.
Electoral integrity bodies have relied on these guarantees to postpone and set aside elections that cannot or have not been conducted freely and fairly and to exclude candidates and parties unwilling to comply with constitutional requirements. They have also relied on these guarantees to order the counting or discounting of certain votes and recount of electoral tallies.
This relationship – between electoral integrity bodies and democracy – however, is not one-way. Democratic constitutional norms can be used to protect electoral integrity but also to undermine it. For instance, electoral integrity bodies may begin life as independent bodies but gradually be captured or co-opted by the incumbent regime. They may then apply constitutional requirements in ways that restrict rather than advance electoral participation, or undermine the political opposition, rather than support it. This, we suggest, is an example of a broader phenomenon in contemporary constitutional discourse – the problem of “abusive constitutional borrowing.”Footnote 3
There is growing knowledge worldwide of comparative constitutional norms and practices. This knowledge also extends to authoritarian and would-be authoritarian regimes, and would-be authoritarian actors are willing to use this knowledge both to inform and justify their actions. In some cases, this will involve the use of openly illiberal ideas and discourses to attack liberal democracy or liberal constitutionalism outright. But more often, it will involve the ostensible adoption of liberal democratic ideas, but in ways that are radically superficial, selective, acontextual or anti-purposive in nature, and which thus have antidemocratic effects.
In this chapter, we illustrate this problem of abusive constitutional borrowing in broad conceptual terms, but with a particular focus on its relevance to constitutional electoral regulation.
3.2 Democratic Constitutions, Electoral Regulation and the Problem of Abusive Borrowing
Constitutional democracy arguably entails a range of socio-cultural commitments on the part of citizens and their elected representatives, including commitments to fair terms of political cooperation and norms of restraint among political parties.Footnote 4 But constitutional democracy also has an important institutional dimension: at minimum, it requires a commitment to regular, free and fair multiparty elections, and the political freedoms and institutions necessary to ensure this in practice. Previously, we have called this the idea of the “democratic minimum core” – that is, the core set of norms and institutions that almost all democratic theorists agree are essential to true democracy.Footnote 5 But we also note the degree to which constitutional democracy can be understood to entail a range of thicker institutional commitments, to democratic deliberation and minority rights protection.Footnote 6
Moreover, one of the functions of a democratic constitution is to protect this democratic minimum core from erosion by temporary political majorities and promote this broader set of deliberative and rights-protective norms. Constitutions can achieve this in a range of ways: They can provide principles governing the rights of voters and parties to participate in the electoral process. They can provide for, and encourage, norms of democratic deliberation. They can prohibit – or provide for legislation prohibiting – certain forms of electoral manipulation or interference or laws burdening minority rights. They can create electoral integrity bodies and empower them to ensure the fairness of elections. And finally, they can give special protection to these electoral integrity norms and institutions, by making it more difficult to amend the provisions creating them, compared to ordinary constitutional provisions.Footnote 7 In each case, the role of constitutional norms will be to advance commitments to democracy and especially the democratic minimum core.
Instead of being deployed to advance democratic aims, however, these same constitutional commitments can be used – or misused – to justify the erosion of electoral integrity and pluralism. This, we have argued, is the essence of “abusive borrowing” as a practice.
Instead of being used to ensure an equal playing field, electoral institutions and norms can instead be used to tilt the playing field in favor of incumbents, moving a regime toward competitive authoritarianism or outright authoritarianism. They can, for example, repress competition by using a wide range of mechanisms and give undue advantages to incumbents. Of course, abuse of the electoral machinery is not the only way in which this is done – recent scholarship has highlighted a number of tools, including control over the media, the judiciary, and civil society. But electoral norms and institutions have emerged as one key tool that is, unfortunately, often ripe for abuse.
3.3 Abusive Electoral Regulation in Practice
Abusive borrowing can take numerous forms: for one, would-be authoritarian actors may seek to de-couple the form and substance of constitutional democracy in many different ways, including via radically superficial, selective, acontextual, and anti-purposive usages of liberal democratic norms and ideas.Footnote 8
Superficial forms of borrowing involves the rhetorical invocation of liberal democratic norms, without any of their substance. Selective usages involve reliance on liberal democratic structures or institutions, without the accompanying protections or exceptions necessary to make those institutions truly democratic in function. Or they involve the partial and selective grant of democratic rights and privileges to some groups (i.e., government and party loyalists), when democracy is premised on the idea of self-government among citizens as free and equal. Acontextual borrowing involves the adoption of norms and structures that help promote democracy under certain conditions (e.g., institutional independence or democratic competition), in the clear absence of such conditions. And anti-purposive borrowing consists in the deliberate adoption of institutions or structures designed to promote one goal for the exact opposite purpose – for example, restricting instead of empowering civil society.
Abusive borrowing can likewise have different audiences: Competitive authoritarian or hybrid regimes, for example, may rely on abusive forms of justification in order to preserve support from voters committed to liberal democratic norms. More fully authoritarian regimes, in contrast, may rely on such tactics only with international audiences in mind: at home, they may rely on a mix of intimidation and coercion to diffuse the risk of political opposition, but abroad, they may rely on the abusive use of liberal democratic principles to mollify donors, lenders, and defense partners.Footnote 9 In some cases, the two audiences and sets of tactics may also overlap.
Abusive tactics can also be combined with explicitly illiberal tactics and discourses. As we note in prior work, one of the justifications for some of the recent anti-constitutional populist regimes is that they are “illiberal” but “democratic” in nature. Defenders of this model oscillate between emphasizing illiberal models and precedents (e.g., Russia, China, and Singapore) and democratic comparators (e.g., Germany and the United States), with the latter used abusively.Footnote 10 This is, in effect, a form of political gaslighting. But it seems to be relatively common: in the United States, for example, we have seen a turnover the last five years toward a more nativist, exclusionary discourse of who counts as the true “people” for democratic purposes.Footnote 11 Yet former President Trump and proponents of this “Make America Great Again” (MAGA) narrative maintain that they are seeking to uphold existing democratic constitutional traditions.Footnote 12
3.3.1 Voting Rights and Participation
Take norms of equal participation, or equal access to the franchise. Norms of this kind are central to individual political rights and free and fair elections. They help ensure that all voters have equal political freedoms and that rival political parties compete on terms of substantive equality.
Practices that undermine rights of political participation, therefore, can have wide-ranging effects. Think of measures in the United States that increase hurdles to voter registration: these laws undermine the political equality of poorer or minority voters, and the electoral prospects of those parties and individuals they are most likely to vote for (i.e., Democrats).Footnote 13 The same is true of the citizenship laws passed in India in 2019, which effectively disenfranchised large numbers of potential Muslim voters and further undermined electoral support for the Congress party compared to the (Hindu-nationalist) BJP.Footnote 14
By enshrining the right to vote, democratic constitutional norms aim to guard against these risks. Yet the right to vote can also be the target of abusive constitutional borrowing: Laws that expand access to the franchise can be passed not with a view to levelling the electoral playing field but, rather, to tilting it in favor of the incumbent political regime. Often, this will simply involve the selective expansion of voter rights, or rolls, in ways predicted to favor the government.
Laws passed in Hungary and Fiji illustrate the danger. In Hungary, after adopting a new constitution in 2011, the Hungarian Parliament passed legislation expanding access to citizenship for many people of Hungarian descent living outside of the country, including approximately one million people in neighboring countries in Eastern Europe.Footnote 15 At the same time, it made it more difficult for existing Hungarian expatriate citizens to vote. The logic was simple: Hungarians in neighboring countries were known to be more supportive of the government than the median voter within the country, whereas those in the West were seen be more critical than the average domestic voter.Footnote 16 And this prediction was borne out in increased electoral support for the incumbent Fidesz government at subsequent parliamentary and presidential elections.Footnote 17
In Fiji, there has been a long-running battle for political control between rival factions and parties loosely allied to Indo-Fijian versus ethnic Fijian interests. There have also been a series of military coups, in 1987, 2000, and 2006. The most recent coup, in 2006, was led by Commodore Frank Bainimarama and led to the suspension of the 1997 Fijian democratic constitution. A key part of the rhetorical justification for the suspension of constitutional democracy by Bainimarama was a claim that his post-coup regime was promoting greater political equality between indigenous and Indo-Fijians.Footnote 18
3.3.2 Electoral Equality and Quotas
Another core democratic commitment is to ensure equal access to political office. This principle guarantees equality among citizens seeking high office and, even more important, equality among citizens in their ability to elect representatives able to represent their experiences and concerns. But, of course, in practice there are many obstacles to realizing this commitment, including voter prejudices and differential access to political networks and resources.
One common constitutional response is the creation of “reserved seats” or quotas within the legislature for disadvantaged groups. In India, for example, the Constitution provides that at least one-third of seats in “panchayats” or local councils are reserved for women as well as allowing for reserved seats (in proportion to population) for both “Scheduled castes” and tribes.Footnote 19 In Kenya, the 2010 Constitution likewise provides for reserved seats for a range of disadvantaged groups, including women, young people, and the disabled.Footnote 20 These provisions are seen to advance the goals of democratic participation and equality.
Electoral quotas, however, are also potential targets for abusive borrowing. That is, they can be used contextually and anti-purposively to advance the interests of incumbent political regimes, rather than ordinary voters.
Take gender quotas in Rwanda. Rwanda is widely celebrated internationally for achieving high levels of descriptive representation for women – in parliament and the judiciary. Indeed, Rwanda leads the world on most league tables for female representation in parliament.Footnote 21 And it has achieved this in part through ambitious gender quotas, which reserve 30 percent of seats in parliament for women.Footnote 22 The problem with these quotas, however, is that women are appointed rather than elected to these seats, in ways that further advance the electoral dominance of the ruling political party (the Rwandan Patriotic Front). In effect, they therefore advance the authoritarian, rather than democratic, nature of Rwandan politics.
3.3.3 Electoral Integrity, Timing, and Oversight
A third democratic principle is the principle of fair elections, or elections free from coercion or intimidation of voters, irregular voting, or the loss or destruction of votes cast for the political opposition.
Democratic constitutions advance this principle directly and indirectly. In some cases, they expressly regulate the fairness of elections. Section 81(e) of Kenya’s Constitution, for instance, provides that the electoral system must ensure free and fair elections, which are: “(i) by secret ballot, (ii) free from violence, intimidation, improper influence or corruption, conducted by an independent body, (iv) transparent and (v) administered in an impartial, neutral, efficient, accurate and accountable manner.”Footnote 23
Many constitutions also indirectly regulate electoral fairness by providing for electoral oversight by independent electoral integrity bodies. Section 190 of the South African Constitution, for example, provides that the Electoral Commission must (a) manage elections of national, provincial, and municipal legislative bodies in accordance with national legislation; (b) ensure that those elections are free and fair; and (c) declare the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible.Footnote 24 More recent constitutions – including the Kenyan Constitution – have adopted similar provisions modeled on the South African approach.
Together with courts, these electoral integrity bodies have exercised their powers to uphold guarantees of electoral fairness. In Kenya, for example, there were credible suggestions in the 2017 presidential election of millions of votes being lost or discounted due to difficulties with electronic voting.Footnote 25 The Supreme Court invalidated the election and ordered the Electoral and Boundaries Commission to organize a new one.
The same machinery for upholding electoral fairness, however, can also be used – pretextually – to undermine it. Courts and electoral commissions can rely on the language of unfairness to undermine confidence in the results of a democratic election, or to indefinitely postpone fresh elections, in ways that create a form of de facto electoral dictatorship.
In Myanmar in 2020, for example, the Electoral Commission repeatedly canceled elections across the country, but especially in Rakhine state. As Renshaw and Lidauer note, these decisions “on election cancellations and postponements temporarily disenfranchised 1.2 to 1.3 million voters and left 22 seats in the Union parliament vacant. In Rakhine State, three quarters of all registered voters were disenfranchised by these measures.”Footnote 26 The reason given was that the security environment did not allow free and fair elections, but the consequence was an ongoing and selective suspension of democracy.
Following a coup by the military junta in 2021, the new military-appointed government also appointed an eleven-member State Administration Council (SAC), headed by the Commander-in-Chief, which appointed new members to the Union Election Commission.Footnote 27 Shortly after the Commission announced that it had “begun its investigation on the voter fraud in the 2020 general elections.”Footnote 28 On this basis, it also sought to discredit the prior democratic government, when most independent observers saw only minor rather than widespread irregularities.Footnote 29
3.3.4 Militant Democracy and Party Banning
Following the important example of postwar Germany, a number of modern constitutions have instantiated militant democracy clauses that allow for anti-democratic or anti-constitutional parties to be banned. The basic idea of a militant democracy clause is that there are limits to the kinds of parties and movements that a liberal democratic order should tolerate and that some movements should be prohibited before they can become a threat to the democratic order itself. The rise of the Nazi party is often taken as an example of this kind of threat; and in the immediate aftermath of World War II, the new Constitutional Court in West Germany twice was used to ban political parties, first a neo-Nazi party and then, in a more difficult and longer decision, the Communist party.Footnote 30 Globally, work by Elkins and Ginsburg has found that the power to ban political parties is one of the most common “ancillary powers” of a constitutional court, with about one-third of courts having this power.Footnote 31
But naturally, the extraordinary power to ban a political party is one that can be used to entrench authoritarianism rather than staving it off. Cambodia offers probably the most dramatic recent example. In the country’s 2013 elections, in a shock result, the opposition Rescue party nearly won control of the Parliament, winning 55 of 125 seats in the national Parliament. The authoritarian regime in Cambodia, under the grip of the Cambodian People’s Party (CPP), looked to be on the verge of democratizing.
But after initial negotiations failed, the CPP instead turned to the Cambodian Supreme Court, asking it to ban the Rescue Party. The Court, which was completely controlled by the regime, complied in 2017. It technically issued a default judgment against the Rescue Party, but it dove deeply into the merits and found the charges against the party to be substantiated.
The Court found that the party was under the control of a foreign power – in this case, the United States – by citing some of the speeches of its leadership. Most interestingly for our purposes, the decision sounded in the language of militant democracy, albeit abusively. The Court held that the Rescue Party itself was a threat to “multiparty democracy.” It found support for this view in the fact that speeches and statements by party leaders used so-called color revolutions, such as those found in the post-Soviet world, as a model for what might lead to transition in Cambodia. Of course, these color revolutions were themselves generally attempts to democratize an authoritarian regime.
The result of this decision was quite dramatic. The Rescue party itself was dissolved: it lost all 55 seats in parliament and 100 of its party leaders were banned from politics for five years. In the next election, the CPP essentially ran an uncontested election, and won all 125 parliamentary seats. Rather than forming a “near miss” for a slide into authoritarianism, the Cambodian case perhaps situates the Supreme Court’s decision as a “near miss” for democratization.Footnote 32
The Cambodian case is not the only potential example of judicial use of militant democracy to undermine rather than support free and fair elections. Thailand offers what is in many respects a more ambiguous and difficult, but potentially interesting, example. Not long after the populist Thaksin Shinawatra won power in 2001, the judiciary began issuing decisions overturning his electoral victories and banning him and his allies from politics. Intermixed with a militant democracy cast was, as well, a kind of technical conception of the rule of law. The 2006 parliamentary elections, for instance, were annulled by the Supreme Court in their entirety on the grounds that the incumbent regime had breached several relatively technical aspects of national electoral law.
In 2007, Thaksin’s party was banned by the Constitutional Court; in 2008, the Court also dissolved a successor party, and in 2014, it removed Thaksin’s sister from the role of caretaker prime minister.Footnote 33 Between 2005 and 2014, the judiciary annulled the results of the 2006 election, removed three prime ministers, banned several incarnations of Thaksin’s parties, and prevented much of its leadership from seeking political office.
These actions occurred in a climate of increasing authoritarianism in Thailand. In 2006, the military carried out a coup and seized power in order to rewrite the constitution; a second coup in 2014 had more permanent effects, and the country has not had elections since. We have little doubt that the effects of the Thai decisions were negative for the democratic minimum core. What makes the case difficult, at any rate, are two features. The first is that, unusually, the actions were being taken against what was often the incumbent regime, not in favor of incumbents. In comparative terms, this is unusual. McCargo has argued that these actions were being taken by a diffuse set of actors labeled the Thai “network monarchy,” a group including large parts of the judiciary and military, essentially a set of actors with ambivalent views toward democracy and who strongly disliked Thaksin.Footnote 34
The second, more fundamental point is that Thaksin and his allies were, without question, themselves something of a threat to democracy, unlike (say) the Rescue Party in Cambodia. As a populist, Thaksin took steps to seek to consolidate power and undermine opposition groups. He undermined the independence of key checking institutions, including the Electoral Commission as well as other institutions like the Human Rights Commission. The Thai case thus may show how difficult the balance involving militant democracy can be in a new democracy, where anti-democratic threats may emerge from multiple sides.
3.3.5 Electoral Commissions and Fraud to Stymie Democracy: Venezuela
Venezuela offers a textbook example of the use of electoral commissions and courts as tools to undermine rather than support democracy. Over a long period of time during the Chavez and Maduro administrations, these institutions have been used to tilt (increasingly aggressively) the electoral playing field in favor of the regime, while making life increasingly difficult for political opponents.
After Chavez’s death in 2013, Maduro won a close election. The Venezuelan constitution contains an unusual clause in comparative perspective, one that allows a recall of sitting presidents, although only within a fairly narrow period of time. Chavez famously faced (and easily won) such a contest in 2004, a survival that actually helped him consolidate power.
After the opposition won overwhelming control of the National Assembly (the unicameral legislature) in 2015, it sought to hold a recall vote in order to remove Maduro from power. Given the political context, one in which Maduro’s allies had just been trounced despite an uneven playing field, there is a very good chance Maduro would have lost such a recall. But it was never allowed to go forward.
The recall process is multistage. After the opposition surpassed the first stage by gaining signatures from 1 percent of voters, the process moved to a second stage, requiring gathering of signatures of 20 percent of voters, a very onerous percentage to trigger the recall election itself. The National Electoral Commission (CNE) set what were essentially impossible conditions for the recall. On dubious textual grounds, it required that the 20 percent quota be met in every state, rather than merely nationally as in the 2004 recall election. More importantly, it provided an incredibly short time period for the signatures to be gathered – three days. Even with these impossible conditions, the CNE never allowed the second stage to go forward. Instead, it suspended the entire process based on rulings from lower courts that “fraud” had occurred in the gathering of signatures.
Similarly, accusations of electoral fraud were foundational to the regime’s effort to nullify the power of the opposition-led National Assembly. The Electoral Chamber of the Supreme Court held that three electoral results in the 2015 election had been tainted by fraud. These three seats were important because they would have given the opposition a two-thirds supermajority. When the Assembly rejected the accusations and seated the three legislators anyway, the Supreme Court held the Assembly in contempt, beginning a long process through which the Court would essentially strip all power from the Assembly, leaving it unable to legislate, while transferring most of this power to Maduro.
This is a key point we shall return to in Section 3.4 – accusations of fraud, whether fictitious or just highly selective, seem to be key tools in an abusive discourse that uses electoral rules to undermine democracy.
3.4 Abusive Electoral Integrity Discourse
Another dimension to modern democratic governance is transnational in nature and involves the monitoring of electoral fairness by governmental and nongovernmental actors. These electoral monitors observe elections in new or at-risk democracies and hold governments to account by informing donors, allies, and international civil society about the fairness of the electoral process.
The Carter Center, established by former US President Jimmy Carter, is a good example. The Center has sent electoral monitors to observe 115 elections in 40 countries, and states the role of these observers as follows:Footnote 35
Election observation missions start long before election day, with experts and long-term observers analyzing election laws, assessing voter education and registration, evaluating fairness in campaigns, and monitoring the impact of social media. On election day, observers assess the casting and counting of ballots. In the days and weeks after the election, observers monitor the tabulation process, electoral dispute resolution, and the publication of final results. Before, during, and after an election, the Center’s findings are reported through public statements.Footnote 36
Where voting irregularity is detected, the Center frequently calls these irregularities out, including in the international media. And this combination of electoral monitoring – and discourse about democratic fairness and integrity – has undoubtedly contributed to fairer elections. The discourse of electoral integrity, however, has also been the increasing target of abusive borrowing in the United States.
In the lead up to, and following, January 6, 2021, former President Trump and his supporters have consistently advanced the claim of electoral irregularities in the November 2020 presidential election. They use those claims to encourage supporters to undermine the minimum core of American democracy. They have drawn on pro-democratic arguments about electoral integrity to do so. In 2005, for instance, the Carter Center issued a report focused specifically on the dangers of fraud in postal voting.Footnote 37 Mail-in voting has been at the center of Trump’s baseless claim that the election was stolen.
#Stopthesteal is therefore not just any anti-democratic discourse: it is a discourse that involves the abusive borrowing of commitments to electoral integrity to erode democratic commitments to alternation in office and the peaceful transfer of power.
Even before the 2020 election, Republicans used the claim of fraud as a tool to tilt the electoral playing field in their favor. In September 2020, for example, Senator Rick Scott introduced the federal “VOTER” Act, which would have made it more difficult for citizens to obtain and return mail-in ballots (despite the ongoing pandemic) and would have set an absurd, essentially impossible deadline for the counting of those ballots. Yet Scott defended the law as an effective expansion of the right to vote, emphasizing that the right to vote was “fundamental to our democracy” and “a sacred right that we must protect and cherish.”Footnote 38 In effect, the proposal used the (essentially nonexistent) specter of fraud in federal U.S. elections to frame major voting restrictions as pro-democratic. The same discourse, of course, has animated a series of state-level Republican laws since the 2020 election, which (unlike Scott’s federal bill) have passed and imposed new restrictions on mail-in voting and other topics.
As we discussed above, claims of fraud seem to be a particularly pervasive part of an abusive discourse that seeks to use electoral norms and institutions for anti-democratic ends. We discussed the example of Venezuela above; Varol – in a piece on “stealth authoritarianism” – has collected other examples.Footnote 39
In Brazil, Jair Bolsonaro has also relied heavily on an electoral discourse that emphasizes voter fraud. Gearing up for a possible loss in 2022 to prior president Lula, Bolsonaro in 2021 launched a series of interviews and speeches alleging that the country’s electronic voting system could well be rigged and that there would be no way to know.Footnote 40 As in the United States, these claims fueled violent outbursts aimed at national institutions in the aftermath of Bolsonaro’s loss.
3.5 How and Why Abusive Electoral Discourse Succeeds
An important question raised by these patterns is what underpins the success of abusive electoral tactics. One key factor is that in most democracies, electoral integrity depends on a series of honest and competent actions (e.g., ballot distribution and vote tallying) by a large number of decision-makers, none of whom are directly known to or visible to the public. This means that electoral integrity is a matter of elite institutional culture and competence, as well as public trust.
Trust can be eroded in a range of interconnected ways: first, governments may choose systematically to erode the independence, professionalism, and competence of relevant oversight institutions. Second, political elites may choose to make claims that exaggerate the magnitude or unusual nature of electoral misfeasance or misconduct, in ways that ordinary voters are poorly placed to assess. And third, populist movements may decide to target all forms of representative, trust-based models of decision-making, in ways that contribute to a narrative of distrust of voting systems and electoral processes.
As Muller explains, this plays into the argument of authoritarian populist leaders that they are the only legitimate representatives of the people. Thus, opponents can only win by cheating, and in turn accusations of cheating play into accepted narratives about the behavior of those opponents. This also explains why many narratives of voter fraud involve the “other” in populist narratives. Consider the frequency with which Trump and other Republican claims of fraud have involved baseless claims involving undocumented immigrants.Footnote 41
The use of voter fraud as an abusive tactic is a case in point. Claims of fraud will often be especially powerful tools for abuse – in part because they have an emotional and democratic charge that technical violations of legal rules simply do not have. The requirement of a free and fair election is, after all, at the core of democracy, so an accusation that the opposition is not playing fair is a damning argument. It is not simply that the opposition has failed to comply with some technical requirement: they are cheaters.
Moreover, some claims of fraud may have at least a whiff or kernel of truth, even if the underlying claims that they swayed electoral results are completely baseless. In some new or more fragile democracies, various forms of fraud are relatively common, and so captured courts and regime allies can point to plausible examples. But even in well-functioning democracies, there will generally be some examples of voting irregularities. What is critical for democratic functioning is that (a) these examples are few and far between and (b) examples of this kind often tend to be more or less random from the perspective of overall electoral outcomes.
In the United States, for example, academic and policy reports find fraud to be extremely rare. But it is not unheard of. Some voters actually do vote twice, as uncovered in media reports and highly uneven legal responses. And in extremely close elections, fraud may even place the outcome in doubt. In a 2018 congressional election in North Carolina, for example, an operative for the Republican candidate was accused of engineering an absentee ballot scheme involving several hundred absentee ballots, and the razor-thin election was ordered nullified and rerun by the state board of elections.Footnote 42 But in the vast majority of elections, minor voting irregularities have no impact on the overall result, and a small number of invalid votes are cast that benefit both major parties.
When in these circumstances political elites cite fraud to cast doubt on the result of a democratic election, they are engaging in a classic form of an abusive borrowing tactic: they are knowingly exaggerating both the magnitude of irregularities and the degree to which they are likely to benefit one side over another.Footnote 43 This is also the hallmark of abusive forms of selective, acontexutal discourse or “borrowing.”Footnote 44
3.6 Conclusion
What if anything can be done to counter these abusive tactics as tools for the erosion of democracy and the democratic minimum core? The problem is obviously complex and the range of potential solutions relatively few. Yet understanding the causes of the problem also helps point to some limited responses.
As other contributors note, the strength and independence of electoral oversight can be constitutionally guaranteed or entrenched via heightened super-majority or popular approval requirements for their repeal or amendment. Indeed, this accords with our argument elsewhere that aspects of the democratic minimum core should receive heightened protection under a “tiered” model of constitutional amendment and design.Footnote 45
Further, constitutional democracies can do more to recognize the importance of repeat players to their health and functioning: long-run players generally have a strong incentive to maintain justified public trust and confidence in the political system. Doing so increases the chance that the existing democratic system will survive and their individual position within it will be meaningful and respected.
“One-shot” players – that is, independents, third-party candidates, or mavericks (such as President Trump) engaged in a hostile take-over of an established party – in contrast, will have quite different incentives.Footnote 46 Their incentives will be to use rhetoric that can challenge the status quo and encourage their entry into the political system, even if it comes at the cost of a long-run loss of faith in the system as a whole. And while this does not mean that there is no role for such players in redirecting and revitalizing democratic politics, it does suggest that this role necessarily comes with risks. Political parties and their representatives are not immune from these incentives, but they have counterbalancing incentives to maintain faith in democratic electoral processes.
Finally, political incumbents could do more to adopt a mix of reforms and public rhetoric designed to increase public trust in democracy. One of the challenges for constitutional democracies is that public trust in the electoral process is essential to the preservation of democracy but that rebuilding trust is extremely complex. In the long run, measures such as stricter electoral monitoring, voter identification requirements, and integrity norms may help strengthen public trust in democracy.
But in the short run, their enactment may actively decrease public trust: minority voters may experience the decision to adopt measures, such as voter ID laws, as a deliberate attempts to disenfranchise or dilute their voting power, thus undermining trust in democracy as a system based on principles of equality. The challenge for defenders of democracy is to adopt measures that are helpful to promoting electoral integrity, without overplaying the necessity of such measures or the “broken” nature of the current electoral system.
Similarly, political incumbents could do more to educate citizens and voters about the residuum of “error” in ordinary constitutional politics. By itself, awareness may do little to increase trust in decision-making. In fact, it may increase distrust and cynicism. But if that awareness is accompanied by a repeated emphasis on the small-scale, insignificant nature of this error, the salutary benefits may be far greater. Instead of being blindsided by a claim of voter fraud and then being ready to discard a valid electoral outcome as a result, voters may be more willing to ask: How much fraud, when, where, and with what effect? In some cases, the answer may be too much for an electoral result to be accepted. But more often than not, in most consolidated democracies, the answer will be different: not enough to cast doubt on the result of a democratic election, or to buy in to abusive attempts to discredit it.
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