Why US Elections Are Controversial and Its Democracy Is Distressed - A Personal View

Updated on November 9, 2022: The November 8 polls generally ran smoothly with high electoral participation, including among young voters. Women candidates did well, and the vote on all five state referendums on women's right to reproductive health supported that right. There were historic firsts victories for African American and other minority candidates. These are big plusses for America's democracy. Yet, acute challenges to US elections and its democracy continue.

Threats to American democracy and its elections did not start in 2020, and, unfortunately, they will continue intensifying in 2022, 2024 and probably for a considerable time beyond. Hyper-polarization and authoritarian views on one side, which is highly mobilized and has supported violent insurrection when it lost, do not bode well for upcoming elections nor for broader political processes. Lack of appreciation concerning the seriousness of the threats combined with complacency about the strength of democratic systems and dissatisfactions with the results of politics and economics lowers participation and adds to the difficulties in meeting the threats.?

Both immediate and long-term factors are responsible for the current crisis conditions in US elections and democracy. A global and somewhat historical perspective on the present American dilemma helps to provide some clarity. Here are several key factors, first in the immediate context and then in the more historical frame.

Election Deniers and the MAGA Movement Create Distrust in Order to Gain Power

“Election denial” projected by the Make America Great Again (MAGA) movement has captured one of the country’s two major political parties. Even though there is no legal or factual basis for it, a majority of Republican nominees for federal and state-wide offices in the November elections either outright denied or questioned the legitimacy of the 2020 presidential election, according to a Washington Post?analysis . A majority of the 370 such candidates, 210, were elected as of mid-day November 9, according to a New York Times report , including to Congress, Governors, and Secretaries of State, who will run the 2024 elections in their jurisdictions. There is a strong chance that control of at least one house of Congress will switch to them as a result of their victories. Even where they lose, and several key deniers lost conceding to their opponents, they have built their movement, and it is fair to speculate that they will continue to challenge the legitimacy of the electoral process as part of a campaign for 2024 and their gaining more power thereafter.

MAGA’s election denial campaign is melded with a variety of anti-immigrant, white-supremacist, misogynistic, and anti-LGBTQI+ beliefs, which postulate that liberals have an evil intent to destroy the country. Many in the movement advocate for autocratic measures and even violent suppression of their “enemies”. While false claims of fraud and anti-democratic postures wrapped in chauvinistic nationalism are not new in this world, the level is extreme in the US, where no other former President has fomented such developments.?

There is resistance to the MAGA movement among some traditional Republican Party leaders, which is noteworthy. There are also some extremists on the other side of the political spectrum, though their numbers are limited and pose little threat to democracy. While many see MAGA as a danger to democracy, and the Supreme Court’s decision overturning the constitutional right to abortion is causing mobilization against suppressing women’s rights, the MAGA’s momentum will likely be sustained. That will be the case irrespective of any particular leader. It is not simply a Donald J. Trump phenomenon.????

Possible Subversion of Election Processes.?In many states, particularly the political battle grounds, the MAGA movement recruited and trained supporters to become election officials, to act as party polling agents, and to act outside the polls and ballot drop-boxes. Numerous mainstream media report that their training included being highly contentious in scrutinizing voting procedures and challenging the qualification of voters, which could disrupt processes. Additionally, MAGA spokes people are quoted as saying they intend to gather any possible pretext to challenge the legitimacy of the November elections. That could result in bad-faith court proceedings that clog the results process and sow mistrust in it, as happened following the 2020 elections, which remains to be seen.

Events like the January 6, 2021, violence to block Congressional ratification of the presidential election outcome are not as likely for the November 2022 elections. However, violent rhetoric is manifest at MAGA rallies, which often exclude or are hostile to the press.

Phoenix, Arizona, ground zero for election deniers in that battleground state, provides a troubling example. Mainstream media report that visibly armed MAGA activists photographed voters who placed their ballots in some drop-boxes as part of early voting and placed the photos on the internet and while spreading disinformation. A federal judge on November 1 ordered them to stop those activities. Such acts of intimidation have a chilling effect on potential voters and could lead to violent confrontations that would undoubtedly be weaponized on social media undermining public trust. MAGA spokes people pledged similar tactics in other battleground states. Democrats and nonpartisan groups mobilized polling agents and observers, though it is unclear that they could match the MAGA “flood the zone” approach or whether there will be confrontations at a significant number of polls in the future.

Negative Impact on Election Officials.?The context is further colored by continuing false charges of election fraud in the 2020 elections and in some of the 2022 primaries, with many election officials overtaxed from meeting frivolous requests for information and debunking false charges from MAGA sources. That could have had negative effects on electoral preparations in some localities. Threats of violence to many election officials and their family members from election deniers have further complicated the electoral circumstance.?

The widely respected Brennan Center for Justice and the Bipartisan Policy Center?report ?that a third of election officials feel unsafe because of their jobs, and approximately 20% are concerned about threats against their lives. In several states laws were modified adding criminal liability for errors made by election officials or making it easier for partisan interference. These factors add to turnover, with loss of institutional knowledge, and open doors for bad-faith actors to work the polls. That is part of an ongoing challenge to maintaining and recruiting the more than 600,000 poll workers needed for US elections, while politically impartial and effective polling administration remains essential for electoral credibility.?

Impact on Opportunities to Vote.?Election deniers are also using the false claim of widespread election fraud as a pretext to limit opportunities to vote. Since January of last year, 21 states, mostly where conservatives control the legislature, passed laws restricting opportunities to vote, according to a Brennan Center?analysis . Some of these states are the ones that passed laws undermining impartial election administration. Such laws reinforce the actions of MAGA activists inside and outside of polling places.?

The same analysis shows that at least 12 states expanded opportunities to vote, which illustrates differences in approaches to universal and equal suffrage. Those defending electoral rights are mounting court challenges to restrictive laws and racial and extreme political gerrymandering. There are also concerted efforts to counter disinformation, to mobilize voters despite obstacles, and to support election officials. Plus, in many jurisdictions the elections process is not under as much stress as others. Nonetheless, problems even in limited cases will likely receive outsized attention, certainly in MAGA media circles, that will fuel the national controversy.?

The Broader Context Critically Affects the Current Crisis in US Elections and Democracy

The roots of the current distress run deep in American history, while developments have been exacerbated over recent decades and sharpened in recent years. Racial injustice, economic inequity, distrust of government, and use of political violence all are part of the problem, while complacency and a sense among many that all politicians are somehow corrupted drains energy from the broad historic movements to improve American democracy. Sharp increases in economic disparity, affects of the opioid epidemic and covid pandemic, concern about crime, and weaponization of social media to spread disinformation and create mistrust in elections and government all contribute the current challenges.?

Like every country, the US historical frame is important. The spirit of the Declaration of Independence embodies the concept of popular sovereignty that all are created equal with certain unalienable rights and that governments are based on the people’s consent in pursuit of those rights. That sovereignty resides in the people and the authority of government derives from their free will exercised in credible elections became a global democratic norm espoused in the Universal Declaration of Human Rights, numerous treaties, and almost all modern constitutions. Universal and equal suffrage through elections is a means of implementing the belief that sovereignty resides in the people and is equal among each person.?

Historical Faults.?The US framework contains historical faults that continue to affect electoral matters and broader social interaction. Those faults are cultural as well as legal. The thirteen original, separate colonies that formed the country each had their flaws as well as strengths. Perhaps their best-known fault was limiting the right to vote to only white land-owning or in some cases tax-paying men, who constituted about six percent of the population at the time. That effectively negated true popular sovereignty in favor of a particular landed elite.

Women, enslaved people, people of the native nations, and many white men were disenfranchised by law in the states. The initial property and tax requirements were eventually lifted, which benefited white men. Formerly enslaved men gained the right to vote in 1870 following the Civil War. Women won the right to vote in 1920, the consequence of an intense struggle for suffrage. People of native nations gained voting rights in 1924. Forty-seven years later, in 1971, the voting age was lowered to 18 from 21, further extending the franchise.?

Each expansion of voting rights was hard won, and pushback persisted on many fronts, which continues today through voting restrictions advanced under the false banner of protecting against election fraud. Voting rights of African Americans were eviscerated not long after the Civil War, through “Jim Crow” laws requiring voting taxes and impossible so-called literacy tests and through white supremacist terrorism to suppress the population politically and otherwise. The modern civil rights movement, which lost lives to racist violence in voter registration drives and other contexts, won passage of the historic 1965 Voting Rights Act. The current attacks on that law underscore the need for a continuing movement for protection of popular sovereignty.

Genocide against native nations was a form of political violence through conquest and disenfranchising people in their own land. Though citizenship and voting rights were extended, state laws and regulations to this day hinder many native people from voting, though they have marshalled a strong movement for their voting rights. Mexican citizens who were incorporated into the US by adding territory as a result of war and those who traveled here from Latin America and Asia face historic barriers to voting in the US Southwest, West and elsewhere. White supremacist ideology has justified such disenfranchisement, which became a focus of Voting Rights Act enforcement efforts.?

The reinforcement of the Voting Rights Act passed by the current US House of Representatives and for which there is a 51-vote majority in the Senate is blocked by those invoking the filibuster, which requires a 60-Senator supermajority to overcome. This illustrates that the tug of war over voting rights and popular sovereignty that started with the founding of the US continues unabated, though it varies in intensity at different times.

Counter-Majoritarian Mechanisms.?The original, independent colonies that formed the country had to overcome distrust of each other and the ineffective government of the Articles of Confederation (under which there were no national elections). Adopting the US Constitution required instituting measures to gain acceptance among less populous states, among the measures were counter-majoritarian mechanisms.?

The mechanisms included instituting the US Senate with equal representation of all states no matter their population size. They also included creation of the presidential Electoral College, which gives each state a number of electors equal to its number of Senators plus the number of its members of the House of Representatives. These mechanisms give less populated states an advantage in Congress and through the indirect election of the President via the Electoral College. The direct election of the President by a national popular vote could result in a different outcome than the Electoral College produces, which we have seen in recent elections.?

The District of Columbia, the national capital of Washington DC, is not a state though its population is greater than that of two states, Vermont and Wyoming. The District was granted Electoral College votes in 1961, though it is still denied voting representation in Congress. The peoples of US territories are citizens, but they do not have Congressional voting representatives either nor do they participate in the Electoral College.??

Each of these measures negates equal suffrage of US citizens, disadvantaging voters in the more populous states, Washington DC, and arguably the US territories.

The Elections Clause.?The Constitution says that the state legislatures are to provide the “times, places and manner” for holding elections to national office, with the critical proviso that Congress can by law make or alter such regulations. That gave states the ability to subvert universal and equal suffrage in the absence of congressional action. The states’ Jim Crow laws and racial and extreme political gerrymandering are examples of such of such abuses. The Voting Rights Act is a clear example of Congress implementing the elections clause to override state abuses, though the law has been weakened by conservative Supreme Court decisions.??

The debate at the 1787 Constitutional Convention shows was the elections clause was drafted with distrust of unchecked state legislative powers, and there is no indication that the drafters saw state legislatures as floating free from their state constitutions. However, theorists aligned with the MAGA movement postulate that the “times, places and manner” provision of the elections clause gives state legislatures complete power, free from checks and balances of state constitutions by which state courts and executive branches can prevent or remedy legislative abuses in the electoral arena. This so-called Independent State Legislature theory is presently being advanced before the US Supreme Court in cases concerning racial gerrymandering in Alabama and North Carolina.?

The cases also have implications for the composition of states’ members of the Electoral College, which reflects the importance of constitutional interpretation at this national juncture. The theory argues that state legislatures can send members to the Electoral College who support their favored presidential candidate even if the certified election results show that another candidate won in that state. This notion claims that the Constitution’s “elector clause” frees state legislatures from state constitutional checks and balances. The theory thus upends popular democracy at the state level and nationally.

The Filibuster.?The filibuster, another significant counter-majoritarian mechanism, is not constitutionally mandated. It is an internal rule of the Senate. When a filibuster is invoked, it takes a super-majority vote of 60 Senators to override it so that a bill may then pass by a simple majority. The means of sustaining the length of a filibuster have eased over the years, and it is now routinely used. Freezing passage via the Filibuster of the Voting Rights Advancement Act and the Freedom to Vote Act are recent pertinent examples.?

Historic Mistrust of Government.?The United States was founded through a revolutionary war against an absolute monarchy. Citizens joined into colonial militias in that fight, and upon victory many citizens continued to mistrust government, particularly a central national one. The first union of states, which lasted eight years under the Articles of Confederation, provided for no executive branch or federal courts, let alone national voting. The 1786-87 Shay’s Rebellion against state taxes and other matters in Massachusetts and Pennsylvania’s 1791-94 Whisky Rebellion against the first national tax, which took George Washington leading a force of 13,000 militiamen to suppress, demonstrate an anti-government current that runs to today’s political dynamics. The use of arms in early American history also carries through to today’s proliferation of weapons making hyper-polarization more dangerous, particularly as ultra-right extremist groups align with the MAGA movement. The violent insurrection on January 6, 2021, illustrates that the danger is not simply theoretical.

Economic and Related Discontent.?The pursuit of happiness includes securing economic and broader wellbeing. The extreme concentration of wealth in less than 1% of the population, while average citizens lost economic ground over recent decades, creates understandable discontent. The deregulation approaches of neo-conservatives and neo-liberals represented by policies of both major political parties feeds that economic dynamic, which causes many to reject traditional leaders of both parties as ineffective or uncaring. Like other countries where nationalist-populists built their power, the MAGA movement tapped into current economic discontent and exacerbates it through its rhetoric and disinformation, which makes it difficult for traditional political leaders to showcase positive impact of their policies.?

Related to economic discontent is outrage over an epidemic of opioid addiction and tens of thousands of consequent annual deaths over the last two decades. The covid pandemic added a layer of frustration to outrage for many, which is preyed upon by the MAGA movement. A third factor is the significant rise in crime rates since 2019, though they are still significantly below the peaks of the 1980s through early1990s. The MAGA movement capitalizes on fear of crime and ties it to the urban-rural divide insinuating that “bad things happen in big cities”. That relates to its false claims of widespread election fraud and its attempts to set aside the vote of certain big cities to flip the 2020 presidential result.?

Disinformation and Information Disorder.?A major factor in the threats posed to elections and democracy in the US and across the globe is the lightning speed and multiple bombardments of false and misleading information that forces people into info-silos and echo-chambers. The MAGA movement weaponizes disinformation through social media platforms, podcasts, right-wing radio and television networks, and by other means. That recent public opinion surveys?report ?that 61% of Republicans and 29% of the overall population believe the false claim that the 2020 presidential election was fraudulent demonstrates the power of MAGA disinformation campaigning. Election denial is just one anti-democratic aspect of such campaigns.

Traditional media, print and broadcast, rights groups of various communities, civic tech and voting rights groups are working to expose and counter disinformation. This remains a big, vital and longer-term task if threats to US elections and democracy are to be effectively addressed. The US is not unique in this respect, though the task is no less formidable than in other countries.

The Conclusion Is to Intensify Democratic Determination???

Global as well US experience makes clear that there is no magic wand for combatting threats to genuine elections and broader democracy. No singular candidate or campaign or organization or technology can produce democratic miracles.?

Those who embrace democratic principles must build their strength through determined work to fix the conditions that cause the disappointment and discontent of large numbers of people. To paraphrase Madeleine Albright, democracy must deliver improved lives and empower equal citizenship. Disinformation must be countered by reaching people with trustworthy, accurate information, and democracy promoters must listen better than they speak to come up with effective solutions for economic deficiencies, racial, gendered and other injustice, crime, and other concerns for people’s wellbeing.?

In the immediate moment concerted efforts to mobilize people to vote are essential. Building longer-term contacts, networks and communities for civic engagement and civil exchanges are key. A social fabric based on advancing human dignity, harmony with the planet, and full enfranchisement provides protection for credible elections and democratic life. Youth engagement and leadership is key in these respects as are developing ties with various allies, confirmed and potential. That requires building bridges with those who disagree on many issues but who realize that a united front is needed in the US to preserve and improve our democratic system.?

We must expect that there is a long and arduous road ahead. Respected sources are predicting negative scenarios where the MAGA movement gains power and transforms the US into an “illiberal” democracy?like Hungary ?or worse. Preventing that is possible, and resistance to democratic decline in any event is imperative here as elsewhere. This highlights that learning from democracy movements around the world is important.

Ronald Reagan ended his 1988 State of the Union address with the hope that another generation would pass on America’s “government of, by, for the people”. Those words came from Abraham Lincoln’s Gettysburg Address delivered during the Civil War. To pass on government based on those democratic tenents we must acknowledge that this country is built upon fault lines that exacerbate the fragileness of American democracy. To preserve and pass on we must effectively address those faults in the immediate period or risk the potential of democratic collapse. While I am not an alarmist, an alarm is sounding and demands a response.

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Patrick Merloe is a member of the Election Reformers Network’s Advisory Council and the Kofi Annan Foundation’s Election Integrity Initiative. He was a principal drafter of the 2005 Declaration of Principles for International Election Observation, which is endorsed by more than 50 intergovernmental and international organizations. He has authored several publications on elections and human rights, taught courses at three US law schools, and for 28 years led the global electoral programs of NDI, a major international nonprofit, nonpartisan organization.