3 Nov 2022 A majority of Americans consider their democracy «in danger», «under threat» or «in danger of collapse», but they don’t agree why that is. Republicans demonize Democrats, Democrats demonize Republicans. One remedy (this side of the armed insurrection) is the old-fashioned one: you sue. The number of election-related lawsuits is going through the roof – the democratic processes are at risk of paralysis.
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It was only a day or two into early voting on the midterms, before «a situation» came up. In Arizona, the organization «Clean Elections USA» posted armed guards clad in military attire at public ballot boxes. They claim that Democrat «mules» were ferrying bagfuls of ballots to those boxes two years ago and vigilante observation was of the essence to avoid a repeat. Of course, lawsuits followed. Voters felt intimidated. At first, the judge let «Clean Elections» off the hook, considering their action «free speech» under the constitution, but he changed course after a plaintiff described under oath how he was filmed and showcased as a “mule” online. Now, filming voters at public ballot boxes is outlawed in Maricopa County as well as openly carrying a firearm (no word about concealed carrying).
The case is a linear continuation of the failed coup d’ état of 6 January 2021, when an armed horde stormed the US Capitol with stopping the transfer of power from defeated Donald Trump to the victorious Biden in mind. The central organ of Trump’s Republican Party at the time qualified the events as part of “legitimate political discourse”. To this day, two thirds of the Republican electorate think that Biden’s presidency is illegitimate- a belief which is heavily propagated by the Caudillo and his followers. Organizations like «Clean Elections» do «election observation» – a usual practice in America, as well as in the UN-sponsored elections in sundry African nations – in a most aggressive style and studiously look for mistakes which can be turned into lawsuits.
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Both sides, Democrats and Republicans, mobilize tens of thousands of “election observers” tasked to look over the shoulders of vote counters and other “election workers” in order to guarantee “integrity” of the process and “protection” of the voting citizen. On the right side, this is less about controlling technical proceedings than about proving guilt of predetermined transgressions. The more radical elements of Trumpism organize in order to put a large question mark behind the midterms on all fronts. From the primaries earlier this year came reports of “activists” provoking cumbersome recounts or searches after alleged mistakes. The New York Times wrote last month that an “extensive network of organizers” was preparing to look for possibly litigable actions by election workers and observers likewise. Former Trump consigliere Steve Bannon is considered – or portrays himself – as the mastermind. He certainly supports the effort very vocally. “We are 100 times more prepared now,” Bannon is quoted, referring to the tedious efforts of Trump to hold on to power two years ago. “We’re going to adjudicate every battle. That’s the difference.”
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There is a tradition in America of litigating narrow election results, and it is not limited to one side of the aisle. One precedent is the presidential election of 2000 whose result depended on the decision of the state of Florida. The difference was a few hundred votes, there was lawsuit and countersuit until after 36 days the Supreme Court stopped an ongoing recount of a limited class of ballots in a limited area. Defeated Democrat Albert Gore could have pursued further legal options (and according to later research might have won) but he chose not to in the interest of the country as a whole. “I say to President-elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country”, Gore said in his concession speech. But a handful of Democrat members of congress did not follow him and refused the certification of the result (the same thing the Republicans did in 2021), making George W. Bush president. Even more Democratic members of Congress did so after Bush’s reelection 2004. The number of lawsuits challenging election results jumped up.
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So much for the similarities. New in today’s situation is that the Trump the Loser does – different from Gore – not give in and continues to fight the result of the lost election on all fronts. New is also that his party wholeheartedly backs this course of action (way more GOP candidates than GOP voters believe that the 2020 election was fraudulent). And new of course, was the resort to armed insurrection on 6 January 2021. Before election day 2022 some Republican candidates are signaling that they might not accept a narrow defeat, and this is not all. Before the state courts are dozens of lawsuits challenging enacted election rules. Jurists of the University of Wisconsin/Madison a few days ago registered a “significant uptick” of such cases “ challenging every step of the election process” to the minutest details, such as whether an orthographical error on a ballot disqualifies a vote or whether a worker is permitted to point a voter’s attention to such mistakes. Authors Miriam Seifter und Adam Sopko note an increase in conflicts on «election mechanics” (“the who, what, where and how of voting”) – i.e. the machine room of democracy itself is in doubt. They see the risk of losing public trust: ”Litigation over every detail of the election process lays the groundwork for false narratives or subsequent challenges to the validity of an election.”
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Even more. Right-wing organizers like Steve Bannon advocate a “march through the institutions” out of the prayerbook of 70es-leftwingers. They promote a “precinct strategy” attacking on the lowest level of the state. Loyal Trumpists are encouraged to make themselves available for local office and by doing so to get a grip both on the Republican party apparatus and the institutions of the state – “village by village, precinct by precinct”, as Bannon said in his podcast. The declared goal is to occupy the positions tasked with managing elections. To say it in sports-speak: It is not about challenging a ref’s decision. It is about choosing the ref himself.
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A good deal of the problems rest within the electoral system itself. Compared to – just an example – Switzerland it is complicated and fraud-prone. The practical act of voting, machines, computers, paper trails etc. aside, there are fundamental difficulties. In Switzerland for instance it is fairly clear who can vote and who can’t: a citizen reports (mandatory by law) with Einwohnerkontrolle (“residents control office”) of the commune where he/she lives, automatically receives the Stimmausweis (voting card) and the Stimmaterial (ballots), and then votes, mostly by mail. The US knows no Einwohnerkontrolle. If you want to vote you need to “register (providing information on party affiliation and “race” – unheard of in Europe), and he/she needs to provide identification when actually voting. The rules differ from state to state. Pennsylvania for example accepts picture IDs (options include passport, drivers license, student ID, corporate ID) or a document with name and address (options given are firearms permit, electrical bill, bank statement, salary slip, a government check). As far as the online information goes, there is no mandate to hard-prove US citizenship. A voter only has to give a signed statement on the registration form – of course accompanied by a threat of punishment.
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Within this widespread state election laws are often modified. The right (i.e. the Republicans) argue that given the manifold access to the voting booth – from the electrical bill to the passport – it is only reasonable to clarify the rules. The left sees a curtailing of the voting rights of the poor or the minorities in a lot of these efforts. Indeed, the political aim is often too clear. In many places the number of public ballot boxes was cut (making distances longer) or the conditions for voting-by-mail stiffened. Georgia took the cake when it banned handing out water to voters waiting in line – a provision that is hard to find another reason for outside of harassment. The Brennan Center for Justice, registers an “ongoing legislative push to both increase the risk of partisan meddling and make it harder to vote”.
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The malaise is all over the place. A New York Times poll in mid-October showed over one quarter of all voters (28 percent) having no confidence in the results of the midterms of coming Tuesday. More than two thirds (71 percent) viewed «democracy under threat». This above all because not one side trusts the other one to be fair. The Republicans among those who were polled viewed the Democrats as a threat to the nation, and the Democrats the Republicans – and 59 percent saw the source of danger with the media.
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Numbers like these signals political fragility. Democracies live and die of the trust into the procedures and the inviolability of the arbitrative entities. They exist because citoyens put up with inevitable little imponderabilities. In the US though, such things have become fodder for cantankerous lawsuit-mongery. One should not fall into holier-than-thouism, but one comparison on this score seems to be in order. Just one comparison on this score. Ten years ago, the Swiss federal law on political rights was reviewed. At issue among other things was the automatic recount in cases of narrow results at the ballot. The left wanted to enact it, the government was against. Chancellor Corina Casanova said in parliament: «If you recount, you will get new results again because often times it is not about mistakes in counting but mistakes in evaluating a ballot. A “Nein” or “Non” might not have been clearly written, or it might not be evident that a “Ne” should be counted as a “Nein”. Such questions are matters of evaluation which can be viewed every time differently.”. The parliament defeated the proposal. Whoever demands a recount must provide a reason why a narrow result is an “illegitimate” one.