The Legitimacy Crisis in American Elections
"This bill has never had nor does it have anything to do with fraud," said Iowa state Republican Representative Bobby Kaufmann in introducing legislation to alter several aspects of voting in the Hawkeye State. "I'm sure there were a couple instances here or there but no, it was not brought to my attention any sort of cases [of fraud.]" Signed by the governor, the law puts new restrictions on early, absentee and mail voting, shortens hours at polling places, authorizes a fine of up to $10,000 for “technical infractions” of election rules and mandates that an absentee ballot not received by 8 p.m. on election day not be counted, leaving some voters at the mercy of the Postal Service.
Since fraud was the predominant claim of President Trump in explaining his loss, we might be surprised that Kaufmann dismissed it as an issue. He thus agrees with the Trump Administration’s own elections infrastructure watchdogs, who said on November 12th that “[T]he November 3rd election was the most secure in American history.”
Still, 78 percent of Republicans in a January poll disagreed. To most of them, Biden stole the election. The perception of these nearly half of voters that the electoral system lacks legitimacy is real, even if it defies reality. We must not ignore that.
State legislatures and governorships controlled by Republicans are not. Many have pivoted from citing voter fraud for proposed changes to the rationale that voters just don’t trust the system. Of course, the former president’s lies and their widespread propagation have caused the very distrust legislators now insist they must address. Manufacturing a problem is certainly and cynically one way to justify dealing with it. Tragically for democracy, many proposed and enacted changes may lead the other half of voters to claim the system lacks legitimacy. Republicans are magnifying the very problem they claim to be solving.
Something useful could still result, though not without confronting distinctions among three words – law, justice and legitimacy.
“Justice is the end of government,” James Madison noted in 1788 in Federalist #51. Justice - not laws. Laws are created by electoral majorities. Yet as he wrote in Federalist #10, the danger of our form of representative government is “that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The question about changes to election law by Republicans or Democrats is not whether they have the power to enact them. When they win elections, they do. The question is whether what they enact is just.
Defining “justice” is difficult, yet the history of unjust laws here and around the globe helps. It suggests several tests to apply to proposed change in election law. Is the law fair, treating every potential voter the same? Is the law based on verifiable facts rather than untested assumptions or prejudice? Does the law abstain from providing political advantage to some at the expense of others? Are the penalties for violation appropriate? Do penalties inhibit moral and ethical behavior? Is the law impartial on its face but likely to be partial in its implementation? Will the law expand the franchise rather than discourage or prevent the right to vote? Does the law respect human dignity?
Even just laws, however, do not guarantee legitimacy. Legitimacy requires trust in the behavior of those who govern, who create and administer laws. Legitimacy must be earned and can only be conferred by the governed. The lack of it makes President Biden illegitimate in the eyes of many despite massive evidence that his election was both legal and just. Without legitimacy, leaders lack the support to govern.
No political party or candidate that acts in its own rather than the national interest in crafting election laws and electoral districts can claim the legitimacy to govern, regardless of the winning margin. The attack on the 2020 election results and some of the measures being adopted to deal with the loss by President Trump threaten the legitimacy of the electoral system itself. If that continues, neither Republicans nor Democrats will be able to govern effectively. Until we stop attempts to create legitimacy through partisan legislation by either side, laws falsely masquerading under the banner of “election integrity” will continue to divide this nation against itself.
In a February 2020 poll by Pew Research, 59 percent of Americans were “dissatisfied” with the way democracy is working in the United States. That was before COVID19 and last year’s presidential election. There is simply no way out of this without the exercise of moral courage by the nation’s political leaders and the pressure from everyday citizens and public interest groups in demanding and crafting a more just set of election laws and practices. As long as extreme elements in any political party persist in making laws to ensure they win, they will also ensure that justice, legitimacy and the nation lose.
Photo Credit: opinionfront.com
