This article, written in September, appears under the title "When Elections Fail" in the Fall 2016 issue of The American Prospect magazine. Subscribe here.
One of the great advantages of liberal democracy is the potential for self-correction. If an election works out badly, the next one offers an opportunity to make a better choice, and in the meantime constitutional guarantees keep the winners from abusing their power. But sometimes elections fail so disastrously as to threaten irremediable damage to a society’s foundations. The United States faces that risk this year.
Systemically damaging election failure can happen in several ways. Elections may be rigged or manipulated and, even when they haven’t been, the suspicion that they have may impair a new government’s legitimacy and create a constitutional crisis. Elections can fail when they put strongmen in power who have no respect for constitutional norms and threaten democratic institutions. They can fail when the outcome is so dispiriting that people give up on democracy and believe that only an authoritarian government can solve their problems.
Although democracy is often equated with elections, the two are not the same. After squelching their opponents, authoritarians often use elections to give themselves a stamp of popular legitimacy. The liberal elements of liberal democracy—independent media, freedom of association, an impartial system of justice and administration—are not just requisites for free elections; they are also indispensable to democracy as a means of limiting the damage when elections fail. The checks and balances of our Constitution that seem frustrating at times because they serve as brakes on popular sentiment also reduce the risk that a bad decision by the voters at one moment will do irreversible, systemic harm.
An economic collapse, defeat in war, or some other crisis may be the most likely situations to drive a nation’s voters to make a desperate choice. But while this is an anxious time in America, it is not a moment of national desperation, though it could become one. The country faces the risk of systemically damaging election failure—threats to electoral integrity and government legitimacy, constitutional norms, and trust in the democratic process—because of the Republican Party’s nomination of Donald Trump.
Trump has raised the specter that if he doesn’t win, he may not accept the results because the political system is “rigged” and the election may be stolen through voter fraud. The voter-fraud issue is phony—there is no evidence of significant voter impersonation. But many of Trump’s supporters echo the views they hear from their candidate and party. A Quinnipiac poll in mid-September asked, “If your candidate loses in November, would you think that the outcome was legitimate or would you think that the election was rigged?” Nearly half the Trump supporters (46 percent) think the election would be rigged, while only 11 percent of Clinton’s supporters think so.
Of course, the actual purpose of spreading the myth of voter fraud is to tilt the election by justifying special ID requirements and other laws and policies that reduce the African American, Latino, and youth vote. Trump has also called for his supporters to patrol voting places on Election Day, an old tactic aimed at intimidating minority voters.
Another kind of threat to electoral integrity is entirely new in the American experience—intervention by a foreign power aimed at supporting one candidate or sowing general distrust of the election’s outcome. Some people are incredulous that Russian hackers who work in concert with Vladimir Putin’s government could have been responsible for the breach of the Democratic National Committee’s email system and efforts to get access to state voter registration files in Arizona and Illinois. But there is a well-established pattern of Russian actions of this kind in Europe, and Trump has given Putin an interest in an American election that no Russian leader ever previously had because no major-party American presidential candidate has previously been pro-Russian.
The Russian interest arises not just from the admiration that Trump has repeatedly expressed for Putin, but also because Trump has cast doubt on whether as president he would defend NATO allies in eastern Europe against Russian intervention. As a businessman, Trump has also depended, as one of his sons has said, on Russian capital, and as a candidate he has had a remarkable penchant for advisers with Russian connections. That Trump openly invited Russian hacking into Clinton’s email—before saying, implausibly, that he was just being “sarcastic”—was an astonishing example of disdain for democratic norms. And he may get his wish, or something like it. As Dana Milbank of The Washington Post has speculated, the trove of hacked documents may provide the material, possibly doctored, for an “October Surprise” damaging to Clinton or to public confidence in the integrity of the election.
In praising Putin as a strong leader, Trump has shown utter indifference to the Russian leader’s use of power, professing to know nothing about the murder of Putin’s opponents and investigative journalists in Russia or to see anything wrong in Russia’s seizure of Crimea. Trump’s own actions during the campaign—inciting violence against protesters at his rallies; attacking the judge in the Trump University case; saying that as president he would use the IRS to get back at the owner of The Washington Post—also give no basis for believing he would restrain himself once he sat in the Oval Office.
If elections fail in most countries, it is only their problem. If an election fails in the United States in the way it may fail in 2016, it is a problem for the whole world. Trump views the alliances built since World War II as a protection racket in which countries either pay up or get no defense from the United States—treaty commitments and the fate of other democracies be damned. In Iraq, he says, we should have just taken the oil—a reversion to old-fashioned imperialism that would validate hostility to the United States. He calls for the use of torture against suspected terrorists and killing their families—forget the Geneva Conventions and other legal niceties.
After 1945, the United States helped to build a system of alliances and international law that has kept the peace in Europe and contributed to advances in democracy and human rights around the world. America has not always upheld those values in its actions abroad. But a Trump victory would endanger what has been achieved and do systemic damage to democracy not just in America but internationally.
BUT WOULDN'T other institutions—the courts, Congress, the federal bureaucracy—prevent Trump from carrying out his ideas? In a government so prone to gridlock, some say, Trump would find himself foiled at every turn. That confidence, however, is unwarranted.
In international relations, to begin with, the power of the presidency is effectively unlimited. As commander in chief, the president can take the country to war. Presidents have abrogated and suspended treaties in the past; Trump could do so with little fear that the Supreme Court would direct him to comply. The nuclear arms pact with Iran is only an executive agreement; Trump could cancel it. It’s a comforting thought that the military and the CIA would defy Trump’s orders to use torture, but I wouldn’t count on it.
By signaling American intentions, presidential statements about foreign affairs in speeches and news conferences often constitute actions in themselves. Trump’s mere suggestion that he would not defend countries in eastern Europe would encourage Putin to test NATO’s resolve. Last April, in an interview on Fox, Trump told Chris Wallace in regard to the Japanese arming themselves with nuclear weapons, “Maybe they would in fact be better off if they defend themselves from North Korea.” He later reversed himself, but a president has only to raise doubt about America’s commitments to trigger nuclear proliferation.
While presidential power is not as great in other areas, it is still formidable. Under existing laws, Trump would have sufficient discretionary authority to bar immigration from predominantly Muslim countries (see Sasha Abramsky, “Don’t Assume Trump’s Bias Is Mere Bluster,” The American Prospect, Summer 2016). Trump would also have the legal authority to carry out mass deportations of undocumented immigrants. And he could appoint an attorney general (Chris Christie?) and other officials who would be able to undertake investigations of political opponents and critical media and who might cast aside the informal norms that restrain the government’s staggering prosecutorial power and its capacity to disable the opposition.
Perhaps the greatest dangers to democracy and civil liberties would arise from the repercussions of Trump’s policies. Many of the actions that Trump has called for have the potential to ignite crises. Canceling the Iran pact could precipitate another crisis in that region. Anti-Muslim policies could stimulate more terrorism. Mass deportations and the cancellation of trade agreements, followed by retaliation by other countries, could create economic turmoil.
The turmoil itself would be an opportunity for Trump, as it often is for right-wing populists. After coming to power through appeals to intense nationalism and hostility to minorities and foreigners, they often use foreign conflicts or trouble at home as a way of maintaining support and justifying crackdowns on their domestic opponents.
There is also a more immediate potential for a constitutional crisis if this year’s election produces a disputed outcome. Imagine a repeat of the battle over the Florida vote in the 2000 election, except that with only eight justices, the Supreme Court might now be deadlocked. That could leave the election outcome to a lower court with even less legitimacy to determine the fate of the nation. Al Gore averted a constitutional crisis in 2000 by simply giving way, but it is hard to imagine Trump doing the same, and Clinton might not either.
If Trump becomes president, would Congress keep him in check, particularly under the pressure of crises that Trump himself might produce? If Trump wins, Republicans are likely to hold both houses, and the odds are low that they will conduct the equivalent of the Watergate hearings to check abuses of presidential power. This year, we have already seen how little fight Republican leaders put up against Trump once he was the presumptive nominee, despite the contempt he had shown for many of them and for what we had long been told were the party’s true principles. His ability to intimidate others into silence and compliance would be far greater as president than it has been as a candidate.
Since Trump’s authoritarianism is hardly a secret, his candidacy itself reveals something deeply disturbing about the Republican Party in particular and America in general. No candidate like Trump was ever supposed to have a chance at the presidency. But for some time now, Republicans have been playing with fire, stoking hostility to government and doubts about its legitimacy. Trump is the culmination of that pattern. After years of unrelenting contempt for public institutions, democracy in America may now be much more fragile than many of us previously understood.
When elections fail, everything depends on democracy’s other institutions—the courts, civil service, parties, independent media, civil society—but those institutions are not self-driving vehicles. While constitutional checks and balances create brakes on elected leaders, people have to apply the brakes. In the first instance, the brakemen are the judges and others with independent power in the government and major private institutions. Not only can they refuse to go along with illegitimate decisions; they can also embolden wider public resistance. In one of his great free-speech opinions, Justice Louis Brandeis wrote that the founders of the American Republic “believed liberty to be the secret of happiness and courage to be the secret of liberty.” When democracy is going well, it is easy to forget how vital courage is. When elections fail and all seems to fall apart, nothing is more important.
—September 20, 2016