contentious elections

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By SEBASTIÃO VELASCO AND CRUZ*

Considerations about the results and consequences of the US elections

An unusual situation.

It may not be edifying, but the United States offers the world an inimitable spectacle at the end of the year.

I am not referring, of course, to contesting the results of the presidential election. This type of occurrence is well known to us and has been repeated in Latin America, Eastern Europe and other regions of the globe with remarkable frequency. But where else would we find, after the election in question, such a large mobilization of lawyers committed to challenging, in various corners of the country, the vote count? And where else would we see such a scandalous reaction to the losing candidate's refusal to chivalrously acknowledge his defeat?

True, there was a precedent in the United States not so long ago. In 2000, Democrat Al Gore beat Republican George W. Bush in the popular vote, but would have lost by a tiny margin (537 votes) in the state of Florida, decisive for the result of the election in the Electoral College. As now, the result in that state – then governed, incidentally, by the brother of the candidate believed to have won – was challenged in court, which gave rise to a long and laborious process of recounting votes. Which, however, did not come to an end that was interrupted by a tight decision of the Supreme Court.

But in 2000, this outcome, of doubtful legitimacy, was serenely accepted by Al Gore. From then on, the White House, under the command of the Democrat Bill Clinton, began the transition process, communicating confidential information about the various spheres of government action to the future president's team, in particular those related to National Security.

What we see now is quite different. Defeated at the polls, Trump multiplies in accusations of fraud – strictly speaking, such allegations long precede the realization of the election – and takes government decisions as if the horizon were four years, and not the remaining two months, according to the verdict of the polls. Meanwhile, the president-elect's team waits in bewilderment for the official charged with making the necessary arrangements - the holder of the General Service Administration – accept the result of the election and take the corresponding administrative measures – such as providing space for Joe Biden’s team to work and releasing financial resources legally allocated for this purpose.

With much delay, due to the exceptional conditions created by the pandemic, Joseph Biden's victory was proclaimed on Saturday, November 7, and since then it has been recognized by the governments of almost all countries in the world (Brazil is one of the few that shy away from this act of diplomacy). But so far, the United States has lived in reprieve, waiting for the gesture of recognition from Donald Trump that nobody knows if it will ever come.

This brief account suggests some questions. How to understand Trump's refusal to admit such a clear defeat (to have a comparative idea of ​​it, in 2000, Bush got 271 votes in the Electoral College, just one more than the minimum necessary to win the Presidency, while Biden has 306 votes today )? What is the meaning of his desperate attempt to reverse the result of the November 3 election and how to explain the support that, despite everything, he has received in this endeavor? Finally, how does the impasse thus created tend to affect the position of the United States in the world?

Before approaching them head-on, however, it is convenient to provide the reader with some data.

The presidential election and others: general results and political significance

For nearly a week, everyone's eyes were riveted on the ongoing polling in the United States. Not without reason. Contrary to what had happened on previous occasions, the work of counting votes went on overnight and into the next day without any clear result. Something strange seemed to be going on. News outlets differed marginally in their totals, and for days the numbers assigned to the two contenders remained unchanged. It was only on Saturday night that they all proclaimed the Democratic victory.

Throughout that tense period, which certainly mobilized the full-time work of countless journalists everywhere, the focus of attention was on the race for the Presidency of the United States. Here and there information about elections for the Senate, or for the Chamber of Deputies. But, in general, it came out of context. What mesmerized both – media professionals and the general public – was the drama of competition for the most powerful office in the world.

However, the Donald Trump vs. Joe Biden duel was just one part of the great political game that was going on at that time. Indeed, in addition to the Chamber, whose 435 seats are renewed every two years, on November 3, 35 seats were up for grabs in the Senate; the post of governor in 11 states, and 5.876 posts in the state Legislatures, distributed by 86 of the 99 Chambers existing in the Country – with the exception of Nebraska, the Legislative Power in the American states is bicameral. For easily understandable reasons, the meaning of the victory of one or another party in the struggle for the Presidency varies according to the outcome of these other clashes.

In the 2020 elections, they were very briefly as follows.

In the House, the Democrats lost nine of the 232 seats they held, maintaining their majority position with the 222 seats won; Republicans won ten, nine of which from the Democratic Party, forming a bench of 210 deputies.

In the Senate, of the 33 full terms in dispute, 21 were Republicans and 12 were Democrats (two seats are still at stake, to be filled in special elections for short terms of two years). The inequality in the distribution of posts open to competition contributed to fueling the optimism of the Democratic opposition, which hoped to gain the majority in the Upper House necessary for the future Biden government to be able to approve its projects without major mishaps. Such expectations, however, were frustrated: after the counting of votes, the Republican Party had lost only one seat, preserving 50 members in its bench. The Democrats, in turn, now have 46 senators, plus two independents who vote with the bench.

Senate control remains up in the air, pending the Jan. 5 election of the two unfilled Nov. 3 seats in the state of Georgia.

The results at the state level did not contradict this trend of relative stability. Of the 11 gubernatorial positions up for grabs, seven were held by Republicans and four by Democrats; nine governors tried to be re-elected, and all managed to renew their mandates. The only change occurred in the state of Montana, where the Republican candidate beat the Democratic Lieutenant Governor.

We observed a similar situation with regard to state legislatures. After the counting of votes for the renewal of the Legislative in 44 states, the republicans maintained control of 59 Chambers, and the Democrats, in 39. In only four of them there was a change of control between the parties – the lowest number of transfers since 1944 This justifies the bitter balance made by the left columnist Joan Walsh when examining the picture of the electoral results: “…nowhere was the news worse than at the state legislative level, where despite unprecedented investment by Democratic organizations and outside groups… the party lost ground".

With the probable majority of Republicans in the Senate confirmed, these data show a high degree of political inertia – which becomes even more surprising when one takes into account that the electoral dispute in the United States was fought in a year of pandemic and economic crisis.

The record made here is important, not only to enrich the reader's stock of information, but to conduct the analysis. Indeed, without it we run the risk of attributing the anomalous situation experienced by the United States today to the idiosyncratic action of an individual. There is no doubt that Trump is a histrionic demagogue whose behavior betrays serious personality imbalances. But to explain the impasse created by his attitude based on his personal characteristics is to explain nothing. The decisive fact is that Trump's abode – with all his psychopathy – is not a sanatorium, but the White House. This simple observation forces us to change the focus.

legal maze

In a seminal text, Joseph Schumpeter shrewdly observed that competition for power is a universal feature of political systems. The characteristic of democracy is the form in which it takes place: the choice of leaders through “free competition for free votes”[1].

Democracy is a political method, one in which decision-making power comes from competition for the popular vote. With its apparent simplicity, Schumpeter's definition was a huge success among political science practitioners. No accident. In one stroke, it excluded the abstruse entities of Political Philosophy – the common good, the general will – and prepared the ground for the empirical investigation of democratic institutions.

But Schumpeter himself seemed suspicious of the deceptive simplicity of the formula, which he insinuated when pointing out the socio-political conditions it implied: freedom of expression, movement and assembly, among others, that is, the table of basic freedoms of liberalism.

Not only that. For Schumpeter, some conditions indirectly related to the electoral process would be indispensable to the success of democracy: the presence of a well-prepared professional bureaucracy; relatively restricted range of issues submitted to public decision; loyalty of relevant actors to the country; quality of political leadership; leaders with a reasonable degree of self-control and mutual respect.

In the work of his followers, the list of conditions required by democracy was successively expanded. By revisiting them, Guillermo O'Donnell demonstrated that, examined in depth, they presupposed a logically prior condition – the institution of individuals as subjects of rights –, which placed the discussion of the theme of democracy on the level of Law and State, not the regime. In this movement, O'Donnell opened Pandora's box and reintroduced the great themes of Political Theory into the debate.[2].

It would not fit to reconstitute this passage in detail, but referring to it is necessary, because it highlights a crucial aspect of the issue analyzed in this article: the importance, not always recognized in the literature on democracy, of the “internal conditions” for the regular and legitimate functioning of the voting mechanism. This observation brings us back to the topic of this year's presidential election in the United States.

In effect, for the competition for votes to take place in a smooth and clean manner, it is necessary that various procedures be observed, in accordance with clear, precise, previously established rules. Now, this condition is made difficult by one of the most salient characteristics of the American electoral system: the baroque character of its structure.

Its best-known element is the Electoral College, where each state is represented by a number of voters equivalent to its representation in the federal Legislature (two votes for each of them's vacancies in the Senate, and a variable number according to the size of their bench in the Chamber of Deputies). Following the tradition of the district system in force in the country since its origin, the choice of these voters follows the majority rule (the winner takes all of them, regardless of how the popular vote is distributed).

The distortions resulting from this system are notable: given the great spatial stability of party alignments, presidential campaigns are waged in those few states where the outcome is uncertain – the swing states. It is in these states that the parties invest most of their resources, and it is on the outcome of the dispute in them, sometimes by a very small margin (537 votes in Florida, in 2000), that the election of the president of the United States depends.

Equally or more serious is the problem of inequality of representation. Given the existence of a minimum threshold of voters per unit of the federation, the most populous states are severely disadvantaged: each Californian voter represents more than 710 people, while the number of individuals represented by the Wyoming voter does not reach 200.

The combined result of the two rules – majority vote and the relative weight of each state – is the possibility of a mismatch between the popular vote and the distribution of forces in the College, which happened in two of the six presidential elections held in the present century.

The Electoral College suffers many criticisms and, at different times, has been the object of legislative projects with a view to its alteration, or pure and simple suppression. The argument in his defense is the irreplaceable role he would play in maintaining the balance of the federation.

For lies in the very federalist commitment the reason for the enormous complexity of the American electoral system, and the many points of vulnerability it exhibits.

Strictly speaking, the very idea of ​​a single electoral system in the United States must be rejected. Indeed, Article II of the US Constitution gives state legislatures the power to organize their voter lists. Initially, these were appointed by the legislative bodies of each state. Gradually, laws were approved in all states providing for the popular election for this purpose – South Carolina, in 1832, was the last to adopt the system.

But, observing the federal law that created in 1845 the Election day (“first Tuesday following the first Monday in November”) and the general provisions set out in the Election Count Act, 1887, each state enjoys broad autonomy to organize the election at its discretion.

They set the Electoral College list on their own (Maine and Nebraska assign one voter to each of their two constituencies, and two to the winning party in the state as a whole); the voting system (Maine, to use this example, this year adopted the graded choice system, or ranked-choice voting system); the rules for registering voters (of enormous importance in an optional voting system, where greater or lesser participation in the election is a decisive variable in its outcome); the regulation of the different types of voting (in person and by mail); the form of the note; counting procedures and the certification of votes. And state laws assign competence to decide operational matters to counties.

By federal law, the steps that follow the popular election must obey a pre-established schedule referred to days of weeks, not fixed calendar dates. In the present case, this schedule is based on the following dates: 1) December 8: Deadline for completing the vote counting process and certifying the results; signature of the voter list by the governor, who forwards it to the Federal Registration Office (Office of the Federal RegisterNational Archives e Records Administration); 2) December 14: meeting of voters, in their respective states, to deposit their votes in a sealed envelope; 3) January 6, 2021: Joint session of Congress for the opening of votes and announcement of the winner.

Legislation concerning deadlines, however, is ambiguous: the Electoral Count Act of 1887 gives states a period of 41 days to nominate their list of voters, but there is another law providing for this to be chosen in the same election. Election Day.

Another little-discussed but instructive aspect of American electoral law concerns the vote of the Electors. How to ensure that, when registering the name of the presidential candidate of their choice, they remain faithful to the result of the popular vote? Several states passed specific laws on the subject, but even so, in 2016, seven voters broke their commitment to vote for the candidate on the list they were part of (five against Hillary Clinton, two against Trump).

Finally, there are legal devices to deal with cases of controversy over the result of the popular vote – but they vary from one state to another – and with the eventual occurrence of discrepancy in the composition of the Electoral College: ultimately, election of the president by the Chamber , but by vote of the bench, not of the Deputies, which favors the republicans.

Many states have passed laws explicitly stating that each state's list of voters cannot overturn the results of the polls. But in its ruling on Gore v. Bush, the Supreme Court breached this legal framework by providing that state legislatures "may, if they so choose, appoint Electors themselves."

Taking into account, furthermore, the information that there is no such thing as a formally neutral and independent electoral authority in the United States, such as our Electoral Justice - on the contrary, at all levels the solution of disputes is the responsibility of politicians, in conjunction with highly partisan judicial bodies – we are led to accept the author's judgment, according to which the main obstacles that prevent state legislatures from ignoring the popular vote are not legal, but political.

contentious elections

In general terms, this complicated legal framework was set up in 1887, as a response to the impasse created around the result of the 1876 election, when supporters of both candidates – Democrat Samuel Tilden and Republican Rutherford Hayes – clashed in Congress, each side brandishing its own list of Electors, amid widespread allegations of fraud and irregularities.

Experts are unanimous in criticizing this law, in the words of many of impenetrable obscurity. But it came as a patch in a gaping and chaotic normative system, which was formed anarchically, as a sedimentation of answers given, in different historical moments, to practical problems encountered in the application of the constitutional text.

Chaotic and irrational as it may be, this system worked satisfactorily and can boast an enviable longevity. Indeed, for nearly 140 years, presidential elections have been contested in the US and, in all of them, the loser bowed to the result of the polls, gallantly fulfilling his role in the ritual – like Hillary Clinton, who, the day after the election, congratulated her opponent and wished him success in running the country, despite being attacked by him with astonishing aggressiveness and having beaten him in the popular vote.

Not like that now.

True, there was the 2000 precedent. But the two situations are not comparable. So the Democratic candidate had won the popular vote and was certain of having been victorious in the only state he needed to confirm the results of the polls in the Electoral College. And yet he accepted the Supreme Court ruling against him, taken by a majority of one vote, in a party-aligned court.

Today's situation is quite different.

Although he lost the election by a significant margin (more than six million popular votes, and 74 votes in the Electoral College), Trump is sponsoring an unprecedented challenge due to its breadth and the fragility of the allegations on which it relies. Meanwhile, he pressures republican legislators in the target states to use the majority they hold in the respective chambers to reverse the results of the polls, forming closed lists with faithful names.

It would be a paroxysmal expression of psychological distress if the maneuver were the sole work of Trump. It is not. Despite the Republican voices that have been increasingly heard in favor of accepting the facts, the truth is that Trump continues to have the active support, or the passive assent of the majority of elected Republican politicians and party leaders. And opinion polls indicate that – false as they are – his allegations of widespread fraud in the Nov. 3 election resonate with his electorate.

But that's not all. In assessing the direction of Trump's move, one must also consider what his allies are doing in their respective spheres. Here, the willingness of the powerful Mitch McConnell, leader of the Senate majority, to confirm, with the unanimous support of his peers, the nomination for the Supreme Court of the ultraconservative Amy Coney Barret, a few days before the presidential election, which everything indicated would end with Biden winning. And the fearlessness with which the same McConnell, after the vote count is over, continues to validate federal judges handpicked by Trump for his ideological profile. The tacit, or explicit, support of the republican machine for Trump is not fortuitous: in spite of specific differences, they are fighting the same fight.

Which leads us to face the disturbing reality head on. Trump obtained a surprising electoral result – in absolute and relative terms –, managing to advance in areas traditionally inhospitable to Republicans – in particular the Latino electorate. And he didn't accomplish these feats despite, but for being and presenting himself exactly as who he is.

I have dealt elsewhere with the Trump phenomenon[3]. I won't repeat myself: I'll just say that he expressed the non-conformity of large sections of the American population, previously worked by intense propaganda raised on a conception of politics as a modality of war. As one scholar on the subject convincingly argues, the myth of electoral fraud – systematically managed to disqualify the vote of subordinate sectors of society – has been incorporated into the repertoire of this propaganda for decades.[4].

From this perspective, Trump's reluctance takes on a more general political meaning, and the 2020 election comes to be seen as a case of a contentious election.

The notion was coined by pioneering book publishers, who defined it thus: “disputes involving major challenges, with varying degrees of severity, to the legitimacy of actors, procedures or electoral results"[5]. Norris and colleagues formulate hypotheses about the nature and conditioning factors of the phenomenon, without giving, in my view, due emphasis to the deliberate action of collective actors. But it would not be necessary to insist on this point. What matters is expressing my strong disagreement with an aspect of utmost relevance for the analysis I am making here. According to the authors, contentious elections are characteristic of poorly institutionalized political systems, a situation found in peripheral countries. The central countries (the authors do not use these categories) would be defended from the phenomenon by strong barriers. In your words,

"Hyperbole aside... these problems reflect a non-lethal form of the disease. Long-established democracies can be seen as akin to healthy patients, where institutions have built up cultural reserves of acceptance in successive elections that make them largely immune to reaction legitimacy crisis"[6]

The error consists, in my opinion, in taking institutions as objective data, “things”, which externally determine the behavior of political and social actors, and not as expressions of crystallized social commitments, which maintain a dialectical relationship with agents and their practices. In this way, the authors are forbidden to think about the processes of deinstitutionalization (or deobjectification) of social relations, and cannot even imagine the possibility that the countries in question will experience serious situations of hegemonic crisis.

Because that is what the effort of the president of the United States to delegitimize the electoral process, the backbone of the political system that his country has always projected as a model for everyone, is all about.

United States: election, hegemony crisis, international implications

How much water has gone under the bridge since Bush Sr. put the expression “new world order” in vogue! That was in 1991, when the United States led a huge coalition in the Gulf War. A short time later, the Soviet Union was in pieces and, with it, the Cold War ended.

In the international order that followed, democracy, in its diluted version, and the “free market economy” were combined, as axial pieces of the neoliberal globalization project that infused it with life.

Since then, cumulative changes have undermined the material pillars on which that order rested, namely, the economic superiority of the United States and its allies, on the one hand, and its indisputable military supremacy, on the other. The most notable manifestation of this process in terms of international relations is the rise of Russia and the rise of China.

But the neoliberal order was corroded from within as well, by the social dislocations implied in it, with the responses that social groups negatively affected by them produced.

Disregarding this background, the Trump phenomenon becomes incomprehensible. Without him, we would not understand the inflection made by his government in the foreign conduct of the United States: clashes with historic allies; denouncement of multilateral agreements and organizations; contempt of human rights and democracy as normative principles; undisguised defense of selfish economic interests and manifest willingness to employ coercive means in their promotion; geopolitical competition and technological-trade war with China.

Expression of a deeply divided society, Trump rejected the role of intellectual-moral leadership that the United States, since World War II, has always attributed to itself.

Today, days after the electoral defeat he suffered, the question is inescapable: will we witness a strong change of course with his successor? More specifically, will we see with Biden the United States back in the condition of conductor of the orchestra in the execution of the liberal-internationalist score?

Analysis, even when theoretically well tied, does not authorize prophecies. The elements that combine to produce a historic result are countless, and many of them are unpredictable. All we can say, in conclusion, is that the still unfinished 2020 election makes us look at this possibility with great skepticism.

*Sebastião Velasco and Cruz He is a professor at the Department of Political Science at Unicamp and at the San Tiago Dantas Graduate Program in International Relations, UNESP/UNICAMP/PUC-SP.

Originally published on the website of National Institute of Science and Technology for Studies about the United States (INCT-Ineu).

Notes


[1] Schumpeter, Joseph A., Capitalism, Socialism and Democracy. London, George Allen & Unwin, 1976, p. 271.

[2] Cf. O'Donnell, Guillermo, Democracy, agency and state. Theory with comparative intent. São Paulo, Peace and Land, 2011.

[3] Cf. Velasco e Cruz, Sebastião, “A house divided: Donald Trump and the transformation of American politics”, in _______ and Neusa Bokikian (eds.) Trump: First Half. Parties, policies, elections and perspectives. São Paulo, Editora UNESP, 2019, pp. 11-43.

[4] Minnite, Lorraine C., The Myth of Voter Fraud. Ithaca & London, Cornell University Press, 2010.

[5] Norris, Pippa, Richard W Frank and Ferran Martínez I Coma (eds.), Contentious Elections. From Ballots to Barricades. New York, Routledge, 2015, p. two.

[6] ID Ibid, p. 12.

 

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