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Contested Elections Force Us To Ask Unpleasant Questions About Democracy – Ryan McMaken (11/03/2020)

For months now, Democrats and other opponents of Donald Trump have been sounding ominous warnings that Trump may refuse to leave the White House even if he loses the election. 

This, however, has never been a remotely plausible scenario if Biden is the clear winner. In other words, if Biden wins a decisive or obvious victory, neither the secret service, nor the White House staff, or any government department will do anything to keep Trump in the White House.

Rather, the only way there could be a meaningful dispute over who is the winning president is if the outcome itself is contested and unclear. In that case, a sizable portion of the population would insist Trump stay put in the White House while many others insisted Biden was the real winner. Potentially, the result could be two full month of lawsuits, recounts, and accusations of fraud before a winner—which wouldn’t necessarily be Trump or Biden—would be chosen. Even then there’s no guarantee that the general public would consider this to be a fair or legitimate outcome. 

Indeed, the longer a disputed elections is up in the air, and the more a “correct” outcome appears unattainable, the more likely a contested election is to undermine the perceived legitimacy of both the electoral system and the US regime itself.

There are at least two reasons for this. First, a contested election is likely to damage the political myths to which the public clings. When elections are contested and their outcomes dubious, more voters may conclude elections do not translate into a government guided by “the will of the people” after all. Second, contested elections illustrate democratic contests have no theoretical or moral answer for the problem of a “tie vote.” Moreover, since the US regime has long tied its legitimacy so closely to the notion of “majority rule,” elections that produce no clear majority become problematic. No matter the outcome, more Americans are likely to begin questioning if national elections are rigged, unfair, or otherwise unreliable. 

The Damage Done to the Washington Establishment

Washington’s technocrats, pundits, and politicians prefer an easy and effortless election during which no one raises any questions about the process or its outcomes. This façade of serene consensus so valued by the Washington elite was maintained virtually untouched throughout most of the twentieth century. But then the 2000 election threw a sizable monkey wrench in the works. The naïve view that “every vote matters” and that elections are decided by honest and diligent counting of votes ceased to be plausible to those who were paying attention.

Even worse (from Washington’s perspective), the election wounded some key Washington institutions.

Last year, former Supreme Court Justice John Paul Stevens recalled that the contested election of 2000 had been disastrous for the reputation of the US Supreme Court. The court had long cultivated an image of being utterly detached from political contests. Once the Court became involved in the election, however, and ruled in favor of the Bush campaign in Bush v. Gore, it became far more difficult for the court to present itself as a non-political institution concerned only with public service. “I remain of the view that the Court has not fully recovered from the damage it inflicted on itself,” Stephens wrote.

It is indeed likely that the Court’s ruling has significantly ratcheted up the rancor over court appointments that has grown over the past twenty years, and has diminished the public’s view of the Court overall.

Contested Elections Undermine the Narrative that Elections Are About Discovering the Will of the Majority 

But the damage on the US regime inflicted by a contested election would extend beyond the harm done to the precious reputations of Washington technocrats like federal judges.

A contested election would do harm to the democratic myths buttressing Washington’s legitimacy with the general public.

For instance, close and contested elections are always reminders that elections do nothing to reveal or demonstrate the will of the people. It is true, of course, that no election does this. “The people” have no collective will, and no election serves to translate the voter’s will into policy. But a contested election makes this all the more abundantly clear, and difficult to deny.

After all, if approximately half of the voters are against the winner, it is absurd for the winning side to claim—as it inevitably does—to have “a mandate” or that the winning side can exercise its power with any sort of moral authority. In the United States in recent decades, winners of presidential elections rarely manage to gain votes from more than 25 percent of eligible voters. No president since Reagan in 1984 has won more than 53 percent of the votes of those who actually do vote.  Bill Clinton never won even 50 percent of the vote in either 1992 or 1996. 

The notion that these winning coalitions represent the will of the nation, of the voters, or of any other meaningful group of Americans has little basis in reality. Even among those who vote for the winner, the reasons for their vote are usually extremely diverse. 

Who Wins in a Tie?

Moreover, many elections—as was amply demonstrated by the 2000 presidential election—are, for all intents and purposes, tie votes.  Even worse for the will-of-the-people theory is the fact democratic theory has never provided an answer to the problem of what to do when there is a tie. The tie vote of 2000 was effectively decided by a court decision. The tie vote of 1876 was decided by a commission of party officials.

But in both cases, the outcomes were considered by many to be dubious, even if short-term prudence dictated that dissenters accept the ultimate outcome as a fait accompli.

If there is a contested election in the US in 2020 it will face the same problem. The outcomes will ultimately be based on the acts of kingmakers behind the scenes.

A contested election puts all of this into play and on display. When there is no clear electoral winner, the old platitudes about government “of the people” become less convincing. Government of which people? The half that wanted Candidate A, or the other half? The closer the vote, the more arbitrary the outcome is likely to appear.

It’s healthy for the voters to see how ad hoc and haphazard it all is. Indeed, for those who take a more realistic view of American elections, one might say there is a whole lot of upside to contested elections. Close and contested elections are usually the only time that it becomes nearly impossible to avoid asking difficult questions that the regime most certainly would rather no one ask.