The ongoing clustertruck that is the American electoral system should have us all revisiting some unfounded assumptions about the unique resilience and stability of American democracy. There is more than a whiff of American exceptionalism embedded in statements made in even some of the most thoughtful commentary on the American election. Benjamin Wittes, a very astute legal expert who has written detailed explainers on the post-election procedures surrounding certification, electoral college votes, and the like, has argued that,
Now, I’m not a legal expert by any means, but…. I have eyeballs and ears. The assertion that the peaceful transfer of power in the United States is “awesome in its automaticity” seems to fly in the face of everything that we’ve been seeing over the past week: what has been thrown open to question is the question of whether, say, a bipartisan county canvass board can simply refuse to certify an election, on the basis of no legal pretext whatsoever, but the mere suspicion of wrongdoing (ie., of too many Black residents); whether state legislatures can simply refuse to seat the duly selected Democratic electors for a state that, in a transparent and rigorous election process, quite clearly produced an electoral margin for President-Elect Joe Biden that exceeded Trump’s 2016 performance in the same state by a factor of 14; and whether all of the soundly decided court cases in the world make any difference if Republican-drive procedural machinations are going to run roughshod over the electoral process.
It seems to me, as a Canuck expat who has lived in your country for several decades — and who loves so many aspects of being here — that, far from being “awesome in its automaticity,” the American electoral college system, together with the partisan administration of elections at every level of its governance, offers up a considerable number of bottlenecks and pressure points to any authoritarian political party that has the chutzpah to take advantage of them. We need to get away from the ideological truisms about the unique stability of the American democracy. David Frum, another Canuck expat with whom I vehemently disagree on almost everything else, has had this to say about the whole thing:
Now, as a longstanding distanced observer of the whole thing, I see numerous points where the exercise of partisan oversight over election procedures not only threatens to produce unjust results, but has actively done so. Just to cite four painfully obvious ones:
1) Quite obviously, the process of gerrymandering, whereby whichever party is in power in the state legislature on a given agreed date is able to decide how to draw the electoral map of congressional districts, with considerable latitude;
2) The kinds of mechanisms for vote certification that we had occasion to see in Wayne County, MI a few days ago, where the ostensibly “neutral” mechanism of assigning two Democrats and two Republicans to each county and state canvass board resulted, in actuality, in a petulant deadlock on the basis of no meaningful evidence whatsoever;
3) The control imposed by partisan state Secretaries of State, which has so far operated smoothly this election cycle but which has worked out very badly in at least two very high-profile recent cases: first, the role of Florida’s Secretary of State in throwing the state election result to George W. Bush in 2000; and second, the role of George’s then-Secretary of State Brian Kemp in using the power of the office to impose voter suppression measures and to deny Stacey Abrams an election win;
4) Finally, there’s the Electoral College system itself, which was designed to serve as a buffer zone protecting the country’s elite from the “passions of the masses,” or in other words, the direct democratic representation afforded by the popular vote. This mechanism’s extremely troubling weaknesses are in full display right now, as Michigan’s cowardly state legislative leaders hunker down with the President to decide how best to test the integrity of this mechanism and to sever it from its representation of the state popular vote.
It is often said that the American system is meant to operate as “a nation of laws, and not of men,” and that the legal framework of the country would operate justly even if it were administered by devils. But i should be noted the numerous ways that many of these mechanisms rely upon the existence of norms of behavior: putting two Democrats and two Republicans on a state canvassing board assumes, for instance, that these are four people that operate in the same universe of facts, and would never be motivated to move beyond the extremely limited remit of their duty to voters — which is to certify the vote counts that are right on the page in front of them. Placing the operation of the state election in the state Secretary of State’s hands also seems like it proceeds from a breathtakingly naive set of assumptions about human nature and political reality; that they have operated with integrity in the present election is really only a measure of the number of affected states that presently have that office filled by a Democrat, or in one or two cases, filled by that exceedingly rare thing: a Republican with moral scruples.
That none of these mechanisms is somehow bracketed off from the operation of party politics is something that I continue to find astounding. I know some of it may be baked into the Constitution, and would be difficult to adjust. But surely there’s nothing in the federal constitution that determines that Michigan’s votes need to be certified by two Democratic Party hacks and two Republican Party hacks? (And yes, the Democrats have a few party hacks, too, though we hear mercifully less from them.)
This is why I wanted to briefly offer up the alternative of my own mother country’s election system, the Elections Canada organization. Now: first off, I know that they have not exactly ingratiated themselves to Democrats and progressives over the past couple of weeks. For reasons that elude me, they decided to weigh in on the question of electronic vote scanning, and how they have always insisted on hand-counting of votes; they obviously thought this was a helpful contribution to American deliberations over elections, but it was almost immediately taken up in extreme bad faith by Donald Trump, who seized upon it as a means of delegitimizing the many state election procedures where electronic vote scanning had operated without incident. When annoyed American Democrats and progressive advised him to “move to Canada, if you love it so much,” horrified Canadians like myself recoiled in horror at the suggestion.
So you may already find yourself looking askance at anything Elections Canada would have to say. Which is too bad, because I think their independent, nonpartisan process has a lot to offer to the American system; I believe it also has similar counterparts in many of the other affluent democracies. The Chief Electoral Officer, who heads up the agency, is nominated by Parliament, and for its 10-year non-recurring term reports directly to Parliament, bypassing any potential interference from political parties or government; the agency is not technically administered by the federal government. (The Chief Electoral Officer is also not allowed to vote, which is a gesture towards their obligation to neutrality.) This independent, non-partisan agency is in charge of administering not only elections but also things like drawing up the map of “ridings” (the Canadian equivalent of Congressional districts) — stuff like gerrymandering is, at least in theory, derailed by the operation of an independent, neutral agency that has no reason to engage in manipulation of the boundaries of districts, as Republicans have seen fit to do in states like North Carolina.
So I offer up all this as a way of thinking through how the American polity can begin to revisit its entire mechanism of electoral democracy: where in the process might something like this independent, neutral arbiter of fairness be plausibly inserted? Let’s start with state certification of the vote: if you had an agency with a head nominated by a supermajority of the state legislature (maybe… I’d have to think about that, given Pennsylvania and Michigan right now), and given a ten-year, non-recurring term, with their role carefully bound by explicit policies, might you not be able to get away from bogus shenanigans like we’re seeing in Michigan? What if that same nonpartisan office was assigned the task of drawing up district boundaries? Wouldn’t that, too, also limit the ability of a rabidly partisan Secretary of State to intervene in the administration of an election?
I don’t know quite how we get around the atrocity that is the distorted electoral representation afforded by the Electoral College, which is subject to the Constitution and pretty difficult to dislodge. We will save that for another day. But surely, there exist measures for preserving the integrity and independence of election administration that a good-faith state legislature — or even Congress, God help us — might be able to enact, given the most ideal circumstances and conditions.