Threat to the Most Fundamental of Rights

In a democracy, citizens should not fear losing their right to vote. However, the U.S. Supreme Court has just given free rein to policies that aim to restrict that right.

The 2020-2021 term of the U.S. Supreme Court ended on a stunning note, announcing the most significant decision of the year on the very last day. In Brnovich v. Democratic National Committee, the highest court in the land upheld the constitutionality of measures that frame the right to vote in very strict terms.

As one of the most well-known examples of these measures, the Republican-controlled Legislative Assembly of Arizona passed, and the governor signed, a law in 2016 prohibiting anyone from delivering the absentee ballot of a voter unless that person was an employee of an election agency or a family member. This ended a common practice in some communities called “ballot harvesting.” In an attempt to make life easier for fellow citizens, individuals gathered multiple voter ballots for delivery to election authorities. The state law also gave permission to reject an early-voting ballot delivered to the wrong polling station.

The fundamental question before the court was whether the state had the authority under the 1965 Voting Rights Act passed during the civil rights era to pass such measures. The court said yes in a 6-3 ruling. The six justices making up the majority were nominated by Republican presidents, the three who voted not were nominated by Democrats.

If this decision by the Supreme Court already weakens democracy, as some say, a more serious threat looms on the horizon.

The broader issue, of course, is one of degrees. How far can the right to vote be regulated, or even constrained? This poses a key question in any democracy, the right to vote being undoubtedly the most important of all rights. But given the current situation in the United States, it takes on a whole other dimension.

In the era of bogus accusations of massive election fraud, and when more than two-thirds of Republican voters in the country still believe that Joe Biden “stole” the 2020 presidential election, many Republican politicians have an obvious political motivation to adopt measures they present as means to target fraud. Democrats, for their part, often see in these efforts a thinly veiled attempt to crush the voices of voters most likely to support them.

The Supreme Court made a point of underscoring that it is not validating any measure meant to limit the right to vote. It is, in this sense, a decision with relatively limited reach. Nevertheless, it will certainly give headway to those in favor of stricter voting laws.

And yet, despite the media buzz surrounding this decision, it does not necessarily constitute the biggest short or the medium-term threat to American democracy. Ironically, one can find that threat at the polling stations.

Elections Threatening Elections

The next national elections take place in the United States next year. In the context of the 2022 midterms, many governments will fill jobs for election officials. As strange as that may seem in Canada, secretaries of state, who are in charge of elections, are elected in 35 out of the 50 American states.

That, in itself, does not pose a problem as long as those politicians, as well as the teams they oversee, respect democratic principles. However, what would have happened in 2020 if, for example, the Georgia secretary of state, a Republican who stood up to Donald Trump when asked to “find” the 11,000 ballots he needed to defeat Biden in the state, had instead been a lackey of the former president?

This is only a theoretical question, but a Trump loyalist who called for the cancellation of the 2020 election results has officially launched a campaign for the position ahead of the 2022 vote. What would happen — what will happen — following a contested election if the people in charge of counting the votes affirm their first loyalty to a particular candidate rather than to the Constitution?

In the past year, American democracy has confronted its most serious frontal assault, instigated by a president to boot, since at least the Civil War. It led to an unprecedented insurrection at the Capitol on Jan. 6, and to a persistent, overall toxic climate of deep distrust.

Nevertheless, the system has endured. It would be tempting to think that it was inevitable, and that would be wrong. The system has endured because it could count on the decentralization of electoral powers conferred to defenders of democracy. There is no guarantee that these defenders will be in place forever, or even next year.