US political mess: Five lessons from Emerging Markets on disputed elections
Weekend Reading / United States of America

US political mess: Five lessons from Emerging Markets on disputed elections

  • Not only is an uncontested election now implausible, but it seems unlikely to be resolved through the courts alone
  • We may see whether the US Constitution can cope with a direct onslaught, something many EMs are familiar with
  • This EM experience of contested elections provides a number of lessons for the US

Vice President Mike Pence is the centrist, acceptable face of Trumpism. Although Biden has a sizable lead over Trump in national polling, if the septuagenarian candidates themselves were out of the picture, Pence and Harris were, according to the polls, neck-in-neck going into the Vice-Presidential debate. Given Pence’s greater respectability, it was remarkable that, when asked directly by the debate moderator, he refused to commit to a peaceful transfer of power if he and Trump lose the election, and used the question as an opportunity to cast aspersions on Biden and Harris, suggesting that the Democrats were trying to steal the election.

This would have been shocking whether it had been said in the US or indeed in many emerging markets. Sitting in America, it was shocking that any elected official, especially a sitting Vice-President, who has the legal responsibility to oversee the counting of electoral college votes, would suggest that his party would not relinquish power. Had this been said in many emerging markets, it would have been shocking that the Vice President was being so open and honest that the administration prioritised remaining in power over respecting the US Constitution and the political norms that support it.

When I was living in Central Europe after the fall of communism, there was an oft-told apocryphal story that a group of US constitutional lawyers offered to visit a Central European capital to help write a new post-Communist constitution. The country’s constitutional drafting committee replied that, while they were grateful for the offer, they’d prefer a group of Guatemalan constitutional lawyers. The US had made its original constitution work, whereas the Guatemalans, who were on their eighth constitution, would really know what does and does not work in a constitution. The Americans were offended, but came anyway, while the Guatemalans were busy redrafting their constitution: in 1993 President Jorge Serrano Elias suspended the Constitution, dissolved Congress and the Supreme Court, and was then overthrown, prompting a major reform of the Constitution.

The US Constitution’s durability is not a reflection of its superiority as a document over those of emerging markets, such as Guatemala. Indeed, there is a grain of truth in the apocryphal story: the US’s Constitution has lasted for longer than all eight of Guatemala’s Constitutions combined, not because the Constitution itself is perfect, but rather because the political discourse and institutions surrounding it have allowed it to adapt and assured respect for it. Nevertheless, the bloodiest war in US history, the Civil War, was fundamentally about constitutional issues.

It is now a well-accepted commonplace that President Trump has undermined the softer institutions and practices surrounding the Constitution. Some may see this as a necessary expedient to achieve admirable goals, others as fundamentally undermining American democracy for personal aggrandisement. Either way, we may be about to see whether the US Constitution can really cope with a direct political onslaught—and whether those Central European constitutionalists of the early 1990s were right to ask for Guatemalan help.

This is all too familiar to emerging markets

US history gives few guides as to what might happen if President Trump uses the power of his office to queer the pitch in his favour, or if he and his supporters choose not to accept the results of the election. The 1876 presidential election was contested and was resolved politically rather than in the courts, as 2000 was, but that’s still not much to go on. Emerging markets, however, have had plenty of disputed elections, and may tell us something about what might happen in the US.

Drawing on war gaming of the presidential election aftermath by the Transition Integrity Project (TIP), I would argue that there are four plausible electoral outcomes:[1]

  1. A clear Biden win by a large enough margin that he is declared winner on election night;

  2. A narrow Trump win, in which he wins the electoral college and not the popular vote, and election night is inconclusive, with Democrats hoping for an eventual Biden victory as postal ballots are counted in the days and weeks following the election;

  3. A narrow Biden win, in which he wins both the popular vote and the electoral college, but the outcome is unclear until many days or weeks after the election once postal ballots have been counted – in this scenario, Trump would likely appear ahead the morning after the election; and

  4. An inconclusive election, in which the combination of legal and procedural uncertainty about postal voting and narrow margins mean that either candidate could win, depending on how individual legal disputes are resolved in individual states.

Trump’s seeming unwillingness to accept a Biden victory and the ambiguity of all the other results indicate that an uncontested election is implausible. Indeed, not only is an uncontested election implausible, but it seems unlikely that this will be resolved through the courts, as the disputed 2000 election was, without there also being violence in the streets. Against this backdrop, it's not surprising that recent polling shows that nearly half of Americans think that the election will not be free and fair and more than half of Americans think that there will not be general agreement about who is the legitimate President and that the election will lead to an increase in violence.

This is uncharted territory for the US, but not for many emerging markets – I think we can draw four lessons from their experiences, and one from Ancient Rome…

Five lessons

1. Do not underestimate the value of incumbency

One of the main conclusions of the TIP report is that “an incumbent running for re-election can use the powers of the presidency [including the ability to deploy the military and investigate and discredit his opponents] to great advantage, particularly if traditional norms are viewed as unimportant and the incumbent is willing to take the risk that a court will eventually rule his actions to be unlawful.”

From Azerbaijan in Zambia, this has been proven true time and time again. Even inside the European Union, right-wing populists like Viktor Orbán’s Fidesz in Hungary, which rewrote the Constitution, and Jarosław Kaczyński’s PiS (Law and Justice) in Poland, which subordinated the constitutional court, have proven the value of incumbency to retain and consolidate political power.

In the US, Trump could use his power of incumbency to deploy the national guard and the army, but also to prevent the delivery of postal ballots (which the Postmaster General has promised not to do, although he has warned the voters much “be mindful” of the time it takes to deliver the mail) or investigated alleged improprieties.

In the TIP simulations, the team playing Trump regularly did all of these things, and when it looked likely that they might be forced from office after all, the Trump team pre-emptively pardoned themselves against any offence they might have committed.

2. A loyal movement makes a big difference, both now and in the future

There are many ways that President Trump could mobilise his supporters to keep himself in office, both to intimidate opponents and to stoke violence, creating a pretence for deploying federal agents or the military. Lone supporters could also swing the election in Trump’s favour: in one of the TIP simulations, a Trump loyalist destroys postal ballots that are presumed to be votes for Biden. While the TIP example featured ballot destruction, a lone supporter can also enable ballot stuffing, as is alleged in the case of Box 13: a box of ballots that mysteriously appeared in Alice, Texas long after polling day and propelled Lyndon Johnson to victory in the 1948 election to the US Senate.

This sort of election violence and tampering happens across the emerging world, but Thailand provides a particularly instructive example of the value of having a movement. When Thaksin Shinawatra was deposed in a military coup in 2006 that banned both he and his party from politics, his political opponents probably thought that they had seen the last of him. But he continued to lead his movement from overseas, eventually propelling his sister, Yingluck Shinawatra to power in 2011. Had Thaksin ended up in jail rather than exile, he might have had the same good fortune as Almazbek Atambayev, former President of Kyrgyzstan, who was recently freed from jail by his supporters.  In several of the TIP simulations, the Trump family launch a television station (MAGA TV) to continue to rally their movement, promote themselves politically after the election and position Donald Jr for a run in 2024.

3. Any excuse is a good excuse to change the rules

Several emerging markets used Covid-19 as an excuse to postpone elections or limit political gatherings. Closer to home, London postponed its mayoral election, with the convenient side effect of undermining, to the benefit of the established political parties, a successful independent campaign for mayor.

Although Republicans repudiated President Trump’s suggestions to do the same in the US, he will certainly be looking for, and perhaps trying to manufacture, opportunities to change the rules, both before and after the election itself.

4. Do not assume that courts have power

I wrote earlier this year about Malawi’s remarkable election rerun. It wasn’t remarkable just because the election was contested in the courts. What was remarkable was that the five Supreme Court judges resisted all manner of threats and inducements to deliver a verdict in support of the president and that, having lost at the Supreme Court, the government went ahead with a reasonably fair election rerun that led to a new result. In Kenya’s 2017 election, judges resisted similar pressures and delivered a similar verdict, but with control of the apparatus of state, a flawed election rerun went ahead despite opposition candidate Raila Odinga pulling out, alleging that the flaws that had caused the Supreme Court to throw out the election had not been addressed. Many things differentiate the two cases, but continual street protests in Malawi surely added weight to the Supreme Court’s verdict.

In 2000, Al Gore conceded to George W. Bush after defeat at the Supreme Court despite the fact that he had won the popular vote, that a different post-election strategy might well have delivered victory and that flaws in the design of Florida’s ballots meant that it was almost certain that a majority of Floridians intended to vote for him, even if they didn’t succeed in marking their ballots as such. The Supreme Court didn’t need people on the streets to add weight to its verdict because the political class clearly respected the judiciary; there was never any question about whether the loser would accept defeat.

Twenty years later, a similar result seems highly unlikely. If the election is ultimately decided in the courts, what will need to happen politically, or on the ground, to ensure respect for the courts’ decisions? And, unlikely in the 2000s, in Kenya or in Malawi, a contested US election will likely involve the results in several states being contested in many cases across the country, making a landmark decision by the Supreme Court well in advance of inauguration day all the more difficult.

5. Norms may be undermined easily but are hard to regain

Robert Harris’s novelisation of Cicero’s life (and through it the end of the Roman Republic) tells brilliantly how norms that Pompey broke to facilitate his own aggrandisement were subsequently exploited by Julius Caesar to facilitate his much more pernicious rise to power. The Royal Shakespeare Company’s staging of the novels brought the relevance for the present day crashing home with the following simple stage direction: “Enter Pompey, Trump hair.”

While the Roman example is particularly evocative, this story happens in emerging markets, too. One might argue that Yeltsin paved the way for Trump, and the story of the 20th Century in much of Latin America is one of right-wing rulers, like Fujimori in Peru, easily dismantling constitutional constraints that proved very difficult to reimpose.

We don’t know whether there is a Caesar waiting in the wings, ready to exploit the cracks that Trump has made in the US’s constitutional protections, but Trump’s rejection of accepted Constitutional norms has led democrats to consider doing the same. For example, in the same Vice-Presidential debate where Pence refused to commit to a peaceful transition of power, Senator Harris refused to commit not to expand the Supreme Court to allow a Biden administration to appoint new judges to shift the court to the left. What would have been unthinkable in 2016 isn’t even front-page news in 2020. 

[1] I have not included the option of a big Trump victory (winning both the electoral college and the popular vote by a comfortable margin) both because current polling suggests that is impossible and because a broad victory does not appear to be Trump’s strategy.

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