When is mistrust the highest? When people feel that the rules of the game have been changed on them.
When is mistrust the highest? When people feel that the rules of the game have been changed on them.
O ne of the lessons that ought to be drawn from the riot at the Capitol is the grave danger of undermining the legitimacy of American elections with large segments of the public. That ought to give pause, in particular, to those on the political left who continually argue for unsettling the existing electoral and political system with the aim of producing outcomes they prefer.
What is legitimacy? As a matter of democratic political theory, legitimacy comes from the consent of the governed, such that governments are more or less legitimate depending upon how much they involve the people they govern in deciding who is to govern, and how. At a more fundamental, historical level, a legitimate government is one that is accepted by the people, irrespective of whether they have any say in it. A monarchy may not be legitimate in terms of the ideals of the Gettysburg Address, but if it’s been around for a while and if the people live with it as a part of the landscape without agitation, it has that basic level of legitimacy. It is possible for electoral republics and democracies to lose that, and that is often how they die.
The longstanding tenure of a system is often crucial to its legitimacy. Revolutions, once they’ve begun, can prove hard to stop. The democratic institutions that grew in the first flower of the French and Russian revolutions, or after the fall of the Chinese empire or the Kaiser in Germany, did not last. They did not have time to set down roots. Napoleon tore down many of the old crowns of Germany and Italy, and even when the Congress of Vienna restored a new settlement with some of the same thrones after 1815, they never recovered the same respect among their people. Post-colonial governments in Latin America in the 19th century and Africa in the 20th, or the new governments of Europe after the First World War, all illustrate this.
America has a unique advantage: Our systems for electing the federal government have changed little and gradually since 1789. The current Electoral College system has been in place, with only minor changes, since 1804, and with only a handful of exceptions, the electors have been chosen by statewide popular vote in every state since 1828. The House and Senate have undergone few changes — popular election of senators in 1913, the introduction of the secret ballot, a few rounds of revision to the Senate’s filibuster rules, the elimination of statewide House slates where they existed by the mid 19th century, a brief interruption of decennial redistricting in the 1920s, etc. The electorate has changed more significantly — eliminating property requirements, giving the vote to women, African-Americans, and 18-to-21-year olds — but to the average American, it is still easy to trace the continuity of all of our electoral systems back to 1789 without witnessing any particularly dramatic breaks.
The great advantage of that continuity is that it still gives the system’s defenders the ability to explain to the losers of any given election cycle that they lost fair and square under the rules of the game, the same basic rules that have been in place for a very long time and can be found in elections as far back as George Washington’s day. In 2020, it was an advantage for defenders of the outcome of the presidential election that recounts and lawsuits had to proceed state-by-state through existing legal channels, rather than a single, winner-take-all national contest. Every state with a major election contest had Republicans in power in the legislature and/or the governorship. They could rely on precedent to guide them, as did the vice president and Congress. That may not turn out well for some of those Republicans’ political careers, but the ability to appeal to the expectations set by the Electoral College’s history kept things from being much worse.
Over the past two decades, we have witnessed escalating popular mistrust of electoral outcomes, fed by sore-loser candidates and partisan pundits. The riot at the Capitol shows what it looks like when that mistrust bubbles over. Consider: When is mistrust the highest? When people feel that the rules of the game have been changed on them.
This happened on both sides with the Florida recount in 2000: Republicans complained that the Florida supreme court was rewriting Florida statutory law after Election Day, and Democrats were upset that the election was decided in the courts (never mind how they got there). Donald Trump’s toxic feeding of mistrust remains dangerous and inexcusable, but consider why he found such fertile ground for it: because voting looked so different in 2020, with a massive shift to mail-in balloting and multiple states and localities rewriting their voting procedures, often late in the game and often without involving their state legislatures. The more people feel that a process lacks the legitimacy of long pedigree, the less likely they are to accept its outcomes as binding over their own preferences.
This ought to be a cautionary tale for progressives bent on reworking the system to accomplish more victories. It is one thing to identify groups of citizens who are barred from voting, and ensure that they can vote if they take the same efforts as everybody else. It is entirely another to clear-cut the existing rules for registration and balloting, to drastically restructure who is responsible for running elections, or even to bulldoze the Electoral College and the Senate and other longstanding processes. “Trust the rules, we just rewrote them” is a far less persuasive argument. When the storm blows hottest, it is the trees with the deepest roots that hold their ground.