As the republic with the oldest written constitution, the United States is the world’s beacon of democracy. These days the beacon has been dimming. Freedom House, a respected global democracy watchdog, has recently issued press releases sounding alarms about the integrity of primary elections in Wisconsin and Georgia.
The outlook for a free and fair national election in November is cloudy, not least because the president himself has predicted mass-scale voter fraud and foreign interference, and has even suggested in a Fox News interview last weekend that he might not accept the result of the election, as a result. His son-in-law has also questioned whether the election would be held on schedule due to the pandemic or another crisis.
It is not hard to imagine another round of large-scale social unrest such as the weeks-long protests over George Floyd’s killing by Minneapolis police. Given the tense situation in the country, it would take only a spark, whether spontaneous or deliberate, to ignite a social conflagration in key cities before the November 3 election.
At the height of the mostly peaceful ongoing protests for racial justice, Republican senator Tom Cotton encouraged the president to invoke his statutory powers under the Insurrection Act that allows for the use of military force in the case of domestic unrest. Fortunately, the president stepped back from the abyss during the protests on Lafayette Square in front of the White House.
However, any hope that Trump would not escalate has been dashed. On July 1, the president issued an ominous executive order on “protecting American monuments, memorials, and statues, and combating recent criminal violence.” The Department of Homeland Security has sent unidentified federal agents into Portland, Oregon to detain protesters. Trump has also threatened to send such uninvited federal police forces into Chicago, New York, Philadelphia, Detroit and Baltimore.
If this crisis continues into election, with the president imposing some form of martial law, the chilling effect on the poll and orderly counting of ballots would be enormous.
Indeed, Trump’s impeachment defense counsel Alan Dershowitz has recently argued that there is no constitutional bar to a president declaring martial law.
A number of legal and political commentators have sounded an alarm that over the years Congress has entrusted to the president a large and poorly bounded set of “emergency powers,” numbering over 100, according to the Brennan Center.
Moreover, it is asserted by some – including Trump – that the president possesses additional secret powers and ‘total authority’ by virtue of his inherent executive authority in Article 2 of the Constitution.
In the same vein, in his detailed job audition memo, Attorney General William Barr asserted that “the illimitable nature of the president’s law enforcement discretion stems not just from the constitution’s plenary grant of those powers to the president but also from the unitary character of the executive branch itself.” Barr sees the presidency as essentially monarchical, arguing that the American founders were more troubled by an “overweening parliament” than by King George’s tyranny.
Our country has worried about the question of imperial presidency and secret emergency powers before. In the early 1970s, in the shadow of the Vietnam War and Watergate, Congress flexed its oversight muscle to force a stock-taking of the president’s claims of special powers through a series of historic hearings.
According to the late Senator Frank Church, who co-chaired the Special Committee on National Emergencies, those powers “were like a loaded gun lying around the house ready to be fired by any trigger-happy president who might come along.” It appears that such a president has come along.
John Adams famously included the concept of a “government of laws and not of men” in the 1780 Massachusetts constitution. Laws, however,must be upheld by men and women who hold office. Our elected and appointed officials must act responsibly and in good faith for our system of governance, including our elections, to work.
This is why the president’s oath of office includes the promise “I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my ability preserve, protect and defend the Constitution of the United States.”
Today we have a president whose good faith in office is manifestly in doubt.
The alarm is serious, the law is muddled, and there is little confidence that one can rely on this president to take a restrained view of his powers as have presidents in the past. Nor can one rely on the current Attorney General to curb those powers, including any use of the U.S. military to carry out the president’s orders. Indeed, if the Attorney General were to say, after a presidential emergency declaration, that a president’s order is lawful, what uniformed officer or enlisted man or woman could refuse it as unlawful?
If the chief executive is unreliable as now, there are three main lines of defense in the constitutional structure against threats to a free and fair election in November: Congress, the states, and the courts.
First, Congress has unique oversight duties and authority to act urgently in the public interest to check the notion of unlimited executive power. On the theory that sunshine is the best disinfectant, Speaker of the House Nancy Pelosi should immediately call for systematic hearings on emergency powers before they can be abused to obstruct the election.
A second line of defense resides with state officials because our elections are conducted at the state and county levels. A number of governors and mayors heroically showed the way during the recent unrest when they refused to be bullied by the president. It is imperative for state officials, including legislators, to take concrete steps to protect the equal right of all eligible voters to a free and fair election.
The national associations of governors, attorneys general and secretaries of state should coordinate on best practices to ensure the integrity of the voting process. The array of preparatory measures includes absentee voting, mail-in voting (known as postal voting in the UK), crowd management and physical safety at polling stations, as well as the security of ballots and digital voting machines, and the training of staff. Equally important will be the prompt certification of canvassed votes and appointment of electors.
Third, in the context of a declared emergency, the Supreme Court can reach down and take immediate jurisdiction of a legal challenge to the president’s action and stay its implementation, pending a valid showing of cause. The stay of the president’s order may be difficult or impossible to enforce, but at least the military may gain some protection against an order to take illegitimate action in the homeland to deprive our citizens of civil liberties affecting the right to vote based on a supposed emergency situation.
The legal process may be a slender reed to hang onto in the event the president’s actions take place in mere days before, or in the immediate aftermath of, a close or contested election. And this will be especially so, if it is the president himself, acting in bad faith, who creates the circumstances that threaten the election process or outcomes.
But the principled core of the balanced constitutional architecture must be preserved against extreme assertions either by an overbearing government or individual citizens, as summarized in the famous phrase from Justice Arthur Goldberg that the Constitution “is not a suicide pact”. This would include Barr’s notion of “illimitable executive discretion” or Dershowitz’ lame acceptance of arbitrary martial law, which contradict checks and balances and limited government. Any use of presidential or executive emergency power – however sourced in common law or statute or in the Constitution itself – must yield to the fundamental rights of our people.
Our Constitution, established by “We the people,” enshrines a core principle: the right of the people to choose and affirm by periodic free and fair election those who hold power on their behalf. This is what Lincoln so memorably described as a “government of the people, by the people, and for the people.” On this principle was built the very foundation of our republic. It is the most important of our civil liberties that our government is not chosen by crown or religion, but by the people.
Now it is up to us – we the people and our representatives at all levels and our courts – to make sure that November 3 does not end up the subject of democracy watchdog headlines about a failed election. The stakes could not be higher.