The year of elections

This is the year of elections, with 50 (World Economic Forum), 64 (Time), or 80 (Guardian) countries and the EU going to the polls, accounting for almost half the world’s total population.

The list includes the US and India, the world’s most powerful and populous democracies, respectively. The US presidential election is the most internationally consequential of all while, by sheer weight of numbers, India’s is the most awe-inspiring.

In India’s 2019 election, Narendra Modi was returned to power with an increased majority. There was no serious questioning of the outcome or of Modi’s popular mandate. Indeed, of all India’s federal and state elections since independence in 1947, not one has been challenged on overall outcome. That’s some claim.

By contrast, America has a history of allegations of stolen elections, from John F. Kennedy’s 1960 to George W. Bush’s 2000 victories, through voter suppression, ballot stuffing, and even the dead emerging from their graves to vote.

Donald Trump won in 2016 and was sworn in as president. Yet, lots of Americans, for example Representative Rashida Tlaib, positively exulted in their public displays of disrespect towards Trump, heedless of how they were demeaning the office and damaging future presidents’ authority to govern.

The process of casting, counting, and certifying votes needs to be simple, observable, and verifiable, otherwise faith in the system will collapse. The US system is anything but. It is overly complex, variable from one state to the next, and more open to abuse at many points than in most democracies. There are multiple pathways through which, and multiple points at which, the machinery can be corrupted. But proving electoral malfeasance to an appropriately rigorous standard in a court of law is extremely challenging. Statistically improbable results and anomalies in critical precincts will rarely cut the mustard as a legally acceptable standard of proof of malfeasance.

Around 160 million Americans voted in 2020, over 40 percent by mail. This offered a ‘perfect storm’ of mass mail-in voting with inherently less rigorous checks, an uneven and imperfect election machinery that differs from one state to another, a winner-take-all system where victory in the state vote count no matter how slim the margin yields all its Electoral College votes, and narrow margins of victory in enough states to give one candidate the decisive edge in the Electoral College.

Trump lost in 2020 by a mere 44,000 votes across three states. The system makes it difficult to detect and defeat strategic voting of harvested ballots in individually targeted polling centres. Trump launched multiple lawsuits alleging fraudulent practices in several critical battleground states that he claimed to have won, but was unable to substantiate.

India goes to the polls again in April-May. The total number of voters is around 960 million, an increase of 100 million from five years ago. They will vote in staggered phases in 1.3 million polling booths under the combined supervision of 15 million election and security personnel. The Election Commission of India is vested with enormous powers to organise and conduct national and state elections, recognise political parties, establish procedures for the nomination of candidates, register all eligible voters, count the votes, and declare the results. The overall outcome is typically known on the same day as the counting starts.

Modi is expected to triumph once more. By contrast, only the foolhardy would predict even the final candidates in the US on Election Day, let alone the outcome, as the country seems trapped in a slow-motion train wreck involving what appears to be a morally flawed and a cognitively deficient standard bearer of the two major parties.

One key difference between the two countries is how the Supreme Court of India (SCI) has been prepared to uphold while that of the US (SCOTUS) has declined to rule on ballot integrity.

On January 30, mayoral elections were held in the northern Indian city of Chandigarh. Anil Masih, the returning officer, declared Manoj Sonkar from the Bharatiya Janata Party (BJP), which forms the federal government, elected, but only after discarding eight ballots for an opposition party’s candidate Kuldeep Kumar. This gave the mayoralty to Sonkar by a 16-12 vote. When Kumar’s plea to the High Court to grant interim relief pending fresh polls was rejected, he appealed to the SCI. It ruled on February 20 that by defacing eight ballots, Masih had ‘murdered’ democracy, declared Kumar elected, and ordered criminal prosecution of Masih.

The SCI reversed a lower court ruling, upheld ballot integrity, righted electoral fraud, and put the legitimate victor in office, all within a month of the election. The Times of India welcomed the speedy resolution in an editorial comment entitled ‘Well done, Milords,’ noting that ‘In electoral malpractice cases, justice delayed is emphatically justice denied.’

In 2021, SCOTUS declined to hear challenges from Pennsylvania, Georgia, Michigan, and Wisconsin to the 2020 results. This may have been legally correct but the abdication of the court’s responsibility to answer important constitutional questions was a political blunder. Unprovable and implausible claims of voter fraud do not invalidate the need for reforms to harden the US electoral system against future disaster. Even false allegations fester and breed distrust if they are not tested and disproven. Post-election litigation that overturns a declared result will create chaos and provoke unrest. Being too timid to confront systemic flaws to ballot integrity erodes voter confidence and continues the momentum for serial chaos with successive presidential elections.

Election integrity needs to be ensured and voter confidence assured by settling rules and standards well in advance. This is why the court’s decision was ‘inexplicable,’ in the words of the dissenting note from Justice Clarence Thomas. The court had passed on the opportunity to provide authoritative clarity before the next election. An issue likely to be repeated was allowed to escape review. This can only deepen ‘the erosion of voter confidence.’

The SCI would have likely set up a ‘special investigation team’ (SIT) to examine the flaws in the procedures and the anomalies, and recommend corrective measures to be put in place by the Election Commission before the next election. SCOTUS has watched from the sidelines as more and more Americans lose faith in their electoral system.

In a 2022 Rasmussen poll, 84 percent of Americans expressed concern about election integrity in the imminent congressional elections. By a 62-36 majority, they held eliminating ‘cheating in elections’ to be more important than ‘making it easier for everyone to vote.’

The US desperately needs laws and procedures that enhance the ease of voting and also protect the integrity of the vote against fraud. Positing them as an either-or binary choice is false. The more that rules and procedures are standardised across states, including voter IDs, the more credible and easier it will be to implement the process.

Instead, too many seem to believe in a constitutional right to cheat in elections. The major parties have refused to come together to correct the increasingly obvious flaws of election rules and practices. SCOTUS has refused to see the big picture with regard to them. Consequently we can confidently predict that if the choice in November is Biden or Trump, whoever of the two is declared the winner, approximately half the country will refuse to accept him as legitimate.

Meanwhile other imperfections of India’s democracy notwithstanding, a re-elected Modi will be widely accepted as the country’s legitimate leader for the next five years.

That is a stunning note on which to conclude this brief preview of the two elections.

Image credit: Stefan Moertl