Is the US now a fragile democracy?

Watching the US 2020 elections, some election observers have started to apply the lens to it they have previously reserved for emerging and fragile democracies. As a former model for the rest of the world, that the US electoral process should even be open to such scrutiny is a mark of how much has changed for the worse.

Most disturbing has been the question of democratic transition, with the incumbent not committing to leaving office if he lost. While the electoral process was underway, the incumbent claimed victory before the result was known, has since said that his victory was in the process of being stolen and is now attempting to launch legal action to stop the continuing vote counting, despite that being well within conventional US practice.

A peaceful democratic transition is a hallmark of democratic consolidation, or the entrenching of democratic practice in fragile democracies. If the US presidential election results go against the incumbent and he is unable to legally challenge the election result, it is likely that national institutions will ensure there is a democratic transition.

However, that this should even be a question in the world’s first modern democracy raises serious questions over its democratic health. That a significant minority of citizens may also not accept the electoral results indicates that the weakening of US democratic embeddedness runs deeper than just incumbent.

Critically for emerging and fragile democracies is the question of campaign violence, intimidation and voter safety. The US electoral system has continued to provide for a safe electoral environment on election day. However, the lead-up to the 2020 elections was marked by the increasing presence of armed partisan groups. This would ordinarily be described as creating a sense of voter insecurity and hence an atmosphere of intimidation.    

Similarly, while many voters have openly expressed their political views, the polarisation of those views has led to some being expressed in a way that challenge democratic norms. Others may have likewise been intimidated into not expressing their political views.

A key criterion for assessing democratic health is the public acknowledgement of, respect for, and compliance with, democratic norms. The US presidential election in particular has been marred by claims of criminality of one candidate by the incumbent, with an attempt for compel a foreign leader to instigate a criminal investigation against a challenger and further calls for criminal investigations into the challenger during the electoral period.

This might not result in legal action against a candidate, but it attempts to deligitimise that candidate. As such, does not demonstrate respect for, or compliance with, democratic norms. Each of these measures mark an attempt to further delegitimise the electoral process and creates a democratic deficit.

As highlighted by the incumbent, the ability to raise complaints and have them addressed through a fair, consistent and transparent mechanism is a hallmark of democratic honesty. The complaints process, however, can be addressed at either the state or federal level, which may introduce inconsistencies in adjudication. This problem of judicial inconsistency is exacerbated in national elections by each state, and sometimes county, being responsible for their own electoral process and, in many cases, having differing legal criteria.

Attempts by the incumbent and his supporters to stop further vote counting in states where he is ahead, but to let it run where he is behind is, however, a gross abuse of the complaints process. Trying to use legal avenues to exclude votes is fundamentally anti-democratic.  

Whether all citizens are allowed to vote and whether their vote has equal weighting with other votes is a critical test of democratic reach. In the US, there are a number of restrictions on who can vote, or on pathways to gaining access to voting.

These include changing or reduced locations of polling stations, inconsistent criteria of identification for voter registration, state by state changes to and purges of (and re-registration for) voter databases and inconsistent notarisation of mail-in ballots. There are also state by state variations in prison voting bans, including post-prison or unpaid fines periods.

That is to say, many citizens have unequal access to the electoral process or – about five million – are excluded from it. More positively, the largest proportion of US voters in 120 years turned out to vote, indicating the importance of the electoral system.

The US president is elected through an electoral college, which is a form of indirect democratic representation in which states are allocated a number of electoral college votes based on their approximate population. This is an imprecise electoral process, especially when the ratio of electoral college votes and the population changes do not match. In close elections, as in 2016, a president can be elected with a majority of electoral college votes but a minority of the popular vote.

The US electoral process is notable to votes not being openly bought or sold, nor is there any evidence of ballot box tampering, despite unsubstantiated claims by the incumbent and some of his supporters. However, these unsupported allegations of vote rigging in relation to mail-in ballots has helped undermined the legitimacy of the electoral process.

There is little doubt that the US has democratic deficits, but that it may still be able to produce an electoral result broadly in line with the will of a majority of the people. But, as noted, if the US is not to join the ranks of fragile democracies, the critical question is whether that result will be respected.  

• Professor Damien Kingsbury was an accredited election observer to Indonesia’s national elections in 1999 and 2004 and has led Australian election observers missions to Timor-Leste in 1999, 2007, 2012, 2017 and 2018, and to Myanmar in 2015.