SONGEZO ZIBI: On the brink of political crisis: how will the US elections play out?
With the US poll almost done, what matters most is whether there will be an orderly transition or not
Today marks the most consequential US elections in almost five decades. By Saturday night, 92-million voters had cast their ballots. That number represents about 43% of all registered voters, and 67% of the total number of ballots cast in the 2016 elections.
While most of the globe’s attention is focused on who, between President Donald Trump and Joseph R Biden Jr, will be elected the next president, it is the events that will unfold between tomorrow and January 19 2021 that will occupy the minds of scholars of history for decades to come.
As much as it is obvious, suspension of disbelief causes many a pundit and analyst to be reluctant to state unequivocally that the world’s most famous and noisiest democracy is on the precipice of a full-blown political crisis. Had the set of events that have unfolded over the past 18 months (especially) occurred in a notably important emerging market economy such as SA or India, the word “crisis” would have long shown up on many a diplomatic briefing or strategic scenarios document.
It is unheard of in modern history for the US president to try to undermine the credibility of the electoral system, and for him to call for the arrest of his political opponents on trumped-up charges. Also unusual is the long list of retired generals and other senior armed forces or security officials who have declared him unfit for office, and a danger to the US way of life. In William Barr he has probably the most corrupt attorney-general in a long time, and Barr has proceeded to fire a slew of senior federal prosecutors for daring to investigate Trump, his political allies or his friends.
Yet, all of this is precisely what has been happening in the US in the lead-up to and during its national and presidential elections, and more.
Much is at stake, not least the future of the US system of self-government of which the democratic credentials should long have been in doubt. This is due to persistent efforts by the Republican Party to use state laws and electoral regulations to make it as difficult as possible for likely Democratic Party voters from poor neighbourhoods to actually vote. This is known as “voter suppression”. These voters are usually black or Hispanic, though the latter can be a complex proposition depending on the state or income stratum.
The recent history of judicially sponsored and institutionalised voter suppression took a turn for the worse in 2013 when the US Supreme Court gutted the Voting Rights Act, the signature legislation arising out of the civil rights struggle of the 1960s. In a 5-4 decision, with chief justice John Roberts having the decisive hand, the court ruled that states wishing to change their election laws and rules could do so without federal approval.
“Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Roberts wrote in the 2013 majority opinion.
In her dissenting opinion, the recently departed justice Ruth Bader Ginsburg said the focus of the law had correctly evolved from “first-generation barriers to ballot access to second-generation barriers” such as disingenuous electoral district demarcation and other forms of gerrymandering. To provide a local equivalent of what this means, I shall use the example of the Sandton district under which the township of Alexandra falls.
The US Supreme Court decision allowed a situation to be repeated in numerous states where provincial election officials would, say, allocate only three voting stations to Alexandra on the one hand, and three per affluent suburb in the rest of Sandton to discourage Alex voters with the inevitably long queues. In vast states such as Texas this means some voters have to drive for three hours to reach a voting station, and then queue for many hours before driving back.
Elections day is not a public holiday in the US, which makes it particularly difficult for voters from poor neighbourhoods who work more than one menial job to make ends meet, to find time to cast ballots. Because of the many creative ways in which they are discouraged from voting, many would-be voters choose not to.
Ahead of this election, Republican Party operatives have even targeted automated calls to black voters in swing states, giving them misleading information intended to discourage them from voting. For instance, these calls say that if they vote, law-enforcement officials will use their voter information to locate and prosecute them for minor transgressions such as unpaid traffic fines and municipal debts.
Trump has made it clear that he is not willing to accept an outcome in which Biden wins, and is likely to litigate every swing state and district contest to get the outcome he wants. In preparation for the litigation, his campaign has hired hundreds of lawyers in numerous states to prepare for the many cases that will inevitably inch through the courts between now and January.
What portends poorly for the US is the level of toxic political and social polarisation that has been elevated during the Trump era.Songezo Zibi
These will end up at the Supreme Court where the conservative wing now has a 6-3 majority after the recent, controversial appointment of Amy Coney Barret. The Supreme Court already faces a potentially serious credibility problem. The last presidential election to be decided by the courts was the contest between George W Bush and Al Gore in 2000. Gore won the popular vote but lost the electoral college by a narrow margin, with the final decision resting with the Supreme Court.
Three lawyers who represented the Bush side of that argument are now justices of the Supreme Court: Roberts, Brett Kavanaugh and Barrett. All three were appointed by Republican presidents, making it hardly a surprise that it was Roberts’s casting vote that gutted the Voting Rights Act in 2013. This time they will not be litigants in the expected legal fray, but judges.
What portends poorly for the US is the level of toxic political and social polarization, which has been elevated during the Trump era. Democracies thrive on the idea that a significant chunk of voters will switch sides if they do not like what the incumbent party and its president have achieved. Trump’s constant appeal to his base has so hardened attitudes that there is a much higher proportion of voters who will vote for their party regardless of what the president does, even when it is offensive or illegal.
It is from this stock of voters that some researchers have found the 20% who have, in response to a poll by the University of Maryland and Louisiana State University, said that “violence would be justifiable” if their candidate lost the election. That 20% hardly qualifies as “fringe”. It is a large proportion.
Biden has been leading in both the national polls and several swing states that Trump carried easily in 2016 when he ran against Hillary Clinton. As in 2000 when Bush won, Trump lost the popular vote by almost 3-million votes. The gap will be wider this year, which means the only path to victory is a series of favourable decisions in the courts, hopefully before “conservative judges” (a ridiculous concept elsewhere, but this is the US).
If Trump eventually triumphs through the courts, it is difficult to see how a country whose overwhelming majority would have rejected him, would be prepared to countenance openly partisan decisions by the Supreme Court that rely on the disenfranchisement of voters on some or other technicality that should have never been. Public demonstrations seem almost inevitable. While voters have tolerated Republican gerrymandering for seven years, the issue has become so central to political discourse in the US that it seems highly unlikely to disappear with the waning electoral noise.
Should mass protests take place, in the minds of his supporters — who count among them heavily armed militias and other white supremacist groups — it will be confirmation of what Trump has been labelling a “left-wing conspiracy to turn the US into a socialist state”. Armed and primed for a violent denouement, it is highly unlikely that Trump will use the same inflammatory language he used against Michigan governor Gretchen Whitmer to stoke conflict.
Incredibly, after incitement from Trump for Michigan to be “freed” from her, these armed militia groups invaded the state Capitol in an attempt to take her hostage. They were stopped by state troopers in the corridors of the building. Later the FBI uncovered a plot to kidnap and kill her, which Trump has specifically not condemned in his rallies.
On the other hand, Trump has repeatedly said that if Biden wins, as he now almost certainly looks likely to do, securing both the popular and electoral college votes, he would consider the outcome illegitimate. He has also indicated that he expects the Supreme Court to rule in his favour, specifically the newly appointed judge Barrett who is now in an invidious position.
Under a different set of circumstances the general population may have been prepared to countenance another unpopular Supreme Court decision as in 2000 but this looks unlikely for several reasons.
First, the contest is unlikely to be as close as it was in 2000, meaning the Supreme Court would need to disenfranchise multiples more than the few thousand disqualified in the Florida recount.
Second, the court nomination process, similar to the electoral donor landscape, is heavily influenced by an oligarchy of megarich donors who spare no effort in finding judges who will protect their interests under the cloak of social conservatism. The entire US political system has lived under this untenable imbalance for far too long, and patience with it has worn thin. Ironically, this fact was probably the biggest driver of Trump’s triumph in 2016.
Third, the electoral college system is on borrowed time. Through it, the popular will does not matter, no matter how large the margin of defeat for the candidate who loses the popular vote but wins the electoral college.
These factors create a cocktail that, without calm heads on both sides, will almost certainly lead to unrest and the possibility that the traditional January 20 inauguration may not be so assured on this occasion. Some prominent Republicans such as John Bolton do believe the party’s legislators will quickly move to isolate Trump if he refuses to leave office, forcing him to do so no matter how angry he is. This is a significant statement of faith given how sycophantic the same people have been over the last four years.
Capital market commentators have largely remained quiet on how they are likely to weigh and price the risk of unprecedented political upheaval. Even if Biden chooses to be the “bigger” person on this occasion, it is hard to see how his party would agree with him after so bitter a presidential term during which the famous “Washington consensus” was thrown asunder, never to be seen again. It is on the basis of that broad consensus that the markets have built their assumptions about the US.
Having for the past four years ridden the wave of a president whose policy choices favoured the most predatory of the rich, the market may be due for a painful correction deep in a dark, Covid-19-riddled winter of discontent. That we don’t know how any of this may evolve with any of the certainty we had before is a risk in itself.
One thing is certain, the US will never be the same after this election even if the expected crisis does not arise. The fault lines and cracks in its system are so deep and wide that it must be asked if it can handle the next phase of tensions.
• Songezo Zibi is an author and former editor of Business Day.
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