Voting and the ‘rule by law’

The PEI report for 2018 concluded:

The issue of voter suppression has been a major issue for debate where some new laws, focusing on voter identification and polling facilities, can be seen as suppressing the right of legitimate citizen voters to participate. Republican commentators, on the other hand, respond that election laws are needed to eliminate the risks of voter fraud. Several reforms to state electoral laws were litigated in the run up to the 2018 campaign. The score on ‘election laws’ was lowest in Wisconsin and Georgia. The legal framework was seen by experts as the second-worst aspect of election conduct over all in the US, after gerrymandered district boundaries (p. 10).

I use the term ‘rule by law’ to refer to laws enacted and enforced that lack democratic legitimacy and that also violate ‘rule of law norms.’ In the case of the restrictive electoral laws favored by some in the Republican Party, but not just members of that party, the goal is to remove actual and potential electoral challenges to Republican candidates. The goal, when achieved in practice, undermines the legitimacy provided by any election touched by such laws. Electoral legitimacy is diminished or eliminated because, as employed, these rules exclude some Americans from electoral participation because of the ascriptive categories directly and indirectly applied to them, categories such as race, ethnicity, socio-economic class, etc. and because apportionment schemes violate the one person, one vote rule and thus the equal protection clause of the 14th Amendment. Thus, not only do these laws diminish the integrity of such elections, they also necessarily generate a legitimacy deficit for the governments thus elected. It follows that the laws cease to be artefacts produced by a self-governing people. They are components of illegitimate domination.

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