Today the Unit published Monitor 89, providing an analysis of constitutional events over the last four months. This post by Alan Renwick and Meg Russell, which also serves as the issue’s lead article, highlights welcome action by the government on devolution, commitment to the rule of law and the removal of hereditary peers from the House of Lords, but calls for stronger action on wider Lords reform, progress on the promised Ethics and Integrity Commission, and action on the pre-election pledge to strengthen parliamentary scrutiny of legislation. It warns that the governments of the UK must strive to maintain healthy checks and balances, avoid polarisation, and foster open political discourse at a time when events in the US are showing the dangers of not doing so.

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On 6 January, the Governor General of Canada granted a request for a two-month prorogation of parliament. A legal challenge was soon launched to have it declared unlawful. Steven Chaplin argues that the prorogation is perfectly proper, that it is highly unlikely that a Canadian court will rule it to be unlawful, and that comparisons with the Boris Johnson prorogation request in 2019 and the subsequent ‘Miller 2’ case do not hold up. 

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Tomorrow’s midterm elections in the United States will see voters cast ballots to elect members of the House of Representatives and a third of the membership of the Senate. James Cleaver analyses the state of the campaign, explains the potential consequences should Republicans regain control of either chamber (or both), and draws our attention to some of the key individual contests.

The United States will hold its midterm elections tomorrow. At the federal level, all 435 seats in the House of Representatives and 35 out of 100 Senate seats are being contested. There are also a large number of significant state-level races taking place across the country.

Understandably, much attention has been paid to what these elections might mean for President Joe Biden’s legislative agenda or for attempts to reinstate abortion rights across the country following the Supreme Court’s decision to overturn Roe v. Wade. Yet these midterms will have other constitutional ramifications, from the health of the United States’ democracy to the composition of its judiciary.

House of Representatives

The most visible work of the House of Representatives in the current Congress has been undertaken by the Select Committee to Investigate the January 6^th Attack on the United States Capitol. The committee has reviewed documents, interviewed witnesses, and held nine public hearings about the events leading up to and including 6 January. Most recently, it has subpoenaed former President Donald Trump, although he is unlikely to ever testify.

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The term ‘backsliding’ has been coined to describe the phenomenon by which leaders who come to office within a democratic framework, only to attack some of democracy’s core features when in office. Stephan Haggard and Robert R Kaufman outline some of the key features of ‘backsliding’, discuss how and why it can take hold, and whether there are warning signs that such a process could happen in the UK. 

During the presidency of Donald Trump, American democracy suffered the most serious challenge it has faced since the country’s Civil War. Trump and his administration inflamed divisions that jeopardise the rights of women and minorities; attacked the press; defied oversight; sought to stack the judiciary and law enforcement agencies with partisan loyalists; challenged the integrity of the electoral system, and ultimately stoked a violent challenge to the democratic transfer of power. These threats were different from conventional forms of democratic reversion, such as the coup d’etat. Instead, they reflected a more insidious process that has come to be known as ‘backsliding,’ in which illiberal leaders rise to power within a democratic framework and attack core features of democracy from within.

Because the United States occupies a unique position at the heart of the international system, backsliding there commanded worldwide attention. But the United States was hardly alone. In a new study, we identified at least 15 other countries in which duly-elected democratic governments recently moved along similar paths. Not all of these paths lead all the way to autocracy; in the United States, democracy survived the Trump era badly damaged but intact. But depending on the metric used, more than half of these cases slid into ‘competitive authoritarian rule’: systems in which elections persisted but were manifestly rigged. Notably, although many of the failed democracies we examined were weakly institutionalised at the outset (for example, Bolivia, Ukraine, and Zambia), others such as Hungary, Poland, and Venezuela were once considered relatively robust democratic regimes.

These cases raise the question of whether similar adverse developments could occur in other seemingly stable democracies. Could they perhaps even happen in the UK? 

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As reported in the latest issue of Monitor, the US presidential election raised even more constitutional issues and questions about the US system of elections than many anticipated. Colin Provost and Nadia Hilliard of the UCL Centre for US Politics discuss how the election was administered, and the roles of the judiciary, Electoral College and social media in the process.

The US presidential election of 2020 has been perceived by many observers as one of the most important elections in American history. A highly polarised electorate turned out in record numbers in the middle of a pandemic and for the first time, the incumbent president refused to concede after a clear result, while pushing a steady, yet unsubstantiated series of claims about voter fraud and voting irregularities. Given the highly unusual set of circumstances surrounding this election, it is worth considering how well US institutions performed with respect to the conduct of a free and fair election, and what lessons should be learned for future electoral cycles.

1. States can run elections smoothly.

Although federal laws that are harmonised across the states might seem to make more sense for national elections, the US Constitution allows each state to set its own election laws, as long as they are in compliance with the 1965 Voting Rights Act and other relevant, federal legislation. Keeping that in mind, it is important not to understate the fact that, on average, the states performed well in terms of administration of this election. Despite the pandemic, millions of people were able to vote and perhaps more importantly, a large subset of those people were able to vote by mail, so that they would not have to put their health in jeopardy by waiting in long – and often cramped – queues. Ultimately, those votes were all counted, even if a victor could not be declared until 7 November —five days after election day.

2. US electoral institutions are resilient.

The institutions of election administration proved to be resilient in the face of baseless allegations of voter fraud and voting irregularities: those allegations were many, and continue to be made. In a normal election year, post-election lawsuits are practically non-existent, but in 2020, the Trump campaign filed dozens of lawsuits across several states, nearly all of which have been found to be lacking in merit, while tweeting inaccurate information about the election and its results. Georgia senators David Perdue and Kelly Loeffler suggested that Georgia Secretary of State Brad Raffensberger – the state official in charge of overseeing elections and certifying the results – should resign after not finding evidence of electoral fraud in that state. Additionally, President Trump invited the leadership of the Michigan legislature to the White House, apparently with the goal of getting them to nominate different electors to the Electoral College that formally votes in the new president than those selected by the Michigan Democratic Party. The only legal basis for this occurring is if one believed that Joe Biden did not clearly or lawfully win the state, even though his margin of victory was in excess of 150,000 votes. Finally, a large number of Trump allies in Congress, the media and elsewhere supported these actions, implicitly or explicitly. Despite all these challenges, the votes were counted and certified by all 50 states and the District of Columbia.

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