Controversy over voter access is a reoccurring figure in American political debate, most recently revitalized by the 2018 midterm elections. While concerns over voter access were raised in multiple instances during the midterm elections, one case stands out as particularly troubling. As such, the 2018 gubernatorial race in the state of Georgia displays the use of democratic institutions for anti-democratic ends, constituting a case of democratic backsliding, that is, the incremental process of undermining democracy from within. Examination of the case reveals a compromising of the freedom and fairness of the election and highlights a severe point of weakness in the institutional arrangement of American democracy.
The key principle underlying a democratic system of government is the choosing of political decisionmakers by means of a competitive struggle for the people’s vote . Thus, elections lie at the heart of what we believe democracy to be. Furthermore, for the electoral struggle to be truly competitive, we generally believe it to be essential that elections are both free and fair, in the sense that people have free and equal access to vote for the candidate they please, and that the playing field between candidates is somewhat level .
The issue concerning the gubernatorial race of Georgia centers around the fact that Republican candidate Brian Kemp ran for governor while serving as Secretary of State. As Secretary of State Kemp presided over electoral rules and was in charge of administrating and monitoring the election. Even though overseeing an election in which one competes clearly poses a conflict of interest, Kemp refused to resign his post. But not only did Kemp refuse to resign, he also utilized his position as Secretary of State to change the electoral rules, tipping the electoral playing field in his own favor.
In 2017 Brian Kemp and the Georgia General Assembly reenacted the so-called exact match policy. This policy requires that all letters and numbers listed on a voter registration application must appear exactly as they do on a citizen’s formal government-issued identification documents, such as driver licenses or social security cards, and thus exactly match the information held in state databases. If information does not match, the registration application is held back and if mismatches are not corrected within a certain time limit the application is rejected. The exact match rule had previously been subject to harsh criticism, as it was shown to disproportionately affect certain groups of voters, such as poor people and people of color. As late as in February 2017 the practice of the exact match policy was suspended, as the state settled a lawsuit filed by civil rights groups alleging it of practically disenfranchising racial minority groups, violating the Voting Rights Act as well at the 1st and 14th Constitutional Amendments. The reenactment of the exact match policy later that same year, right before the governor’s race, thus seems a highly strategic move from Kemp, aimed at systematically excluding voters, who would be likely to cast their vote for the Democratic candidate, Stacey Abrams.
Not only unethical, such practice compromises the freedom and fairness of elections in the state of Georgia and raises concern over the institutional safeguards of democracy in the United States as a whole. While elections are a defining feature of democracy, electoral laws are at the same time a fertile ground for what professor Ozan Varol terms “stealth authoritarianism”, defined as the use of legal mechanisms present in democratic regimes for anti-democratic ends. As a mechanism of stealth authoritarianism, electoral laws can be structured in ways that exclude opposition voters from electoral participation, roughly speaking disenfranchising opposition groups . The reenactment of the exact match policy appears to be exactly that, a structuring of electoral laws, which excluded opposition voters from electoral participation. In October it was thus reported that over 53.000 voter registrations were being held back by Kemp’s office because the information registered on the applications did not exactly match the information in state databases, inconsistencies being no more than a missing hyphen or a simple misspelling. It was further reported that an estimated 70-80% of these applications were from African American applicants, while also Latino and Asian Americans’ applications were being held back to a greater extent than white applicants. Disproportionately affecting racial minority groups, who would likely vote for the Democratic opposition candidate, the exact match policy tipped the electoral playing field in Kemp’s favor, thus compromising the freedom and fairness of the election.
Voter identification laws, requiring that people provide some form of official identification in order to register to vote or to cast their vote, are not inherently anti-democratic, and such laws are found in several generally reputable democracies worldwide. The general justification for such laws is that they prevent voter fraud. Accordingly, Brian Kemp has brushed off all allegations of voter suppression and electoral fraud, arguing that the exact match rule is simply a method of verifying voter registrations, meant to ensure that only legal citizens can cast a vote and hence to protect electoral integrity. Claiming to protect electoral fairness and integrity, Kemp invokes democracy and the rule of law. Such rhetoric not only serves to legitimize the exact match policy, it also takes away focus from its potential disenfranchising effects and allows Kemp to conceal the anti-democratic nature of his policy, showcasing yet another warning sign of stealth authoritarianism.
While the exact match policy and the structuring of electoral laws in the state of Georgia might not alone be enough to question the broader state of democracy in the United States, the controversy surrounding the 2018 gubernatorial race in Georgia certainly draws attention to a severe point of weakness in the institutional design of American democracy. The absence of formal rules preventing those who compete in elections from occupying positions that enable them to set electoral rules and to affect and judge electoral outcome, leaves it in large part to political actors to ensure the freedom and fairness of elections. In fact, according to authors Aziz Huq and Tom Ginsburg the American Constitution contains very limited checks on exclusionary electoral practices, and is generally very open to interpretation, rendering it an ineffective safeguard against democratic backsliding . Instead, it is the decisions of individual political actors to prioritize the continuance of democracy and to remain committed to the democratic game, that are essential to the stability and survival of American democracy. Authors Steven Levitsky and Daniel Ziblatt join this conclusion, arguing that strong democratic norms, such as mutual tolerance and institutional forbearance, are the guardrails of American democracy. The case of the gubernatorial race of Georgia thus might point to a potentially even graver threat against American democracy, that is, the deterioration of norms of institutional forbearance, ensuring that politicians refrain from exercising their legal powers in ways that imperil the democratic system . Schumpeter, Joseph. (1943). Capitalism, Socialism and Democracy. New York: Harper & Brothers.  Dahl, Robert. (1972). Polyarchy: Participation and Opposition. New Haven: Yale University Press.  Varol, Ozan. (2015). Stealth Authoritarianism. Iowa Law Review 100(4).  Huq, Aziz & Tom Ginsburg. (2017). How to Lose a Constitutional Democracy. Working paper.  Levitsky, Steven & Daniel Ziblatt. (2018). How Democracies Die. New York: Crown.
I am in total agreement that Brian Kemp deserves total repudiation – his actions were truly tyrannical and his choice not to recuse himself from overseeing an election he was a candidate for sets a very dangerous precedent. There was one additional move he made however that I feel went mostly overlooked during the end of the 2018 campaign. Two days before the election, he launched an investigation into Georgia Democrats after accusing them hacking into Republican data, a baseless claim that was uncovered to be a complete lie after the election. Kemp’s refusal to tolerate Abrams as a legitimate rival and his lack of forbearance deserve discussion. The Georgia Secretary of State abused the powers of his office to investigate an opponent, and most worryingly, his refusal to engage in mutual toleration resulted in his victory!