Controversy over voter access is a reoccurring issue in US politics, most recently revitalized by the midterm elections of November 2018. Although concerns over voter access were frequently raised during the elections, one case stands out as particularly troubling. The 2018 gubernatorial race in the state of Georgia displays how democratic institutions can be manipulated for antidemocratic ends, constituting a case of stealth authoritarianism. Moreover, further examination of the case reveals that free and fair elections were compromised, highlighting an institutional weakness in Georgia’s democracy, rendering it vulnerable to democratic backsliding, understood as the incremental undermining of democracy from within.
The Georgia case
In November 2018, Republican candidate Brian Kemp defeated Democratic candidate Stacey Abrams in the Georgia governor’s race. The election was one of the closest of all gubernatorial races that year, with a margin of victory of only some 50,000 votes. Moreover, the election was highly controversial, shrouded by allegations of voter suppression.
The controversy surrounding Georgia’s gubernatorial race centered on the fact that Kemp ran for governor while serving as secretary of state. In this position, Kemp presided over electoral rules and was in charge of administrating and monitoring the election. Despite posing a clear conflict of interest, Kemp refused to resign. Instead, he utilized his position as secretary of state to change the electoral rules, tipping the electoral playing field in his own favor.“The exact-match rule had previously been subject to harsh criticism, as it was shown to disproportionately affect certain groups of voters, specifically poor people and people of color.”
In 2017, Kemp and the Georgia General Assembly reenacted the so-called exact-match policy. This policy requires that a voter’s information must “exactly match” records held by Georgia’s Department of Driver Services or the Social Security Administration. If information does not match, the registration application is held back, and if mismatches are not corrected within 26 months of the initial application, it is rejected. The exact-match rule had previously been subject to harsh criticism, as it was shown to disproportionately affect certain groups of voters, specifically poor people and people of color. In February 2017, the exact-match policy was suspended when the state of Georgia settled a lawsuit filed by civil rights groups alleging it practically disenfranchised racial minority groups, violating the Voting Rights Act as well as the First and Fourteenth Amendments. Later that same year, however, the Republican-controlled state legislature passed a bill codifying the policy. Shortly thereafter, the bill was signed into law by Republican governor John Nathan Deal right before the 2018 governor’s race, suggesting a strategic move by Georgia Republicans aimed at systematically excluding voters who would likely vote for Stacey Abrams.
A case of stealth authoritarianism
The key principle underlying a democratic system of government is the election of political decision-makers by means of a competitive struggle for the people’s vote.1Joseph Schumpeter, Capitalism, Socialism and Democracy (New York: Harper & Brothers, 1943). This electoral power provides the people with the ability to hold political leaders accountable for their actions and ultimately ensures political representation of the people’s will, making elections a foundational hallmark of democracy. For the electoral struggle to be truly competitive, elections must be both free and fair, with people having free and equal access to vote for the candidate they please, and that the playing field between candidates is somewhat level.2New Haven, CT: Yale University Press, 1972More Info →
A political candidate that presides over the election in which he himself competes, and who uses his position of power to change the electoral rules for his own benefit, seems intuitively at odds with these principles. Such an action seems at first glance to constitute a clear case of corruption, commonly defined as the abuse of entrusted power for private gain.3Jakob Svensson, “Eight Questions about Corruption,” Journal of Economic Perspectives 19, no. 3 (2005): 19–42. Republican efforts to reinstate the exact-match policy appear intended to aid Kemp’s victory, suggesting an egregious abuse of power that undermines fair and unbiased elections.
However, the use of the exact-match policy did not only ensure Kemp’s victory, it did so at the expense of part of the electorate. While the exact-match policy does not directly single out racial minority groups, it disproportionately affects such groups. In October 2018, it was reported that over 53,000 voter registrations were being held back by Kemp’s office because the information on the applications did not exactly match the information held in state databases, inconsistencies being no more than a missing hyphen or a simple misspelling. Of these, an estimated 70–80 percent were made by African American applicants, while Latinx and Asian Americans’ applications were also held back to a greater extent than white applicants. By disproportionately affecting racial minorities, who are traditionally Democratic voters, the exact-match policy tipped the election in Republican favor. The exact-match policy systematically serves to benefit the Republican Party, skewing the political playing field in their favor by undermining the Democrats’ electoral base.“Electoral laws can be structured in ways that exclude opposition voters from electoral participation and disenfranchise opposition groups with the possible end goal of decreasing the likelihood of turnover in government.”
Ultimately, the exact match policy represents more than just a case of political corruption. It compromises the freedom and fairness of elections in the state of Georgia. While elections are a defining feature of democracy, electoral laws are a fertile ground for what Ozan Varol terms “stealth authoritarianism”—the use of legal mechanisms present in democratic regimes for antidemocratic ends.4Ozan Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (2015). Electoral laws can be structured in ways that exclude opposition voters from electoral participation and disenfranchise opposition groups with the possible end goal of decreasing the likelihood of turnover in government. By enacting the exact-match policy—which Kemp, as secretary of state, enforced—Georgia Republicans practically disenfranchised certain groups of traditional Democratic voters. By actively obstructing the political participation of parts of the electorate, the exact-match policy distorts democratic competition and potentially influences who controls government.
Voter identification laws
Laws requiring people provide some form of official identification in order to register to vote or to cast their vote are by no means rare and are found in several reputable democracies worldwide. Voter identification laws, such as the exact match rule, are not inherently antidemocratic, nor do they necessarily conflict with the constitutional amendments, ensuring the right to vote, or the Voting Rights Act of 1965 prohibiting racial discrimination in voting. As of 2019, 35 American states deploy some form of voter identification laws. There is, however, a high degree of variation across states as to the strictness of these laws. Some states require photo identification be presented at the polls, whereas others accept nonphoto identification. States also vary with respect to the procedures taken in case identification requirements are not fulfilled. Whereas some states accept provisional ballots to be counted without further actions on part of the voter, others require proper identification be presented after Election Day within a certain time limit in order for the ballot to be counted.
The state of Georgia has some of the strictest voter identification requirements in all of the United States. Georgia voters need to present one of six accepted forms of photo identification at their polling place and if they are not able to so, they will be allowed to vote on a provisional ballot, which will be counted only if appropriate photo identification is presented at the county registrar’s office within three days after the election. Other states with similarly strict voter identification laws include Indiana, Kansas, Mississippi, Tennessee, and Virginia. But while strict identification requirements are commonly found across the United States, the state of Georgia continues to stand out due to the exact match policy.
Proponents justify such strict voter registration and identification laws through calls to prevent voter fraud. While this argument seems honorable at first, research has shown that individual voter fraud is extremely rare. A comprehensive inspection of all credible allegations of voter impersonation from 2000 to 2014 found only 31 valid instances of fraud out of more than 1 billion votes cast during that period.
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 only eligible citizens cast a vote, hence protecting electoral integrity. Yet, to this day, no systematic evidence to support the claim that voter fraud is widespread to a degree that endangers the electoral integrity of American democracy.
A component of stealth authoritarianism is using rhetoric that invokes the rule of law, democracy, and constitutionalism to mask abuses of power.5Varol, “Stealth Authoritarianism.” Seemingly noble objectives such as ensuring electoral fairness and integrity can mask antidemocratic purposes, as the Georgia case shows. By enforcing the exact-match law and claiming to protect electoral fairness and integrity, Kemp effectively invokes democracy and the rule of law to, not only, legitimize the exact-match policy, but distract from its disenfranchising effects.
A democracy vulnerable to backsliding
While the exact match policy and the structuring of electoral laws in Georgia are not alone enough to question the broader state of democracy in the United States, the controversy surrounding the 2018 gubernatorial race certainly demonstrates how voter access continues to stand out as a highly contentious issue of American democracy.“The 2018 midterm elections exhibited multiple cases of alleged voter suppression.”
Voter identification and registration laws constitute only one way of restricting the right to vote. Many American states deploy a wide array of tools constraining the access to vote, including roll purging and ex-felon disenfranchisement. The 2018 midterm elections exhibited multiple cases of alleged voter suppression. In Florida, approximately 1.5 million ex-felons, of whom almost 500,000 are African American, were prohibited from exercising their right to vote due to the state’s disenfranchisement of convicted felons.6In those same 2018 midterm elections, Floridians voted to restore the voting rights of those with felony convictions, which would take effect January 2019. In response, the Republican-controlled Florida legislature introduced and passed new restrictions, requiring felons to pay any fines or fees remaining before being able to vote. And, in North Dakota thousands of Native Americans were prevented from voting due to the state’s identification laws requiring a residential address. Along with Georgia, these cases constitute only the latest examples of how laws with the stated objective of ensuring electoral integrity are used to constrain voting access and, in practice, disenfranchise certain parts of the electorate.
Stealth authoritarian efforts by Georgia Republicans—using the guise of law and equity to bolster electoral gains—draw attention to a severe weakness in the structural design of some states’ institutions. According to authors Aziz Huq and Tom Ginsburg, the US Constitution contains very limited checks on exclusionary electoral practices, and is generally very open to interpretation, rendering it an ineffective safeguard against democratic backsliding.7Aziz Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy,” UCLA Law Review 65 (2018). Democratic backsliding denotes the incremental process by which democratically elected leaders consolidate their power by undermining democratic institutions from within and has indeed become the most common way for contemporary democracies to die.8Nancy Bermeo, “On Democratic Backslidingcy,” Journal of Democracy 27, no. 1 (2016): 5–19. As the case of Georgia demonstrates, the absence of formal rules preventing those who compete in elections from occupying positions that enable them to set electoral rules—or at least prevents them from benefitting from exclusionary behavior—threatens to erode democracy from within. Individual political actors ought to prioritize the continuance of democracy and remain committed to free and fair elections.
Political scientists Steven Levitsky and Daniel Ziblatt argue that strong democratic norms of mutual tolerance and institutional forbearance are the guardrails of American democracy. In the current political climate, characterized by extreme partisan polarization, the perceived cost of electoral loss is exceptionally high and the willingness of political actors to infringe on the democratic process in order to prevent political opponents from gaining power is greater. The case of the 2018 gubernatorial race of Georgia might be indicative of a potentially critical deterioration of norms of institutional forbearance, ensuring that politicians refrain from exercising their legal powers in ways that imperil the democratic system.9New York: Penguin-Random House, 2018More Info → Without effective legal safeguards that prohibit politicians from infringing on central democratic concepts, such as the right to vote, American democracy remains vulnerable to democratic backsliding.