Just Because an Election Is Legal Doesn’t Mean It’s Legitimate
Attempts to prevent the governed from exercising their right to the franchise deserve to bear the stigma of illegitimacy.
About the author: Adam Serwer is a staff writer at The Atlantic, where he covers politics.
Updated at 2:38 p.m. ET on November 20, 2018
The Georgia Democrat Stacey Abrams won’t call her opponent, the Republican Brian Kemp, the legitimate winner of the 2018 gubernatorial election, although she concedes that he is the legal winner.
“We know sometimes the law does not do what it should and something being legal does not make it right,” Abrams told CNN’s Jake Tapper on Sunday. Her reasoning is that Kemp, currently the secretary of state of Georgia, abused his authority in an effort to suppress black votes and grant himself an unfair advantage. “I will never deny the legal imprimatur that says he is in this position, and I pray for his success … But will I say that this election was not tainted, was not a disinvestment and a disenfranchisement of thousands of voters? I will not say that.”
Abrams’s refusal to acknowledge that the election was legitimate has drawn considerable criticism. The Kemp campaign called her actions a “disgrace to democracy” and conservative commentators labeled them liberal hypocrisy. After all, Democrats came down hard on Donald Trump in 2016 when he said he would pledge to honor the results of the election only if he won. Democrats again harshly criticized Trump, Senator Marco Rubio of Florida, and Senator-elect Rick Scott of Florida for baselessly suggesting that Democrats were taking advantage of a recount to stuff ballot boxes for Scott’s Democratic opponent, Bill Nelson. How is what Abrams is doing any different?
In assessing these claims, it is not enough to note that the rhetoric on both sides is similar. What matters is whether there is a factual basis for the claims themselves—not which side is making them. And on this, the record is clear.
The pressures on mainstream-media outlets to draw an equivalence between Republican fantasies of voter fraud and Democratic claims of voter suppression are intense. Conservative pundits have argued that Abrams’s refusal to concede undermines democracy as much as the president’s rants about voter fraud. But there is no equivalence: one is an attack on the legitimacy of the democratic process, the other is an attack on efforts to undermine the democratic process.
It is true that Democrats believe an expanded electorate will work to their political advantage. But not only is that not necessarily the case, that possibility doesn’t legitimize deliberate Republican efforts to deprive Democratic constituencies of their constitutional right to vote. Once upon a time, it was the Republican Party that stood for universal suffrage, and the Democratic Party that sought to disenfranchise minority voters because of partisan affiliation. But that was a different Republican Party than the one that exists today.
Democracy depends on the consent of the governed. Elections in which one side attempts to rig the rules to its advantage, or seeks to prevent the governed from exercising their right to the franchise, deserve to bear the stigma of illegitimacy. In fact, to fail to question the legitimacy of such elections is to make election rigging perfectly acceptable, merely another instrument in the partisan toolbox.
Take Georgia. Kemp refused to step aside as secretary of state until after Election Day, and so presided over his own election as governor. In the name of combatting vanishingly rare voter fraud, he oversaw multiple prosecutions of minority organizers and poll workers for assisting others in casting ballots. As Carol Anderson wrote for this website last week, as secretary of state, Kemp purged more than a tenth of the electorate from the polls, fully 1.5 million voters—some legitimately, because voters had died or moved out of state, and some for dubious reasons, such as skipping an election. Days before the registration deadline, the AP reported that Kemp put more than 53,000 voter registrations, mostly from black voters, on hold.* That number is close to Kemp’s margin of victory, and beyond the threshold necessary for Abrams to have secured a runoff under Georgia law. Kemp used his authority as secretary of state to accuse the state Democratic Party of attempting to “hack” the state’s voter-registration system days before the election, without substantiating evidence. The secretary of state’s office issued a press release using partisan language indistinguishable from that of Kemp’s campaign. Instead of using his office to work with county officials on improving their processes and procedures, Kemp stood by as they shut down hundreds of polling places in mostly minority areas. On Election Day, polling places in majority-black areas faced immense lines due to the lack of working voting machines. At best, Kemp’s incompetence as secretary of state worked to his advantage; at worst, he deliberately abused his authority to improve his chances. Either should be unacceptable, regardless of his party affiliation.
High black turnout in Georgia does not justify the obstacles placed between those voters and the ballot box; if Republican lawmakers believed that such measures did not aid their political fortunes, they would not pursue them, or in some cases openly admit to doing so for that purpose. A successful Republican campaign to weaken the Voting Rights Act has ensured that they are able to do so without interference from the federal government. The strongest Republican defense of Kemp’s conduct is essentially that he tried it but it didn’t work.
Georgia provides an egregious example of Republicans abusing their authority to improve their electoral chances, but it is hardly the only one. Republican gerrymanders of federal and state districts after the Republican wave in 2010 ensured that Democratic gains were limited despite earning millions more votes nationwide (only in Maryland did Democratic legislators behave similarly shamefully). In Ohio, Democrats won 46 percent of the vote and 23 percent of the House seats. In Michigan, Democrats won 52 percent of the vote but less than 50 percent of the House seats. In Wisconsin, Republicans won overwhelming victories in the state legislature despite Democrats earning more than 50 percent of the vote for those seats. In state after state, Republicans have passed voting restrictions that spare their own constituencies while making it more difficult for those that lean Democratic to cast a ballot.
Compare this reality to Republicans’ cynical embrace of the voter-fraud myth. In-person voter fraud is extremely rare; you are more likely to be struck by lightning. Even with the Department of Justice in Republican hands, there have never been more than a handful of in-person voter-fraud prosecutions because it almost never happens (one conservative pundit regularly recycles the same anecdote, filling in the state as necessary). Nevertheless, Trump has argued that his popular-vote loss in 2016 was the result of illegal votes, even though a panel he convened to investigate failed to find a shred of evidence to support his claim. In a recent interview, he insisted, in a scenario that seemed drawn straight from Looney Tunes, that people engage in voter fraud by changing their clothes or wearing disguises and casting multiple ballots.
In 2018, the Trumpified GOP resorted to hyping claims of voter fraud in states such as Florida and Arizona, as those states merely tried to finish counting legal votes. The party’s leadership even grew frustrated with its Arizona senatorial candidate, Martha McSally, for refusing to indulge those conspiracy theories—allegations it knew were false. By contrast, there was no Democratic outcry when Republican Representative Mia Love of Utah developed a lead over her Democratic opponent, despite being behind on Election Day. Notably, the Republican allegations that Democrats were fixing the Florida recount ended with both the Republican senatorial and gubernatorial candidates winning.
In unguarded moments, some Republicans have been honest about their purposes. Kemp himself bluntly warned fellow Republicans about the peril of Democrats “registering all these minority voters.” In 2012, a Republican state legislator in Pennsylvania bragged that a restrictive voter-ID law would help Mitt Romney carry the state; in 2016, one of his counterparts in Wisconsin made a similar, and fateful, prediction that his state’s ID law would do the same for Trump. Emails in a recent court case show Michigan Republicans plotting to confine “Dem garbage” to districts where they could not threaten Republican ambitions, using race as a proxy for Democratic voters. Sometimes Republicans have argued openly that even if they target black voters or attempt to dilute their voting power, they’re only doing so because black people tend to vote for Democrats. In 2013, Texas Republicans argued that “it is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.” This is an argument that underlies the entire Republican vote-suppression campaign: If racial discrimination is rooted in partisanship, it is morally acceptable.
Only it isn’t. It is morally abhorrent, and Democrats and liberals are not the only people who should be saying so. This may undermine faith in the democratic process. But if the democratic process is being undermined, then losing faith is not only rational, it is a necessary first step to making the process fair and legitimate. Individuals’ ethnic background or partisan affiliation must not determine the power of their vote or their access to the ballot box. There is no way to criticize an unfair process without suggesting that the current process is, by some measure, illegitimate.
This is why the distinction Abrams made between the legal and the legitimate matters. Every election in the South from the end of Reconstruction in 1877 to the passage of the Voting Rights Act was legal; the deliberate suppression of black voters made every single one illegitimate. If you are thinking to yourself that by this standard, most American elections have been illegitimate, then you are dangerously close to a realization that black people have shared since their arrival on American shores: that American aspirations have historically fallen far short of a government by the people, for the people, and of the people. And it is precisely why legal is simply not good enough.
* This article originally stated that Kemp had placed registrations on a pending list shortly before the voter-registration deadline. In fact, it was the AP’s report that came shortly before the deadline. We regret the error.