18 October 2020   Leave a comment

The German magazine, Spiegel, has run an article that truly surprised me. It details the concerns that many European governments have regarding the outcome of the US national election on 3 November. The fear among some of those governments is that President Trump may prematurely declare victory on the basis of incomplete returns that give him a lead after the polls close. We tend to think of the politics of deciding an election is a purely internal matter, but the Spiegel article suggests ways that foreign governments may interfere with the domestic vote-counting.

“One could imagine a scenario in which Brazilian President Jair Bolsonaro rushes to congratulate the ‘re-elected’ U.S. president on election night, followed by Saudi crown prince Mohammed bin Salman, North Korean dictator Kim Jong Un and maybe even Russian President Vladimir Putin. Soon, though, the first congratulations from Europe might find their way to the White House, from Hungarian Prime Minister Viktor Orbán, for example, or his Polish counterpart Mateusz Morawiecki.

“Should a constitutional crisis in fact develop in the United States following the election, there are widespread concerns in Europe that the EU could once again be deeply divided.”

What I had neglected to remember is that international recognition makes a real difference in the legalities associated with the legitimacy of a government. Generally speaking, states grant international recognition on the basis of an assessment on whether a government effectively controls the population within its established borders. But there are many examples of states granting recognition to governments that fail this essential test. One need only remember the long period between 1949 and 1971 when the US insisted that Taiwan was the legitimate government of China despite the overwhelming evidence that the Communist Party in Beijing was actually the government in control of the population of China. We need to remember that in international law elections constitute only partial evidence that a government should be recognized. There are many dictatorships and monarchies in the world in which elections play no role whatsoever.

Americans should also remember that in the election of 2000, the Supreme Court ordered the election recount in Florida stopped, even though elections are traditionally regarded as state, and not Federal, activities.

“The Supreme Court effectively handed the presidential election to George W. Bush tonight, overturning the Florida Supreme Court and ruling by a vote of 5 to 4 that there could be no further counting of Florida’s disputed presidential votes.

“The ruling came after a long and tense day of waiting at 10 p.m., just two hours before the Dec. 12 ‘safe harbor’ for immunizing a state’s electors from challenge in Congress was to come to an end. The unsigned majority opinion said it was the immediacy of this deadline that made it impossible to come up with a way of counting the votes that could both meet ‘minimal constitutional standards’ and be accomplished within the deadline.

“The five members of the majority were Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

“Among the four dissenters, two justices, Stephen G. Breyer and David H. Souter, agreed with the majority that the varying standards in different Florida counties for counting the punch-card ballots presented problems of both due process and equal protection. But unlike the majority, these justices said the answer should be not to shut the recount down, but to extend it until the Dec. 18 date for the meeting of the Electoral College.”

The pressures from international governments who might prematurely recognize President Trump as the victor would only complicate the process of sorting out all the ambiguities of a contested election. And I have no doubts that some leaders, such as Russian President Putin, would hesitate to do everything possible to make the outcome as messy and ambiguous as possible.

Posted October 18, 2020 by vferraro1971 in World Politics

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