On a Knife’s Edge

We are eleven days away from millions of Americans casting their votes in an election the stakes of which can hardly be overstated. Much has already been said about the choice between Donald Trump and Kamala Harris, so we avoid repeating it here. The simplest way to frame it is this: Trump has promised to dismantle many of the norms and institutions of the American political system, vowed to deport millions of people, and to erect a dictatorship on his first day in office. We believe we should take him seriously. Harris, on the other hand, has made several moderate policy promises, but most importantly, she has pledged not to do what Trump intends to do. The outcome of this election, both for the presidency and control of Congress, will affect millions of lives – within the U.S. and beyond.

With three members of our team currently based in New York, Verfassungsblog will provide a series of editorials on the election. We will bring on-the-ground reporting and analysis of the issues defining this election and, crucially, its presumably tumultuous aftermath.

The Republican Party, along with allied organizations such as ‘True the Vote’, the particularly ghoulish ‘America First Policy Institute’ or the ‘Heritage Foundation,’ has put unprecedented effort into undermining the integrity of this election. Simultaneously, countless Democratic and non-partisan civil society groups have been preparing responses to scenarios already impacting election officials, state courts, and voters.

We will therefore speak with those working on the front lines to combat rogue actors attempting to disrupt vote counting and certification, track efforts to curb the wildfire of misinformation, consult with legal academics to contextualize all the spectacle, and offer our own legal perspective as battles flare up in state election boards, courts, and Congress in the lead-up to the fateful date of January 6, 2025, when final certification is due.

Where the Race Stands

Our starting point is somewhere between hopeful and deeply (deeply!) worried. The polls are tightening, and the election is on a knife’s edge. To everyone feeling optimistic that Harris will win: do not be lulled into complacency by wishful thinking. Nobody can comfortably predict the outcome. Winning the presidency hinges on carrying key swing states: Pennsylvania, Michigan, Wisconsin, Arizona, Nevada, Georgia, North Carolina, and, crucially, the lone elector from Omaha, Nebraska. If Harris secures the northern battlegrounds but falters in the South, that one Nebraska vote could be the slimmest margin that pushes her to the needed 270 electoral votes.

This election is not just important because of its existential stakes. It matters because it illustrates how the nuts and bolts of a constitutional system – its tools, rules, institutions, and officials – can be eroded and co-opted to turn democracy against itself.

American democracy has always carried certain democratic deficits, as most systems do – no system is perfect, especially not one that’s nearly 250 years old. Many of these – the Electoral College, the equal Senate representation of populous states like California and almost empty states like Nebraska, the central role of states in regulating and administering federal elections – reflect political compromises that had to be made at the time of America’s founding. Yet today, not only do they primarily politically benefit one group: white, rural voters who, ironically, are among those most likely to claim the system is rigged against them. These institutional set ups have also proven crucial structural weaknesses that might enable Trump to ‘steal the election.’

Taking a Step Back

We begin this series by taking a step back. Amid the raucous we anticipate in the coming weeks, we want to spotlight one of the most distinctive – and arguably problematic – features of U.S. democracy: the Electoral College. Without it, today’s political dysfunction might look different, but much of the current malaise can be traced back to this system. Historically explainable yet increasingly indefensible, the Electoral College sets U.S. presidential elections apart from almost all personalized elections. In this system, the President is not directly elected by the people but by 538 electors. Each state is allocated a number of electors proportional to its population, and typically, the candidate who wins a state’s popular vote claims all its electoral votes, no matter how narrow the victory (‘Winner Takes All’). This system has allowed candidates like George W. Bush in 2000 and Donald Trump in 2016 to win the presidency despite losing the national popular vote by millions. Depending on whether Harris indeed wins the popular vote but loses one or several of the tight races in, for example, Pennsylvania, Michigan, or Wisconsin, we might very well see that magic again in 2024.

The democratic shortcomings of the Electoral College are glaring, yet the American political landscape largely acquiesces to them. Given the slim chances of reform, this acceptance may seem rational. However, the refusal even to discuss such structural flaws points to a deeper problem in contemporary U.S. political discourse. The fact that, for eight of the last 24 years, presidents have governed despite being rejected by the majority of voters normalizes undemocratic side effects over time. In front of this backdrop is reems remarkable that it is Republicans, not Democrats who complain about a ‘rigged’ system. Yet, by remaining silent on this issue, Democrats left the space for fundamental critique wide open – space Republicans have eagerly filled with election denialism, nativism, and misogyny.

From our perspective – perhaps idealistic and admittedly inexperienced – we can’t help but notice that what passes for realism in progressive US politics has often morphed into cynicism, a retreat from bold promises and ideals. Meanwhile, the right, though far from traditionally conservative, thrives on grand narratives and fundamental critiques of an indeed imperfect system. The imbalance between these discourses underscores the urgency of addressing these democratic deficits, not merely as technical problems but as part of a larger struggle over the values that should animate U.S. democracy.

How the Local Determines the Federal

But that is not the only issue. The Electoral College, which is here to stay, not only undermines the will of the majority but also results in the extreme localization of matters of national concern. We will explore this localization in greater detail in the weeks to come, but for now, we want to already underscore how the Electoral College is responsible for localization, which again enables easier disruption. In this system, everything ultimately hinges on a handful of states. Within these states, the outcome is often decided by a few key counties, and within those counties, by a small number of counting centers and administrative offices, staffed by a few dozen or perhaps a few hundred election workers.

This hyper-localization of national elections means that the decisions of a tiny fraction of people, in very specific places, can determine the direction of the entire country.

Few of these local institutions are designed to withstand the pressure of nationwide scrutiny and targeted political interference, let alone the sort of strategic assault and co-optation that the Republican party and its allies have undertaken since 2020. Imagine your local vote counting center. Probably you would not even know where that is – we certainly do not. These are otherwise absolutely mundane, non-descript routine tasks. Voting, counting, tabulating, filling out an Excel form and reporting results. Yet, when an entire political apparatus focuses all its resources on just a handful of local election officials and seeks to derail and distort their work, local capacities to function effectively can quickly falter.

Winning Through Disruption?

Further, the Electoral College offers plenty of opportunity for disruption. This is partly because of localization – influencing some vote count centers in Pennsylvania, Georgia, and Michigan is easier than tampering with all centers in the country – but also because the Electoral College adds several procedural steps that may be abused.

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In December of each election year, the electors convene in their respective state capitals to cast their electoral votes, which are then sent to Washington, D.C. – once by horse-drawn carriage, and today, we assume, by heavily armored vehicles. In the first week of January, these electoral votes are counted and certified by the House of Representatives. It was on this day in 2021 that Donald Trump incited an insurrection to thwart this process and prevent the peaceful transfer of power to Joe Biden. That same ceremony – the counting and certification of electoral votes – is again scheduled for January 6th, 2025. In that sense, the battle for America’s future only truly begins once the polls close.

Such steps could provide entry points for Republican attempts to disrupt the election process. Republican-affiliated actors might aim to politicize the selection of electors and other procedures that were once routine. For instance, if voting and vote-counting devolve into chaos in a state, local officials may either fail – or deliberately refuse – to certify all votes. Despite federal reforms in 2022, there is still ambiguity about who, and through which process, would determine if a state can legitimately allocate its electoral votes in such a scenario. If electoral votes are not cast, it disenfranchises millions of voters; casting them in a way that does not reflect a result known only months later creates similar harm.

Most likely, these disputes will end up in the courts, beginning with state Supreme Courts and ultimately reaching the U.S. Supreme Court, leaving critical aspects of election integrity in legal limbo.

The Trump campaign will likely attempt to incite targeted protests or riots at ballot-counting centers and certification offices, seeking to intimidate workers, create chaos, and disrupt the process. The incessant spread of misinformation about voter fraud and other things is poised to further undermine the already dwindling trust in the integrity of election procedures that are so critical in making liberal democracy work. Against the backdrop of attempts to delay the certification process, the media will play a pivotal role in shaping the public’s visual and narrative expectations, which could help mitigate fears and suspicions that something has gone wrong.

Disturbingly, this means that Republicans do not even need to flip the vote to succeed. Given the decentralized nature of U.S. elections, it may be enough to generate sufficient disorder that state governors and legislatures – reminiscent of the U.S. Supreme Court in Bush v. Gore – can simply say, “This is too chaotic, no more recounts.” The most extreme consequence of this would be an idea that already circulated in 2020 and is currently the law of the land in North Carolina, a crucial swing State. According to that idea, state legislatures, which are Republican in some swing states, could simply appoint electors themselves if there would be only sufficient doubt about the viability of the election. How realistic this is remains to be seen as it would likely affect all other races in that State as well (House and Senate) but it might be significantly shake the process.

Trust and Civility

Finally, the current state of the political race, marked by hostile rhetoric and conflicts not only over policies but also concerning the democratic process itself, underscores a more profound truth: the necessity of maintaining a basic level of trust and civility as fundamental to any functioning deliberative system of government.

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However flawed America’s electoral institutions might be, democracy itself ultimately depends on trust – trust in institutions, trust in the media, and, to some extent, trust in one another. In contemporary America, trust in all three is at a historic low. On TV, Americans have been told that the 2020 election was rife with fraud and that climate change is a myth. Many say they know few, if any, people “from the other side.” And many agree that certain parts of the federal government are incompetent and untrustworthy, especially when the opposing party holds power.

Democracy also relies on a basic level of mutual respect and civility. A conciliatory tone, respect for election results, and a rejection of violence are long-term requirements for any deliberative system. Yet, we have already witnessed two assassination attempts on Trump, who was quick to blame Democratic rhetoric without questioning his own role in continuously stoking public anger, fear, and anxiety.

Both trust and civility are lost once one side begins to see the other as an existential threat to the country’s future – and that is exactly where we are today. The most brazen attacks on and disregard for institutions, culminating in the attempted coup almost four years ago, came from Trump and his supporters. However, simply pointing fingers will not solve the problem.

Yet, in many respects, these fundamental struggles also offer a glimmer of hope. It is not all election deniers and groups intent on dismantling reproductive rights, the administrative state, or democracy itself. Quite the opposite. Hundreds of thousands of Americans work tirelessly to make democracy an everyday reality. They leave their homes and jobs, sometimes for days or weeks, to travel to swing states and help out. Over recent years, a vast network of experts, volunteers, lawyers, supervisors, and community organizers has emerged – a kind of civil constitutional force working to safeguard the democratic process.

Amid the doom and gloom, we will also shine a light on these stories. Because at the end of the day, democracy is government by the people, for the people. And when that model comes under pressure – as it clearly is, both in the U.S. and globally – it is up to the people, to all of us, to act. We are concerned, but also hopeful, for these eventful weeks ahead.

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Editor’s Pick

by ISABELLA RISINI

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The Week on Verfassungsblog

… summarised by EVA MARIA BREDLER

This Saturday, 26 October, Georgia will vote. International attention turned to the small country in the Caucasus earlier this year, when the government sought to pass the so-called “Agent Law”, aiming to harass civil society organizations. NIKOLAUS VON BERNUTH (GER) sees Georgia at a crossroads – between the Kremlin and the EU, authoritarianism and democracy. Whether the opposition can set aside its differences and focus on preserving democracy remains uncertain.

Germany, in any case, is concerned about preserving its democracy. It was widely discussed how to best protect the Federal Constitutional Court (FCC) (also here on our blog). Now, the German Parliament has debated draft bills aimed at the FCC’s resilience. MATTHIAS KLATT and MAX WEBER (GER) consider the proposed constitutional amendment too vague and show what could be done about it. LUKE DIMITRIOS SPIEKER (GER) also identifies gaps: important protective elements in the Bundesverfassungsgerichtsgesetz (the law regulating the FCC) remain vulnerable to the influence of a simple majority in Parliament. He suggests that amendments to the Bundesverfassungsgerichtsgesetz should require the Federal Council’s approval.

Education is compulsory in Germany, but apparently not for everybody: children of refugees often enter school later and lose crucial time to learn and develop. KAJO KRAMP, JOHANNA KUNZI, LAURA VALDIVIA, and MORTIZ DRESCHER (GER) embark on a “search for lost time” and conclude that the unequal treatment of refugee children compared to other school-age children unjustifiably interferes with their “right to educational access”.

Protecting refugee children is also a matter of EU law. This summer saw new regulations in the Common European Asylum System being adopted, which enter into effect in 2026. They revolve yet again around the eternal question of responsibility: who processes the asylum application? Not everything should be left to the overburdened countries at the EU’s external borders – especially when it comes to unaccompanied minors. ROBERT NESTLER and NEREA GONZÁLEZ MÉNDEZ DE VIGO (GER) explain what the children’s rights guaranteed in the EU Charter of Fundamental Rights mean for the procedure for unaccompanied minors.

Unfortunately, it seems that fewer and fewer EU states are interested in what is permissible under the Common European Asylum System anyway. In mid-September, the new Danish government presented its plans to enforce what it has labelled as the strictest admission regime ever in the field of asylum law. SALVO NICOLOSI (EN) tests whether and where the Dutch plans collide with both EU law and international law. But also national law could thwart the plans. While the Dutch government refers to an exception provision from the Dutch Aliens Act of 2000, VIOLA BEX-REIMERT and GIEL HEERINGA (EN) do not consider this exception applicable in this context.

This week brought more news from the Netherlands: Following reports by The Guardian and the Israeli-Palestinian portal 972 in May that Israel had spied on the International Criminal Court, 20 complainants have now called on the Dutch prosecution to investigate. SERGEY VASILIEV (EN) believes the criminal complaint to be both appropriate and promising.

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Italy has been in the news this week due to the blow to its Albania deal, coming from a Roman court. Meloni is now determined to implement the deal by decree, come what may, and even if a court halts the whole thing. In light of this, resilience might also be a good idea for Italian institutions – such as public broadcasting. The European Media Freedom Act already requires this institution to depoliticize, which poses several challenges for the broadcaster RAI. Its “parliamentarized” regulatory model carries the risk of political capture in a politically charged environment, warns YLENIA MARIA CITINO (EN).

Constitutional crises as far as the eye can see: In Pakistan, the (possibly illegitimate) government has now amended the constitution in a rush, primarily to restructure the judiciary. MOEEN CHEEMA and MARVA KHAN CHEEMA (EN) provide an initial assessment of what the constitutional amendment means.

This week, we concluded our symposium africanlegalstudies.blog on “Unmasking the Intractable: Exploring Anti-Racism and the Law” (EN): Jean-Aristid Banyurwahe argues that the constitutional “debt brake” undermines Germany’s obligation to support developing countries affected by climate change. SERAWIT DEBELE reflects on the limits of legal protection if it is not accompanied by social change, using the example of a queer refugee. MARIE-LOUISE REUTER explores intersectionality as a concept to effectively combat racism and racial and ethnics discrimination. MEHRDAD PAYANDEH considers the CERD a very promising legal instrument to combat (structural) racial discrimination but regrets that its use is hindered by a lack of visibility, resources and political will of States to fulfil their obligations. SHREYA ATREY explains “why offshore processing of asylum applications is actually racist”. FAREDA BANDA analyses if sanctions work, exploring sanctions in Rhodesia from a personal historical perspective. THOKO KAIME and BONOLO RAMADI DINOKOPILA close the symposium with reflections on why teaching international law should be an antiracist endeavour.

And a little preview: Next week, we will launch a symposium on “Europe’s Geopolitical Coming of Age: Adapting Law and Governance to Harsh International Realities” (EN). This symposium explores transformative shifts in European security and defence law in response to Russia’s invasion of Ukraine, examining the shift from a presumption of peace to confronting existential threats. It focuses on how this transition reshapes critical areas like judicial accountability, defence cooperation, migration, climate security, and disinformation, underscoring the urgent need for new legal frameworks to protect democracy, security, and fundamental rights in an evolving geopolitical landscape.

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That’s it for this week! Take care and all the best.

Yours,
the Verfassungsblog Team

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