Constitutional reform: first lessons from America

Since the election debates largely took place between the People’s Progressive / Civic Party (PPP / C) and the National Unity Partnership / Alliance for Change (APNU + AFC) government has ended somewhat in transferring authority to the former, the regime he has not stopped promising constitutional and electoral changes to prevent what he considers to be a blatant attempt by APNU + AFC to steal the election. Of course, for its part APNU + AFC has also been cutting reforms which it claims are necessary to prevent an ‘illegal’ government from ever taking power again through illegal voting. The above posts are rooted in the single assertion that the March 2020 elections were handled and as similar claims are currently being made in the United States, one is forced to take a closer look at his vaunted democratic processes, and I have come upon some lessons, that will be presented in two parts, which may be of importance to Guyana.

Short and for the benefit of context; after some delay, much of it due to the current Covid-19 pandemic and the resulting high number of postal votes, the Democratic presidential candidate, Mr Joe Biden, was finally declared the winner of the US 2020 election by most officials state and the major media houses. Given the level of consensus, the loser would usually surrender gracefully and transfer arrangements begin to allow a seamless transfer of government to the ‘elected president’ on 20th January of the new year. There is no law forcing the incumbent to surrender but experience has shown that an awkward transition can be costly for the country.

President Donald Trump, however, who can be considered an ethnic entrepreneur, received some 72 million votes and these came largely from white Republican Americans who believe the system has been treated unfairly and needless radical change – ‘drain the swamp’ – has encouraged. He remains extremely popular among these Republican voters, who largely account for his apparent control of the party organization. To date he has not only refused to surrender but has been approaching many local election bodies and the courts with many unfounded allegations that the election was handled. The transition officially begins when the funds allocated by Congress – US $ 10 million – for that purpose will be released by the General Services Administration, but Trump has not only released the funds but it has also refused to provide the Biden transition team with normal courtesy of office space, access to essential personnel, and the like.

The first lesson is about the transition period itself. Apart from its usefulness in facilitating government familiarization and preparation, the transition period was intended to account for the physical conditions of travel and related facilities in the 18th and 19th centuries. But importantly, as we are witnessing now, it also provides the kind of place for resolving election disputes that is not present in Guyana. In the USA, laws require electoral control bodies and courts to intervene immediately and resolve disputes at almost any point in the electoral process.

For example, the Help America Vote Act of 2002 requires states to establish and maintain uniform and unconditional systems for dealing with any person who believes that any provision of the Act has been violated ‘including violations that have occurred, is happening, or is about to happen ‘in a timely manner. Most states have such mechanisms in the form of local electoral boards that do the day-to-day management of elections. Pennsylvania, a province of 12.8 million and 20 Electoral College votes that finally took Joe Biden to the 270 Electoral College votes he needed to win the 2020 election, has County Election Boards with the authority to ‘Investigate electoral fraud, irregularity and breach of this. law (Pennsylvania Election Code), and to report all suspicious circumstances to the district attorney. ‘

GECOM claims that it has no such authority and usually passes the government to a motivated winner and the mechanism to try to stifle a legal process that could drive him or her out of office. Imagine the turmoil that could have resulted if Trump’s allegations of electoral manipulation were allowed to gain traction by being subject to year-long litigation. The Westminster-like elections petition may be appropriate in a context where election challenges relate to individual constituencies and will rarely result in the whole government being removed from office. For this and the other reasons outlined above, similar formally structured US transitional arrangements seem more appropriate for presidential systems. Lesson two is about the structure of the electoral machinery. The big problem for many is that Guyana’s elections manager – GECOM – is in the hands of the exact politicians he has to serve, and accordingly there is a view that it should be amended to at least include more independent members. I have previously argued that there is nothing fundamentally wrong with GECOM’s management structure (Future Notes, SN: 17/07/2019). Furthermore, it is almost impossible for the major stakeholders ie, the major political parties, to agree on one much smaller ‘neutral’ chair to agree on six such neutral persons and / or the manner in which a board that n including such persons being established. The usual recommendation of the need for independent election management authority from the international community either fails to understand Guyana’s highly divisive ethnic nature and the perception of the cost of losing elections or has a diluted notion of neutrality, ie one not circumcised by political society.

Philadelphia has a population of 1.5 million and is the most populous city in Pennsylvania. It has a three-member bipolar elections commission – two Democrats and one Republican – serving a four-year term that coincides with mayor and city council elections and voter registration. This partisan arrangement is not unusual in the US, and yet not all of Donald Trump’s misery about elections being handled in Pennsylvania and elsewhere has found any traction with those who control election management; not only because the allegations are false but also because they are promptly dealt with.

The political nature of Guyana that encourages ethnic entrepreneurship and thus increases the perception of the cost of loss, by the population and their various ethnic representatives, is the main problem that a different governance mechanism has to deal with hi. However, political tension can be reduced at this stage if governments can be considered to operate more fairly and within an electoral process that is fair and does not allow allegations of electoral fraud to accumulate. Here, a period of transition and legal electoral arrangements as existing in the US could be hugely helpful.

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