On December 6th, the Romanian Constitutional Court (CCR) annulled the Presidential Elections. The CCR’s decision followed the disclosure of intelligence documents on December 4th. These showed Russian interferences in the electoral process and campaign, via propaganda and disinformation. The gravity of the violations evidenced by the documents released, coupled with the many concerning declarations by Călin Georgescu, made the CCR’s intervention vital. However, the modalities of and belatedness of the CCR’s and the Romanian authorities’ response with respect to this unfolding mess do nothing but exacerbate the root causes of Georgescu’s win, bolstering his claim that democracy is being denied to the people of Romania.
That is an objective assessment relating a cause to an effect. It’s not random guesswork, it can be substantiated in various ways. But the cause was not illegitimate, thus the result is still valid.
Precisely the same thing can be done relating illegitimate causes to effects. A low effort can have a high effect, and high effort can have can have a negligible effect, and everything in between.
The question was whether we should be invalidating elections when the effort to influence them illegitimately was high, or when those efforts had a high effect. And the answer, of course, is “whatever is best for democracy”. What’s best for democracy is to go with the impact, not going by effort: Otherwise Russia could spend a couple millions each election without having any effect and completely deny Romania to ever elect a president.
So: Elections get invalidated if a) there was illegitimate influence and b) if said influence had too large of an impact. The actually fuzzy thing here is “too large of an impact”, not “how do we relate influence to impact”, and just as with things like Radbruch’s formula there won’t ever be complete clarity on what’s “too much” but some lines can be drawn with confidence, say, when a “further ran” candidate comes in first in a way that can be directly, and practically entirely, attributed to a highly illegal TikTok campaign. Another line that can be drawn is if he would have come in third, or any lower place, not entering run-offs. A thing that would be fuzzy is his campaign, indirectly, switching out one of the top two candidates for a third one. In such instances it would be good I think to be able to first have a run-off between all three candidates, then, if there’s no clear winner, have a third run-off. That would minimise the effect of the illegal campaign without re-doing the initial vote.
And i think that this is where it does become best for Democracy to not go by impact, because the subjectivity of it can easily be abused and this is also what the article sees as a problem in arguing that the choice to invalidate the one but not the other election was likely motivated by how favorable or unfavorable the result was to the current government. And this also will likely be exploited against Democracy as the author of the article points out.
It is a fundamental weakness of Democracy, that it has to adhere to neutral processes even in the face of bad actors wanting to destroy it. The problem is that these bad actors already win, by pushing the democratic actors into decisions like having to redo an election. That is why these difficult decisions should be made on as much of a politically neutral basis as possible. With the interference in Romania being so evident and severe, i think this should cover both elections to be redone.
It could be abused by a corrupt court, at which point we’d have a bigger problem than election interference and which can also be influenced by the wider state and the electorate itself, while going by effort can be abused by a foreign actor, over which neither have much influence.
If only there was a political theory addressing it. Just as with the paradox of tolerance, no, a democracy does not have to and should not offer a neutral playing field to forces wishing to abolish it.
To quote Goebbels:
Even though the results are, broadly speaking, unaffected by the influence? Russia is just going to spend some money to influence the next ones, probably again have negligible impact, yet they’re again going to get annulled, and then in the next ones, and the next – Romania is never going to have a parliament at that rate.
You’re handing the adversary a weapon, whereas the way to actually protect democracy is to stack everything against the enemies of democracy where we can, including the legal framework. This is not a debate club, it’s a war, you don’t win wars by being magnanimous.