With the 2024 presidential elections rapidly approaching, concerning trends in electoral confidence and rule of law have emerged across party lines in the US. The latest Rule of Law Index, released last week by the World Justice Project (WJP), shows the US dropping to 43rd globally in measurements of “lawful transition of power” — a six-place decline that comes amid a broader erosion of institutional trust. In an interview with JURIST Editorial Director Ingrid Burke Friedman, WJP Executive Director Elizabeth Andersen discusses these findings and potential solutions. Drawing on over two decades of international legal expertise, including leadership roles at the American Bar Association Rule of Law Initiative and Human Rights Watch’s Europe and Central Asia Division, Andersen offers unique perspective on America’s democratic challenges.
JURIST: The WJP Index shows the US dropping to 43rd globally in “lawful transition of power.” What specific factors drove this decline?
WJP Executive Director Elizabeth Andersen: That ranking for the United States is based on survey questions that we ask of both legal practitioners and ordinary people — a nationally representative sample — about different aspects of the electoral process and whether they consider the electoral process fair, governed by law, trustworthy, and so on. The US has dropped in that area over recent years, as have 72 percent of countries globally.
On this particular issue around lawful transition in power, the data reflect a mix of forces. Some of what we are seeing in the data globally is part of a broad trend of rising authoritarianism, where executives are looking to limit how institutions such as courts, the media, and elections can check their power. In addition to these very real incursions on electoral processes, the data also show the effects of disinformation about election systems. Because our scores and rankings are based on surveys, sometimes respondents — especially household respondents — are susceptible to disinformation. Certainly, I think the US is a case in point where a lot of the erosion in trust in the electoral process is a function of disinformation.
JURIST: Your data indicates weakening institutional checks since 2016. Which erosions in executive power constraints are most concerning for US democratic stability?
Andersen: The US since 2016 has dropped 18 percent in WJP’s Index, measuring constraints on government powers. There are several components, or sub-factors, as we call them, of our measurements in that area: we look at the legislative checks on executive power, the judicial checks, the checks by independent audit agencies like the Government Accounting Office or inspectors general, the extent to which officials are sanctioned for misconduct, whether they’ll face repercussions or accountability for misconduct, whether there are civil society and media checks on executive authority, and finally, transition of power subject to the law.
In each of those sub-factors, the US has dropped by double digits since 2016. Most notably, it’s dropped by 21 percent in legislative checks on executive authority, 18 percent on judicial checks on executive authority, and 21 percent on the extent to which officials are sanctioned for misconduct. The others are significant too, but those really pop as the big drivers for erosion in constraints on government power.
JURIST: Your polling reveals deep partisan divides in election acceptance. Based on your experience, what strategies could help rebuild trust in US electoral institutions? And what responsibilities do political parties and candidates have?
Andersen: We have been encouraging local leaders to stand up for the US electoral institutions and help educate the public about the process in order to rebuild trust. The goal is to counter the disinformation that we think is at the heart of a lot of this distrust in the United States.
In many cases, it’s important to begin by building a bipartisan effort to avoid that kind of partisan divide that we see in our data, and that is too prevalent in today’s polarized environment. Bipartisan efforts should focus on strengthening civic education about how the electoral system works, bringing transparency to the electoral process, and inviting citizen groups to come and visit polling places, guiding them to understand how polling machines work, and to hear from the officials who are responsible for ensuring they operate and count votes correctly.
There are lots of examples of exemplary programs that are undertaking these kinds of efforts with real impact. One is Keep Our Republic, a non-partisan organization that works to educate voters on electoral processes in Michigan, Pennsylvania, and Wisconsin. [Editor’s note: To learn more about the organization, you can view a conversation between some of its representatives and Andersen here.]
As soon as there’s some transparency around the process, and people see with their own eyes and hear from their local officials about how it works, they understand and they accept and they trust. But it’s really important that those be bipartisan efforts.
JURIST: The WJP found declining trust in courts as election arbiters. How does your work with judicial systems internationally inform potential solutions?
Andersen: Again here, I think the starting point has got to be about information and public education, about how the court systems work, and bringing transparency to those processes. Generally, courts are at a disadvantage in explaining their work — almost by definition, in order to maintain their independence and impartiality, they often stand apart from society. Judges generally don’t talk about their judicial process or their decisions to the media and so on, in order to maintain their independence.
That’s entirely appropriate, but the cost is, of course, that sometimes the public doesn’t understand the judicial process, and the public can be susceptible to disinformation about that judicial process.
This is where others can be very helpful in standing up for courts and explaining how they, for example, adjudicate electoral disputes. Bar associations in particular have an important role to play in defending the courts, sharing information about how they work and what the process should look like, so people can be encouraged to be patient with that process, understand that process and have trust in it.
JURIST: WJP recently released a tool voters can use to calculate a candidate’s adherence to the rule of law. Tell us more about the Rule of Law Candidate Scorecard. How does it help voters evaluate candidates’ commitment to democratic principles?
Andersen: The idea for this scorecard really came from our data. One of the findings in the report we published in September — and one of the most surprising findings, frankly — was that 96 percent of Americans consider the rule of law essential to our country’s future. Even at this time when there’s a lot of anxiety about the rule of law and the prospects for our democracy, American citizens remain deeply committed to this idea, and that’s a much higher percentage than we see in other advanced democracies, like Germany or France or Japan.
And the other surprising and encouraging finding was that not only was it 96 percent overall — it was exactly 96 percent for both Republicans and Democrats. So this is something that Americans agree on even in this incredibly divisive time. As we were talking about that as a team, we thought, if Americans are committed to the rule of law at that high level, then they should really be thinking about that when they go to the polls. Maybe we need to help them with a kind of voter guide, a checklist of what the rule of law really means when you break it down in terms of constraints on executive power and whether a candidate is willing to accept those constraints.
We took our survey questions from the Rule of Law Index and transformed them into a checklist to create a nonpartisan tool that can support voter education on rule of law principles. We’d hope that individuals will use it when they consider the candidates they want to vote for, and that they even might ask candidates whether they will commit to these ideas, or how they would answer these questions. For example, will they accept the results of the election? I think that’s a really critical one, and one that I’m eager to hear citizens asking their candidates up and down the ballot.
