On Maui, we have an extraordinary situation where six new council members and the mayor will be taking office in less than a month. Even the current mayor, term-limited, was resoundingly defeated for his bid to return to the council. For this reason, the outgoing council should commit to refraining from voting on any substantive policy measures for the remaining three weeks of their term – leaving those decisions to the next council and mayor who have a new mandate to decide those policy choices.
Harvard government professors Steven Levitsky and Daniel Ziblatt have argued in How Democracies Die that since the end of the Cold War, most democracies have failed not because of generals and military coups but by elected governments, citing examples such as Venezuela, Hungary, the Philippines, Russia, and Turkey.
A classic coup d’etat like Pinochet’s Chile or Suharto’s Indonesia is immediately seen by all. The constitution is suspended and the democratically elected president is exiled or murdered. But under this new subversion of democracy, there are no tanks in the streets. Authoritarian efforts to subvert democracy are incremental and are “legal” in the sense that they are approved by a legislature or accepted by the courts.
Levitsky and Ziblatt argue that two norms have preserved America’s checks and balances: mutual toleration and institutional forbearance. That is, politicians accept one another as legitimate rivals and exercise restraint in deploying institutional prerogatives. They argue that these norms have protected American democracy for most of the 20th century.
Unfortunately, we have seen recently a trend in both American and Maui politics where some politicians denigrate their critics and political rivals and where one political faction has used their temporary control of institutions for maximum factional advantage.
Across the country, partisan gerrymandering has skewed the composition of legislatures so that they purposefully represent a partisan minority and do not reflect any majority. One such legislature in Wisconsin is now seeking to limit the powers of the incoming governor because he isn’t part of the legislative majority’s political party – all in the twilight of its lame-duck session.
The period of time between the election and the seating of the new council was designed to allow the election canvassers sufficient time to certify the results of the election and to allow courts to resolve with finality any challenge to those results so that no election dispute could mar the legitimacy of a new council. It was not intended as a period to rush through major policy decisions on the way out of office.
As technology allowed election results to be determined more quickly, even the US Constitution was updated by the 20th Amendment to advance the seating of the new Congress from March to January and to limit lame duck sessions. The current Maui County Council should leave a legacy of protecting democratic norms by accepting that a different council has been given a fresh mandate and refrain from rushing through substantive policy changes in the remaining weeks of their term.
The choice is the future of our democracy. We all must insist on mutual toleration of our political opponents. Our current council must also exercise restraint in its institutional prerogative or accept a role in history as the harbinger of eroding democratic norms in Maui County.
Lance D. Collins, Ph.D., is an attorney in private practice and teaches the Legal Clerk certificate course at University of Hawai‘i Maui College. He is the compiler and indexer of the 17-volume Proceedings of the Charter Commissions of the County of Maui, 1964-2012.