It’s been widely debated, especially in recent years, whether courts should be determining a candidate’s eligibility for the ballot. Unsurprisingly, one of the most divisive voices in this argument has been the Colorado court’s decision to remove a candidate from the ballot – a verdict some have dubbed as “undemocratic.” However, asMark Herrmann argues, the key issue isn’t democracy but the rampant spread of misinformation and falsehoods by political figures and entities during both election campaigns and standard operation.
Take Fox News and the Dominion Voting Systems debacle, for instance, where the network wrongly reported that the voting system had been rigged during the 2020 presidential election. This falsehood was only revealed and corrected through a defamation lawsuit initiated by Dominion. Similarly, when Giuliani falsely claimed that Georgia election workers stole Trump votes during the same election, the truth only came to light when he was taken to court and fined.
Herrmann, however, draws attention to the critical role of courts in reducing lies, given the stringent rules of evidence, procedure, and perjury in place. As he points out, while people lie routinely without any form of checks and balances, under oath, they lie less often due to the potential penalties they face.
This leads us back to the original question – is the Colorado court’s decision undemocratic? According to Herrmann, the issue lies not in the lack of democracy but in the unchallenged lies of politicians and the consequences of these deceptions on the voters. As recent events have shown, people in court are less inclined to lie, even admitting to their fabrications and apologizing for them.
So perhaps we might indeed be better off if a nondemocratic institution, like a court system, were to scrutinize our presidential choices through enforcing sworn testimonies, subjecting testimonies to cross-examination, and ensuring prompt rebuttal. However, Herrmann concedes that although he finds this situation far from ideal, the real issue lies in the constant political dishonesty that influences our voting decisions.
Mark Herrmann is a former law firm partner and now serves as deputy general counsel at a major international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy.