In late August, the Trump Administration used emergency requests to alter the federal voting form used by overseas U.S. citizens, limiting how certain voters can request ballots. The changes include the elimination of a checkbox for U.S. citizens born abroad who have never lived in the country, which would prevent these voters from using federal ballots, despite the majority of states allowing it. This change came right before the mid-September deadline for states to send out ballots, and has now resulted in a lawsuit filed by the Democratic National Committee (DNC). By declaring it an “emergency,” the Pentagon circumvented the usual process for changing forms, which normally takes months and involves public feedback. The lawsuit filed by the DNC argues that this emergency was manufactured and that the administration acted unlawfully. The Pentagon argued that there was not enough time before the next federal election to modify the ballot through normal procedure, justifying the emergency. However, critics say that they “still don’t understand what constituted an emergency in this case.” 

The issue therefore is not just about the eligibility of a group of voters, but about the way in which election rules are established. The Pentagon’s use of an emergency to change the voting form has bypassed the ordinary system, which includes a public comment process, designed to keep the executive branch in check. In contrast to this, multiple states currently have lawsuits to take the contested checkbox off the ballot, demonstrating the formal democratic system where voting disputes are subject to judicial review and input, rather than unilateral decision-making by one branch of government. Democratic institutions depend on this system of checks and balances, and the dismissal of it presents concerns of democratic backsliding. The problem at hand is not just the eligibility to vote, but what institutions can democratically determine election rules and how that authority can be limited. 

This controversy can be understood through what Ozan Varol defines as “stealth authoritarianism,” which is the use of legal or similarly legitimate mechanisms to undermine democracy. The Trump administration’s use of emergency procedures is significant because it is a legal mechanism, meaning its use can appear to be a legitimate administrative action. However, the dispute over the circumstances of the emergency raises questions about the true legitimacy of the order, and how legal authority can be used in ways that undermine democracy. This illustrates Varol’s argument that stealth authoritarianism can be hard to pinpoint due to the unclear line between legitimate applications of legal authority and abuses of it. In this case, it is not a question of the constitutional legality of the emergency procedure, but whether its use undermines the democratic institutions designed to protect citizens and limit unilateral power. 

The controversy also raises the issue of executive aggrandizement, which is a form of contemporary democratic backsliding identified by Nancy Bermeo. Executive aggrandizement is when the executive, often through official legal channels, expands their own power at the expense of institutions designed to limit it. By bypassing the normal procedure designed to keep the executive branch from unilaterally altering election laws, the concern is raised that the executive has reduced a constraint on its own power. 

In addition to the importance of the procedure used to alter election laws, this controversy matters because it concerns the political participation of citizens in democracy. Voting is the primary way that citizens politically participate, and changing election laws can be particularly consequential for participation. Bermeo identifies the strategic manipulation of elections as another trend of democratic backsliding, demonstrating that democratic erosion does not just mean the elimination of elections themselves. Democratic institutions can be kept intact while the laws governing political participation are changed. The current overseas voting controversy demonstrates this, as the federal government has not eliminated the election, but instead changed a rule governing voter eligibility. 

Ultimately, this incident demonstrates how democratic backsliding can be difficult to recognize. A seemingly small government action can weaken the procedures and institutional constraints that protect political participation, gradually eroding the safeguards that democratic institutions put in place.