Case Study: United States of America

Over the last five years, while most countries in the Americas have continued to perform in the mid-range across the four main categories of democracy (Figure 4.1), the region has experienced greater democratic contraction than expansion. The number of low-performing countries increased, and more countries experienced significant declines than experienced advances in Representation, Rights, Rule of Law and Participation (six countries declined and only three advanced).

In recent years, elected leaders in the Americas have eroded democracy, with state institutions being used to legitimize restrictions on rights, civic space and electoral competition. In a region where civic engagement has been critical to enact change, restrictions on civil society participation are particularly worrying. This is the case in countries, such as Guatemala and El Salvador, where the democratic performance is mostly mid-range and low.

As shown in Figure 4.2, the breadth of declines in El Salvador and Guatemala have a particular impact on the work of countervailing institutions, which can be evidenced by executive harassment and prosecution of anti-corruption officials, media and civil society (Maldonado 2023; El País 2023a; OHCHR 2023a). Most recently, decisions by Guatemalan courts and prosecutors prior to and following the presidential race’s first-round electoral results were criticized by experts as unwarranted and possible electoral interference (Abbott 2023a, 2023b).

Representation

Most countries in the Americas score strongly in Representation, with 13 countries featuring among the top 50 in the world. Chile (ranked at 4), Uruguay (9) and Costa Rica (13) rank in the top 20 globally. In the last five years, however, only Ecuador (53) has seen advances in its Representation scores. Nevertheless, political violence, accusations of corruption and the president’s recent dissolution of Congress will likely impact Ecuador’s score in the years to come (Mella 2023; Rico 2023).

El Salvador (95), Guyana (87) and Haiti (157) have experienced significant declines in Representation, with the first dropping six places in the rankings in one year. Declines in Credible Elections have also occurred in high-performing countries that rank in the top 50 of Representation, such as Brazil (45) and Costa Rica (13).

In the case of Brazil, although electoral authorities proved resilient and provided certainty during the 2022 general elections, a contentious campaign and toxic polarization culminated in riotous protests in January 2023. Supporters of defeated President Jair Bolsonaro claimed election fraud, arguably because of their candidate’s refusal to concede (Nicas 2023a) (see also the case study on Brazil).

The introduction of the so-called ‘Plan B’ electoral reform of Mexican President Andrés Manuel López Obrador—which, among other issues, would have cut funding for the national electoral body—has also tested the resilience of CIs and their role as guarantors of credible elections. The country’s Supreme Court struck it down due to significant irregularities during the legislative process (Raziel 2023).

In the USA, reports of harassment of election officials in the weeks prior to the mid-term elections point to the risks that polarized campaigns can bring (see also the case study on the USA).

Peru, despite its relatively stable scores, has suffered a crisis of representation and political parties, with the attempted self-coup by former President Pedro Castillo a standout. Public disapproval rates of both the government (at 80 per cent) and parliament (91 per cent) (IEP 2023) are extremely high, as is the public perception that the country is not governed for the benefit of citizens (86 per cent) (Latinobarómetro 2021). Overall, 91 per cent of people are not satisfied with their democracy in Peru (Latinobarómetro 2023).

In the Americas, weariness over continued economic volatility and corruption scandals have resulted in distrust of political elites and dissatisfaction with representative democratic institutions, particularly political parties and parliaments.

In 2023, only 48 per cent of people in Latin America said that they support democracy (Latinobarómetro 2023). Dissatisfaction has contributed to the rise of populist leaders, and fragmented and polarized political systems that aim to respond to discontent but have failed to maintain democracy (Casas-Zamora 2023; Latinobarómetro 2021).

Rights

As seen in Figures 4.3, 4.4 and 4.5, performance in the Rights category remains largely in the mid-range. In total, 15 out of the 27 countries in the Americas are in the mid-range, with half of the region performing below the global average.

Nicaragua is the only country to have experienced notable declines in the Rights category overall. This is due to President Daniel Ortega’s government cracking down on opposition and dissent, including retaliation against members of the Catholic Church and the media. The expulsion and arbitrary deprivation of nationality of hundreds of Nicaraguans highlights the extent of the human rights crisis in the country (OHCHR 2023d; Chamorro 2023), which is currently the lowest ranking country from the region in this category (ranked at 164).

Over the last five years, the most significant and widespread declines in the Rights category have occurred in Civil Liberties, including Freedom of Expression (six countries declined), Freedom of the Press (seven countries declined) and Freedom of Association and Assembly (five countries declined). The use of force against demonstrators in Cuba (Amnesty International 2022) and the harassment, intimidation and closure of news outlets and journalists in Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua (Méndez Dardón and Silva Ávalos 2022) exemplify this worrying trend.

Social Group Equality is another area where democratic contraction has been notable (Figure 4.6), as Latin America and the Caribbean continues to underperform in inequality measurements in comparison with the rest of the world (Arreaza Coll 2023).

In the last five years, seven countries experienced significant declines in Social Group Equality, including high performers such as the USA (ranked at 28) and Canada (23), although they continue to rank in the top 30 countries globally in Rights.

Declines in the USA in Social Group Equality can be explained by the impact of structural racism and discrimination on political equality, alongside an array of other issues including poverty and racial profiling (OHCHR 2023g; OHCHR 2022; OHCHR 2018b).

Only Costa Rica (20), the highest country from the region in the rankings for Rights (Figure 4.5), and Uruguay (38), currently the sixth highest ranked country from the Americas in Rights, perform well in Social Group Equality.

The inflation-led cost-of-living crisis in the region may have exacerbated inequality. This has further fostered discontent, as observed in increasing protests in Cuba over fuel and food shortages since last year, and the 2022 protests in Panama, the largest in decades (CIVICUS 2022). Malnutrition and food insecurity have particularly affected the Caribbean and South America; these hardships, along with rising interest rates and the devaluation of currencies in countries such as Colombia, Chile and Argentina will continue to challenge the region (Zovatto 2023).

In the last five years, Gender Equality overall remained stable and no countries experienced either significant declines or improvements. Most countries perform in the mid-range in Gender Equality (18 out of the 27 countries). However, in the USA recent state-level legislation and initiatives that weaken women’s rights and LGBTQIA+ rights could have an impact on the country’s performance in Gender Equality (New York Times 2023; ACLU 2023b) (see also the case study on the USA).

Rule of Law

Over the last five years, several countries in the Americas have seen volatility in their Rule of Law scores (Figure 4.7). Of the 27 countries in the region, 12 perform below the global average in this category.

On the plus side, the Dominican Republic (ranked at 86) has improved at the aggregate level since 2017. But the Rule of Law category and its associated factors have seen declines in countries with institutional shortcomings, such as El Salvador and Guatemala. The mid-range performers Peru and Brazil experienced declines in Absence of Corruption and Personal Integrity and Security, respectively. High performers also experienced some declines: Uruguay in Personal Integrity and Security, and Canada in Judicial Independence, but, as they are ranked at 24 and 15 respectively, they are still the top two performers from the region in the Rule of Law category rankings (Figure 4.8).

Insecurity remains a major challenge to the rule of law. Governments have failed to adequately address the root causes of increases in violent crime, and many have resorted to granting more power to the armed forces, increasing defence spending and expanding militarization in public security and migration, as well as administration of public services and parastatal entities (Manetto 2023; Barrientos 2023; Freeman and Rey 2023). This is the case in countries as diverse as Chile, Ecuador, El Salvador, Honduras, Mexico and Peru (Flores-Macias and Zarkin 2021; Amnesty International 2023).

Fatigue from long-standing problems of insecurity, corruption and economic exclusion, as well as polarizing rhetoric embraced by certain leaders, has contributed to some support for undemocratic governance at the expense of the rule of law, rights, and checks and balances. This approach has been followed by countries that face widespread security challenges.

El Salvador’s President Nayib Bukele remains one of the most popular Latin American leaders, despite the incarceration of tens of thousands of people and due process violations, undertaken as part of his government’s strategy against gangs (Kitroeff 2023).

Leaders from diverse political affiliations but with common security challenges, such as Presidents Xiomara Castro in Honduras, Dina Boluarte in Peru and Guillermo Lasso in Ecuador, as well as Prime Minister Andrew Holness in Jamaica, have also turned to deploying the military and to suspending rights while trying to counter crime or control migration (WOLA 2022; Cañizares 2023; Amnesty International 2023; Chappell and Ellsworth 2022). Such actions enable them to disregard the immediate oversight of formal CIs.

In the USA, Personal Integrity and Security has been affected by the increase in gun violence. Recent incidents, which include shootings that occurred because people mistakenly knocked on the wrong door or drove into the wrong driveway, mark a context in which ‘missteps’ can lead to death (Healy et al. 2023).

CIs have taken many forms throughout the continent. The history of military dictatorships, as well as the political instability deriving from social unrest, conflict and paramilitary confrontations, has influenced regional priorities (Perina 2012) such that several democratizing countries have used their constitutional frameworks to provide strong traditional checks and balances between branches of government, and other fourth-branch institutions (Uprimny 2011).

Throughout the continent, regional and national protections for independent media and civil society have been progressively implemented, in acknowledgement of their ability to foster social change and constrain government excesses. In this sense, traditional checks and balances and other formal and informal CIs have played a substantial role in supporting democracy in the region. However, in the last five years, performance in the GSoD factors relating to CIs has tilted more towards contraction than growth (Figure 4.9).

Supranational institutions as countervailing institutions

The inter-American human rights system has played an important role as a CI in the region by monitoring and promoting accountability for rights violations through its Commission, Court and rapporteurs. The regional Court’s rulings contributed to post-military transitional justice processes in Latin America, such as in the establishment of truth commissions after it was determined that amnesty laws were incompatible with the American Convention on Human Rights (Inter-American Court of Human Rights 2001, 2012; Inter-American Commission on Human Rights 2021). More recent examples include decisions on the incompatibility with the American Convention on Human Rights of mandatory death sentences in murder cases in Trinidad and Tobago, and the incompatibility with human rights of mandatory pre-trial detention in Mexico (Inter-American Court of Human Rights 2022, 2023). This makes the regional court a significant CI with the ability to ensure respect for rights.

Also at the regional level, the Organization of American States (OAS) has made important contributions to the promotion of democracy through electoral observation missions and the adoption of the Inter-American Democratic Charter. Enforceability issues and persistent non-compliance by some countries that have opted to withdraw from multilateral diplomacy, however, point to a need to strengthen regional capacity to facilitate more consistent and regular follow-up for countries that are experiencing challenges. This approach is preferable to the use of the Inter-American Democratic Charter as a last-ditch effort to respond to democratic breakdown (International IDEA 2021). Regional experts have also proposed measures to increase the Charter’s efficiency, such as enabling the judiciary and legislative branches or even EMBs and civil society to request the OAS measures or field visits, and strengthening the Charter as an early-warning tool (Zovatto 2021; Mariani 2011).

Domestic institutions as countervailing institutions

Parliaments

Legislatures in the Americas have had mixed success in exercising oversight. In the USA, the US House Select Committee to Investigate the January 6th Attack on the United States Capital (January 6th Committee) recommended that former President Donald Trump be charged with federal crimes for his participation in attempts to overturn the results of the 2020 presidential elections (Gardner, Helderman and Alemany 2022; January 6th Committee 2022). Although the findings were not binding on the Justice Department, the indictment in August 2023 of the former president on federal charges refers substantially to the Committee’s report and the evidence and testimony presented before it (Jurecic 2023). Partisan divide, and a shift in the composition of the US Congress after the 2022 mid-term elections, will also likely have an impact on the role of the legislature as a CI.

In Mexico, a Congress aligned mostly with the ruling party has paralysed the appointment of officials to oversight bodies that have been criticized by the executive (González 2023). It has also facilitated the fast-track adoption of legislative initiatives proposed by the president (Saldierna and Becerril 2023). Courts have had to act as a CI, considering accusations of legislative process violations or bills in opposition to the Constitution. This was the case with the decree by which the National Guard’s operation and administration had been placed under military command; it was invalidated after constitutional challenges (Suprema Corte de Justicia 2023).

The effectiveness of parliaments has also been weak (Figure 4.10), or come at the expense of stability, in contexts where the executive and parliament are led by opposing parties. This is particularly the case where the fragmentation of the political class and the proliferation of non-traditional parties requires leaders to either seek compromises to advance their priorities or risk confrontation (Freeman 2022).

In Peru, confrontation between branches of government included threats of impeachment even before former President Pedro Castillo took office (Del Aguila n.d.). The executive and legislative branches have distorted the use of balance of power mechanisms established in the Constitution, introducing high instability into the Peruvian political system and leading to a high turnover of leaders; in five years, the country has had six presidents. These mechanisms include provisions through which a presidential vacancy can be declared, on account of vaguely defined ‘moral incompetence’, and the executive can dissolve Congress if the legislature refuses approval of two proposals of councils of ministers.

Judiciaries

Courts have been somewhat more successful in keeping leaderships in check across the Americas, especially in countries where judicial independence is strong.

In Costa Rica, the judiciary determined that the government had indirectly violated the freedom of the press by ordering the closure of an entertainment centre belonging to the same corporation as a newspaper critical of President Rodrigo Chaves Robles, a decision that has an impact on freedom of speech and media integrity (Benavides-Santos 2022; Sociedad Interamericana de Prensa 2022).

Mexico’s top court has issued relevant rulings to halt initiatives that further military power (OHCHR 2023e), despite confrontational rhetoric from the executive. It also invalidated the legal electoral reform presented by the President and passed by a Congress in which the ruling party is in the majority (‘Plan B’), due to serious violations of the legislative process (Raziel 2023).

In the USA, upcoming federal and state courts’ consideration of criminal charges and civil claims against former President Trump demonstrate their ability to act as a CI with regard to high-ranking officials.

In Brazil, judicial oversight of the elections was critical to containing misinformation in the midst of a polarized presidential campaign, although not without criticism for possible overreach (Galarraga-Gortazar 2022; Nicas 2023b).

Conversely, in countries with low performance in Judicial Independence and Predictable Enforcement, as well as with subservient courts, judiciaries have been inefficient as CIs. In Nicaragua, the judiciary has been ‘weaponized’ to crack down on dissidence through reprisals against political opposition, critics and their families (OHCHR 2023c).

Fourth-branch institutions, national human rights institutions, EMBs and elections

Independent and regulatory CIs also play an important role in checking power. These include fourth-branch institutions, such as electoral commissions, national human rights institutions (NHRIs) and the press, and other informal CIs like CSOs and social movements. With varying degrees of autonomy and independence, NHRIs monitor compliance with human rights, keeping the executive branch of government in check. For example, Honduras’s NHRI monitors the government’s use of emergency powers to contain extortion.

EMBs have also played a major role in ensuring credible elections. Mexico’s INE stood its ground in defending its autonomy in the midst of a contentious electoral reform process, including by challenging the proposal’s constitutionality before the Supreme Court (INE 2023).

Elections have also proved to be effective CIs in the region by allowing citizens to express their dissatisfaction with ruling parties through the so-called vote of punishment. In democratic elections held in the last few years, the vast majority (14 out of 15) resulted in an opposition victory (Sahd, Zovatto and Rojas 2023). The frequent use of runoff elections in the region, in which the reversal of first-round results is not uncommon (Zovatto 2022), further points to the ability of citizens to check power and reconsider their political options, demonstrated through their voting. However, the efficiency of elections as a CI is directly related to a country’s performance in Representation.

A ‘super-cycle’ of presidential elections in Latin America, with the potential to reconfigure the region’s political landscape, has been in development since 2021 and will end in 2024 (Zovatto 2023). In 2023, Paraguay’s presidential election stood out, as the ruling party maintained power, a shift from a recent trend in Latin America where both anti-system candidates and the appeal of political alternation had gained traction (Romero Ballivián 2023).

However, some fourth-branch institutions have not been as successful in maintaining public trust. In Guatemala, the Supreme Electoral Tribunal (Tribunal Supremo Electoral, TSE), a body established with constitutional autonomy, has been criticized for applying unequal standards, to the detriment of the opposition, throughout the 2023 electoral process (WOLA 2023; DW 2023).

Civil society, social movements and the press

With regard to other informal CIs, in Barbados, CSOs were key to challenging discriminatory legislation that criminalized same-sex relations. Their activism resulted in a favourable High Court ruling that struck down such provisions (González Cabrera 2022). CSOs and other activists have spearheaded the push for reproductive rights throughout the continent (Belski 2022; ACLU 2023a). In Chile, the social movement that started in 2019 has been key to the constitutional process still under way (Montes 2022). In Mexico, demonstrations against the government’s proposals to change the electoral law through the ‘Plan B’ reform, signalled to political actors the public’s rejection of measures that could result in the weakening of the EMB. Further, journalism has helped to bring attention to questions of impartiality, prompting calls for an ethics code in the USA’s highest court (Kaplan, Elliott and Mierjeski 2023).

Formal domestic and supranational CIs have contributed to the maintenance of balance of power and relative stability in the Americas. Yet they have not acted alone in checking excesses of authority or demanding accountability. Cases where the success of formal CIs has only been partial or insufficient demonstrate the need to strengthen the region’s civic space through adequate legal and institutional frameworks.

The region has benefitted from the interplay between formal and fourth-branch institutions, and the future of democracy will depend partly on support for even more cross-institutional cooperation and dialogue.

In some countries of the Americas, geopolitical developments could affect compliance with the rule of law. Brazil’s renewed relations with Venezuela, despite the human rights and humanitarian crises in the latter, have been heavily criticized (Canineu and Ragozzino 2023), including by other countries in the region, such as Chile and Uruguay (BBC News Mundo 2023). International pressure is also key to ensuring that next year’s elections in Venezuela can be held in credible conditions. Russian aid in the form of military supplies to Nicaragua could further embolden the Central American country to keep up its stance of ignoring regional dialogue (Infobae 2023). In this sense, regional dialogue and diplomacy will be key to containing authoritarian gains.