Kim Davis, a county clerk in rural north Kentucky, now sits in jail, ordered there by a federal judge for refusing to grant marriage licenses to gay couples. She is allowed to leave once she agrees to follow United States law and approve the marriages. This is unlikely. Before her court appearance, Ms Davis said, “It is not a light issue for me. It is a Heaven or Hell decision.”
The United States justice system has worked. Someone broke the law and has gone to jail. But in this case the justice system’s success papers over a problem with America’s democracy. The lawbreaker in question was elected to her job and remains, even in jail, the lawful clerk of Rowan County.
Elected officials in apolitical roles dot state governments across America. Like county clerks, state judges and sheriffs often must campaign for their jobs. That these positions are elected contradicts their purpose. They exist to execute policy, not to create it. In any other setting, applicants would be judged on ability by a small committee, not on their promises to voters.
This system of government undermines itself. Allowing small groups of voters to decide who gets a job encourages those officials, once elected, to bend national rules in favour of local preferences. And, when a federal authority is required to step in, it forces further distance between communities and the national government, which cannot be afforded in America’s increasingly polarised political environment. Structurally, the system creates conflict.
Other models, like the United Kingdom’s, give an instructive contrast. British voters are only asked to vote for Members of Parliament, Mayors, and other positions with political influence. Keeping a wall between politics and civil service-like posts enables smoother enforcement of national laws by eliminating incentives to defy them.
State autonomy is among the most important principles protected by the American Constitution, but that arrangement only works if states are capable of policing themselves. Generally, there are only two ways to remove an elected official: impeachment or the next election cycle. In conservative states like Kentucky, where almost 60 per cent of legislators are Republican and likely to agree with Ms Davis, impeachment is nearly impossible, even if the official has violated a citizen’s national rights.
This leaves it up to the voters to protect the rule of law. That those same voters elected the official in the first place suggests the cycle will continue.