A common topic of political commentary in recent weeks—indeed, ever since the election of President Trump—has been the threat that foreign hacking poses to our democracy.  Notably, there have been substantial fears, evidenced by leaders within the intelligence community at home and abroad, that Russia and perhaps others tried to sway the election.  The threat has not just been here in the US, either.  The election of President Macron, too, was mired in the threat of Russian cyber-hacking.  

There is an obvious issue that pertains to consent in the context of cyber-hacking and it worth our while to pause and consider the issue.  If foreign powers are meddling in our democratic machinery and perverting the exercise of democratic franchise by making our votes matter less, this has knock-on effects for the integrity of the consent that underpins the election of elected officials.  In light of this, and notwithstanding wherever our political allegiances may lie, it is incumbent on the electorate and the government to address the allegations in way that clears the air and dissipates concerns that our elected officials may be governing with less than our full consent.

But what exactly is the connection between consent and elections?  It is perhaps obvious that our elected officials rule by the consent of the governed, and that consent is advanced and held in trust through elections. Should the elections, or rather the integrity of the elections, be compromised by, say, cyber hacking from abroad, then the ties that bind the people and the elected officials is likewise compromised. 

One may ask, why any of this should matter if our candidate of choice is elected to office. The obvious sense in which it matters is that the entire electorate has an interest in sustaining the integrity of elections—that they ought to be free, fair, and unobstructed—for otherwise our claims that our government rules by the consent of the people will only ever be lukewarm.  To put it another way, it would be the case that the government rules with the consent of just some people.  

Is this problematic?  More bluntly, is it not always the case anyway?  Is it not that the losing side in any election is likely to claim that the winning candidate does not have their consent?  Other things being equal, the answer is an unequivocal no.  The exercise of franchise in a democracy depends for its effect on the consent of the losing side to abide and respect the results of a procedure to which they all agreed.  If they had not agreed, they would not have participated.  At least, that is the nature of implied consent.  

It is not, moreover, that we are prepared to vote but that we only respect or are bound by the outcome when it resolves in our favour. That would be a primitive kind of democracy whose electoral conflicts would readily descend into civil war.  No.  The very point of an election is that its participants, other things being equal, consent to its outcome before they are made aware of it. It is a form of implied contract in elections that in participating in its procedures, we offer consent to its outcomes. It is emphatically not the case that we render consent only when we win. That’s not a democracy, it’s a kleptocracy.  

And yet a lot hangs on the phrase other things being equal in the idea that the point of an election is that we consent to its outcome before we know what it is.  The ‘other things being equal’ is what lawyers like to call the ceteris paribus clauses of the law of contract.  In the context of an election, it just means that, if everything else is as it should be, then it is the case that we offer our consent to the outcome of the election.

Yet, for one thing, the threat of fraud—should it be sufficiently credible—is sufficient grounds to reserve consent (rather than withdraw it entirely, for instance). And here we come full circle. There is an obvious case today that the Trump Administration is hounded—wrongly or rightly—by allegations that foreign cyber-hacking undermined the integrity of the election that brought President Trump to the Oval Office.  It is no wonder that the allegations are vehemently denied by the election’s victors, for otherwise that would undermine the entire legitimacy of the elections by, amongst other things, rupturing or at the very least straining the bonds of consent between the people and the government. 

What is to be done?  The short answer is straightforward.  The investigations that are being conducted in Washington ought to be given the free rein they need to clarify and shut down the severe irritations that are caused by the allegations that the cyber-hacking had something to do with President Trump’s election.  The way to do this is to ensure that the investigations are non-partisan, independent, and utterly free.  We’ll all gain from it.