Last year, while organizing a global democracy forum in Mexico, a member of that country’s national electoral court requested I add a speaker to our program: an American judge who was an expert in how elections work.

First, I contacted election lawyers, who told me they knew of no judges with such expertise. Then I called judges, eight leading U.S. jurists in all. Among this diverse group of judges were Republicans and Democrats, those who work at the state level and the federal level, in district courts and appellate courts.

Seven of the eight judges said they didn’t know of any U.S. judge who was an expert in elections either. They suggested that I instead invite a leading scholar of American election law—Richard Hasen of UCLA School of Law.

The eighth judge suggested I try a friend and judge on the East Coast who had handled some election cases. When I called up this jurist, he replied: “I’m no election expert. But hey, aren’t you in L.A.? Don’t you know Rick Hasen?”

My search turned out to be an endorsement of the brilliant Professor Hasen, whose new book A Real Right to Vote is well worth your time. But it was more than that, too. It was a lesson in just how clueless American judges are about politics and elections.

To redress that problem, California and the U.S. should follow the lead of other countries in the Western hemisphere and establish a separate, specialized court system for handling all election-related cases.

A dedicated election tribunal would produce judges with the deep knowledge that is increasingly essential as politically polarized Americans contest elections more frequently in the courts. Indeed, one prominent law scholar—yep, Hasen—has documented that election litigation nearly tripled since the 1990s.

But, as my search showed, election law expertise is hard to come by. That’s partly because most judges went to law school when the issue was not such a big concern, and partly because judges, seeking to avoid politics, rarely come to understand it on the job.

This means, unfortunately, that American elections are shaped by a judiciary with little knowledge of, or feel for, electoral politics. And it is precisely why the 2024 election season is a mess.

You can see judicial cluelessness about elections at work in all four ongoing criminal cases against Donald Trump. The former president and his savvy team have made mincemeat of judges, attacking them to score points with the Republican base and outmaneuvering them to create so many delays that it’s unlikely any case will go to trial before the November election.

A specialized court for elections also could save the U.S. Supreme Court from itself. The court’s justices are losing credibility because of perceived political bias in their decisions and public appearances. Most recently, the court’s conservative majority all but endorsed Trump’s delay strategy by agreeing to hear the former president’s plainly phony claim that former presidents are “absolutely” immune from this country’s laws.

But the Supreme Court’s bigger problem is that it is a citadel of election ignorance. Not one justice has ever been elected to political office, much less administered an election. No justice has a strong scholarly background in election law. Unsurprisingly, then, in their decisions, the Court consistently misunderstands the basics of our political and electoral systems.

Take its recent decision overturning Colorado’s move to ban Trump from the ballot because of his actions to overturn the 2020 election by corruption and violence. The decision was unanimous but also egregious. The justices both misread the plain text of the 14th Amendment, which bars insurrectionists from office and failed to understand basic democratic principles.

They took the bizarre, up-is-down position that states should not get to determine who gets to be on the ballot and serve as president—even though our entire electoral system is state-based. There are no national elections in this country; our presidential contests are really just 50 separate state elections.

It should frighten us that these nine democracy dimwits may well decide the outcome of a presidential election that promises to be close.

Many countries around the world have moved to redress this problem of judges’ lack of expertise and sophistication in contentious elections. Latin America, which has a long history of bitterly contested elections like the one we in the U.S. are experiencing now, has led the charge in trying to develop more judicial expertise and independence on election cases.

More than half of Latin American countries have established specialized electoral courts to handle election disputes. By now only three countries in the Americas—Argentina, Venezuela, and the U.S.—still give the decision-making power to their regular Supreme Court.

The electoral courts are not a panacea. Mexico’s has been dogged recently by internal conflict between its justices. But as Victor Hernández-Huerta, a Wake Forest University scholar of comparative and Latin American politics, writes in Election Law Journal, specialized courts develop expertise over time. And they have numerous benefits. Separate election courts can protect the reputation and independence of the regular court system by shielding it from the stains and strains of tackling controversial electoral questions.

Dedicated election judges also are accustomed to ruling quickly and efficiently under election time pressure, unlike the American judges in Trump’s cases, who keep delaying things to deal with unfamiliar questions.

Specialized electoral courts have produced particularly important successes when candidates or parties sought to overturn election results.

In Guatemala, in the face of threats of retaliation and prosecution, the country’s Supreme Electoral Tribunal intervened to keep Bernardo Arévalo, of the anti-corruption party Movimiento Semilla, on the 2023 presidential ballot when the ruling powers sought to disqualify him on dubious grounds. As a result, Arévalo won the election and managed to take office in January despite attempts at sabotage.

The Brazilian Electoral Court—a system that includes the national Tribunal Superior Eleitoral, along with regional electoral courts and boards—is widely considered the world’s best, because of its structural independence and its record. The court proved its mettle in 2022 when President Jair Bolsonaro made unfounded allegations of election fraud and sought to overturn the result. The electoral judges not only upheld the election but also held Bolsonaro accountable for “abuse of authority” by banning him from running for public office for eight years.

Last spring, I ended up taking all that judicial advice about Hasen and having him speak at the Mexico conference about how courts handle tricky questions of democracy. When I caught up with him recently, I asked whether he agreed with me that the U.S. needs its own separate electoral court. He said that I was “putting the cart before the horse.”

He pointed out that the countries with such courts also have national elections (unlike our state-based system) and national election administrative bodies. When I noted that the U.S. judicial branch does have special judges and courts on bankruptcy and immigration, Hasen pointed out that each of those areas has a federal body of law associated with it. That’s not yet true of elections.

“You’re asking me a graduate-level question,” he said of the idea of a specialized electoral court, “when we’re not even in kindergarten yet.”

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Maya farmers in the area, who rely on rainfall to nourish crops, offer up different prayers. For over 4,000 years, Maya families, commoner and wealthy, have relied on water from the skies. Without rain, crops are decimated, river trade ceases, and drinking supplies diminish. Extended dry seasons create a massive tinderbox where one lightning strike can destroy everything in a blazing inferno.

In my anthropological work in Central America, I have spent nearly 20 years looking at the role that water played in Maya history. Water and environmental crises that arose in the region more than a thousand years ago shed light on key parts of the Maya belief system, which offers some useful perspectives on responding to climate change in the 21st century.

The Maya managed to build an early civilization that farmed beans, corn, and squash—sometimes using advanced techniques like terracing and raised fields. More famously, during the Classic Period from the third to the late ninth century in the southern Maya lowlands (comprising present-day northern Guatemala, Belize, and southeastern Mexico), the Maya built hundreds of urban centers. Each center had a king, as well as royal temples and elaborate tombs, palaces, inscribed monuments, and large reservoir systems.

The most powerful kings emerged and thrived in areas with large amounts of fertile soils for agriculture. Such places didn’t necessarily have fresh water nearby. In fact, the two largest Maya centers with the most powerful kings, Tikal in Guatemala and Calakmul in Mexico, emerged in areas without lakes or rivers. But successful Maya royals had to have access to water to retain control.

As well as being sources of water, these centers became the sites of community interaction, including markets, ballgames, and ceremonies that took place in large open areas surrounded by temples and the royal palace. The region had a fantastic variety of plant and animal life, which was widely scattered, as were farmsteads and subjects. Reservoirs brought people together, fulfilling both agricultural and political needs.

While lots of rain falls during the seven-month rainy season, much of it seeps into the porous limestone bedrock. In areas without lakes or rivers, the Maya devised means to divert and contain water beginning over 2,000 years ago, eventually resulting in the development of intricate catchment systems centered on large reservoirs. From the third to the late ninth century, classic Maya kings depended on these reservoirs to attract subjects to urban centers during the five-month dry season between February and June.

Quarrying the reservoirs also provided stone to build monumental temples, palaces, and ball courts next to them, allowing kings to directly control their access. The Maya accomplished all of this with only stone tools, human labor, and ingenuity.

Across millennia, the Maya also lived their worldview, a cosmology of conservation in which humans constituted one of many elements along with animals, birds, trees, clouds, stone, and earth. Humans were not seen as superior to other life forms or elements in this system, and they had a responsibility to maintain the world they shared.

This relationship is expressed even today in the nature of current Mayan languages. Among the Tojolab’al Maya of Chiapas, Mexico, for instance, their linguistic structure de-emphasizes the role of the individual as an actor and instead emphasizes a collective “we.” That “we” includes clouds, plants, rivers, mountains, and animals. They do not have terms for “religion” nor “nature,” as these concepts are already integrated into their daily interactions with the world.

This cosmology and the Maya transformation into many kingdoms worked in sync for centuries. As the population grew, the Maya expanded their water systems, which became inextricably linked to urban layout—dams, walkways, and channels—and royal power. Reservoirs supplied water to tens of thousands of people in larger centers for nearly a thousand years.

Yet the more that Maya kings relied on increasingly complex water systems to support their political economy, the more vulnerable they and their subjects became to disruptions. And disruptions did come, in the form of several multiyear droughts beginning early in the ninth century.

Maya farmers, who had contributed their labor, services, and goods for access to water during annual droughts, ceased to do so when kings failed them as water managers. Gods and ancestors were believed to have deserted royalty, which had not maintained beneficial long-term relations with the environment.

An urban diaspora resulted, as hundreds of thousands of Maya abandoned hundreds of centers and kings in the dry southern lowlands. They never returned.

We know the long-term Maya cosmology and the land management strategies that accompanied it worked on a practical level, because Maya culture did not die out with the demise of kingship. Maya farmers emigrated in all directions and started new lives near lakes, rivers, and coastal areas. Temples and palaces were surrendered, eventually becoming overgrown and swallowed back into the rainforest, while existing political structures vanished. Kings disappeared for good in the southern lowlands, as people carried their languages, their cosmology, and their agricultural methods to new areas, where they have farmed the land sustainably for more than a thousand years post-collapse. Millions of Maya currently live in Central America and elsewhere.

The Maya paid attention to diversification in ways that might be familiar to us today. For instance, we are taught to diversify our financial portfolios to avoid risk, as well as our diets and exercise regimens to preserve our health. The Maya had a similar concept, except that it was applied on a daily basis to maintaining universal balance.

One way of maintaining balance was through forest management. Hundreds of items from tropical forests were used for food, medicine, construction materials, and tools. As one student of mine said several years ago when one of my Maya field assistants was showing her uses of various trees and bushes, “The jungle is like a refrigerator.”

The Maya plant their home gardens and fields to mimic the diversity seen in the jungle, which likewise serves as a risk management strategy. The Maya also limited their interaction with the environment: They did not hunt, cull, or farm in ‘sacred’ places, such as pilgrimage destinations located along ceremonial circuits. Consequently, flora and fauna flourished, which promoted biodiversity and conservation.

I work in one such area—Cara Blanca in central Belize. There, openings in the earth, such as caves and bodies of water, are considered portals to the otherworld where Chahk resides and people communicate with ancestors and gods via prayers and offerings. People lived near shallow Cara Blanca lakes, but only periodically visited cenotes (deep collapsed sinkholes fed by groundwater) to commune with gods and ancestors.

These pilgrimages increased in number and scale during the century-long period of droughts. For the first time, the Maya infringed on a sacred place. They built water temples and other ceremonial buildings. However, when conditions worsened as droughts wore on, they never built houses nor farmed there. Even then, their worldview emphasized maintaining a balance, sometimes at short-term expense to their own well-being.

The Maya cosmology of conservation is not often found in our industrial world, which embodies a worldview in which nature is divorced from culture, prioritizing humans over everything else in a manner that is becoming less sustainable each day. What the Maya learned, which we continue to struggle with today, is that ignoring long-term climate crises for political gain is short-sighted, and ultimately destructive to a political system. More centrally, maintaining an ecosystem is not merely the responsibility of a society’s leaders but requires sustainable practices—and sometimes sacrifices—from everyone.

Of course, the Maya made mistakes and overused resources at times. But they learned from their mistakes, repositioning their actions to avoid upsetting the balance of their world. Today, adopting and updating their approach would be a good start in the vital task of saving not only ourselves but our planet.

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The case is also an opportunity for Americans, who have generally failed to acknowledge our responsibilities for brutal Cold War-era repression in Central America, to reflect on a genocide in which the U.S. government was arguably complicit. Guatemala suffered one of the most brutal cases of government repression in the Western Hemisphere, a 34-year-long conflict whose goals were guided by U.S. foreign policy. The Guatemalan truth commission estimated that 200,000 people were killed, 50,000 of whom disappeared, while also concluding that the state committed genocide against the country’s indigenous peoples. Thousands of villages were razed, hundreds of massacres were committed, and torture, rape, and abuse were institutionalized through “scorched earth” policies that were most intense under Ríos Montt’s government.

While more than 90 percent of serious violations were committed by the state, Guatemalan courts have pursued only a handful of prosecutions. The case against Ríos Montt and co-defendant José Mauricio Rodriguez Sanchez, his former intelligence director (who was acquitted), represents both the first time the country has brought a case against high-ranking leaders and the first time it has indicted anyone for genocide.

The genocide charge, conviction, and subsequent annulment have polarized Guatemalan society. Many people, including representatives of indigenous groups and human rights advocates, see the case—which focused on specific abuses against the Ixil people, one of the country’s many indigenous groups—as the most significant challenge ever to Guatemala’s culture of impunity. It is both an official vindication of the value of decades of heroic struggles to document mass killings and a sign that society may finally be ready to address the criminal and moral responsibility for what is known in the country as “La Violencia.” Following the Constitutional Court’s annulment of the Rios Montt conviction, Guatemalan civil society instituted a nationwide campaign, “ ¡Sí hubo genocidio!”—“Yes, there was genocide!”

For those on the right—conservative politicians, retired military personnel, and the business elite—the court’s judgment is understood as a profound miscarriage of justice, the result of outside manipulation or pandering to the international community. Among these critics is Guatemala’s current president, himself a former general, who has denied that genocide was committed. “When I say that here in Guatemala there is no genocide, I say it from my experiences,” he said in an interview with CNN after the Ríos Montt ruling, referring to his deployment as an officer in the same region and at the same time reviewed by the court, and perhaps revealing a fear that the conviction of the former head of state might lead to further prosecutions against other former military leaders.

There are few legal concepts that carry the weight and power of the term genocide. The United Nations Special Rapporteur on the subject has called it “the ultimate crime and the gravest violation of human rights it is possible to commit.” The Genocide Convention, created in the wake of the devastation of World War II, was the first international human rights treaty of the postwar era. It entered into force in 1951, a full quarter century before the major conventions that define the foundation of international human rights law, and has been ratified by more than 140 states (including the United States, which has a generally poor record of accepting human rights treaties). Yet it is only in the last two decades—with the creation of various new courts such as the ad-hoc tribunals for Rwanda and the former Yugoslavia, the International Criminal Court, and the Iraq High Tribunal—that the commitments enshrined in the genocide convention have been put to practical use. The first international genocide conviction was not until 1998, a half-century after the convention was drafted, and the Ríos Montt case represents one of only a handful of genocide prosecutions.

The crime of genocide is defined in Article 2 of the Convention as the “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such” through one or more of five destructive acts. This definition is remarkably consistent throughout the world, with the language copied word for word in the various domestic and international bodies where it is used. But despite the widespread acceptance of the definition, each element presents intricate interpretive and evidentiary issues, and the infrequency with which the charge has been brought means that many ambiguities remain unresolved. How does one understand the meaning of “intent” and then prove that “intent” existed in a particular case? What level of violence is required to meet the definition of the destruction of a group “in part”? What sort of targeting must occur for the group to be identified “as such”? What proof is necessary for determining the existence of “a national, ethnical, racial, or religious group,” and how is membership in this group defined?

The evolving jurisprudence on genocide may provide guidance on these questions, but existing court decisions in one system have no necessary authority for cases processed in a different system. More significantly, the legal proof for a case of genocide often conflicts with popular, morally motivated understandings of the term. For example, the plain language of the Convention allows an individual to be found guilty of genocide without the death of a single individual if there is a clear policy of “forcibly transferring children of the group to another group.” Conversely, look to the case of Cambodia, popularly referenced as one of the most significant cases of genocide since the Holocaust, in which as many as 2 million people died under the terror of the Khmer Rouge in the 1970s. However, these mass killings, horrific as they clearly are, may not meet the definition of genocide because the vast majority of victims were from the same national, ethnic, and religious group as the perpetrators, but were targeted for political reasons. This has created a surprising outcome in current trials in the Extraordinary Chambers in the Courts of Cambodia, where charges of genocide only apply to specific subgroups of the vast victim population—the Cham, an ethnic minority, and Vietnamese, a national group, rather than applying the crime to the brutal mass slaughter of millions—formalizing a stark division between the specific legal application of the term and the popular understanding of its descriptive power.

The debate over the Ríos Montt case also highlights the tensions between genocide’s status as a complex crime whose meaning in practice is steadily evolving and its longstanding status as the most significant mode of moral condemnation for atrocities. Those who deny the genocide claim against General Ríos Montt assert that government repression, severe as it may have been, was part of a legitimate counter-insurgency effort where the lines between civilians and combatants were blurred. They argue that the state’s intent was not to target the Ixil people for destruction but to stamp out a leftist insurgency rooted in the countryside and in areas with high concentrations of indigenous people. Those supporting the genocide claim draw attention to the targeted assassination of indigenous leaders, mass resettlement programs, and the identification of the Ixil, in general, as enemies of the state. They point to the killing of thousands of unarmed indigenous villagers—coupled with systematic rape and torture and the targeting of women, children, infants, and the elderly—and assert that such actions define the state as responsible for genocide.

As heated, threatening, and potentially dangerous as discussion over these issues may be, the Ríos Montt conviction has forced Guatemala to confront its past in a way that no other action has done, not even the 1999 truth commission report that made similar claims. And herein lies the complex power of the term genocide: Its profound condemnatory nature through specific prosecutions demands a response and requires an engagement with the substance of the claim in a way that is unique among serious crimes.

Only a few years ago, defenders of the military’s action during the country’s civil war routinely denied that massacres, disappearances, torture, rape, and other human rights violations were ever committed by the state. Yet now, confronted with the public airing of detailed records of violence committed under the Ríos Montt regime, there are few critics left who dispute some level of official responsibility for brutal atrocities. Even those denying the genocide charge have barely criticized Ríos Montt’s conviction for “crimes against humanity,” which refers to severe acts of violence committed in a widespread and systematic manner and was one of the core crimes developed in the Nuremburg prosecutions against high-ranking Nazi leaders.

The ongoing legal procedures in the Ríos Montt case, from the recent annulment of the judgment to whatever comes next, is part of a process in Guatemala and around the world through which we are all learning about the meaning of genocide. This involves finding a balance between the specificity of the term’s technical application and its broad social and moral authority, with an understanding that both are core elements of what genocide is and must be.

Regardless of whether the conviction is sustained (or whether Ríos Montt, who is 86, passes away before the process reaches completion), two irreversible feats have been accomplished by this case. The Guatemalan leader was convicted of genocide by a legitimate court respecting due process protections. And, by focusing on the core issue at stake—genocide—the case has forced Guatemalan society to reckon more seriously with its brutal, tragic history, opening the space for a debate has served the goals of truth and accountability.

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When I was a child, my uncle would put presents in tiny jewelry boxes and hang them from the Christmas tree. Come midnight on the 25th (that’s when presents are opened among us Guatemalans), my sisters and I would search through the branches for boxes with our names on them to claim our prizes. Our cousins would come over and eat Guatemalan tamales and dance to the radio. We’d try on our sweaters and play with our toys and frown at our socks. We’d stay up until two in the morning and fall asleep in the living room. Then we’d wake up to eat more tamales with my mother’s ponche, a warm drink made out of pineapple, apples, coconut, prunes, raisins, and apricots.

Later, my dad failed to make the mortgage payments on our little white house in the city of Bell. When I was eight, we moved into a cockroach-infested rental on the other side of town. Christmas, like everything else, got a little gloomier. We don’t have cousins over anymore. (We had a falling out with them for reasons that were stupid and frivolous.) Siblings grew up and moved out. My parents got divorced.

My mother, my sister, and I still form an assembly line every year to wrap and cook Guatemalan tamales made out of corn dough, red chiles, prunes, raisins, green olives, almonds, and chicken with a spicy red sauce called recado. My mom still throws all the fruit and love together to make the ponche. But in recent years we haven’t really been able to make it to midnight. Some years, I’m the only one left awake to greet the stroke of 12. There are years when, of the four kids, it’s just my sister and me. We unwrap our presents, eat all the tamales, drink all the ponche–and there: we did Christmas. My mom falls asleep. My uncle doesn’t hang jewelry boxes from the tree anymore.

Maybe that’s why gift giving started to take over. Hanging out together wasn’t going to happen like it used to anymore. That just left the stuff. One year, when I asked for a bicycle for Christmas, my uncle could only give me a chain with a gold bicycle pendant hanging from it. I cherish it today, but, at the time, I was ungrateful. I wanted a bicycle, one I could ride.

I’ve sometimes wondered if Christmas materialism is a lot worse than it used to be, but I’m not sure it is. I recently asked my friend’s mother, Frances Sandberg, what Christmas was like when she was a girl. Frances grew up in Los Angeles in the 1950s and ’60s. “They had advertisements on TV, stores would have things for you to come in and buy stuff,” Frances told me. “I don’t think it’s a whole lot different.”

The only thing Frances mentioned having changed were the department stores that used to put on displays. “They would really decorate the windows downtown,” she said. “I looked forward to doing that, to go look at the windows. They usually had little trains that would run around or something.”

But maybe, I thought, Christmas as we know it was an American problem. This is a consumer society, after all. Erik Alcaraz, my co-worker over at the Los Angeles County Bicycle Coalition, grew up in Chihuahua, Mexico in the 1960s. And, yes, Christmas was a bit different there, he told me. For instance, there was no Santa Claus, and families would set up a nativity scene, not a Christmas tree. But that didn’t mean peace on earth prevailed. Sometimes, around Christmastime, factory workers would receive their bonus, called aguinaldo, in a cash envelope on payday. Vendors would be waiting outside with trinkets and toys, and workers would sometimes spend all their bonus money on the spot. Then, three blocks later, realizing that they’d probably overpaid, workers would get buyers’ remorse and turn around to demand their money back. Sometimes, the military had to swoop in and prevent vendors and workers from killing each other–let alone the Christmas spirit.

Then foreign traditions started to seep in. “There was no Santa Claus until the ’70s,” Erik recalled. “That’s when that influence of Santa Claus and the Christmas tree started coming. I remember in the ’60s we’d only put up the nativity, and the ’70s were when we started putting up a Christmas tree next to the nativity.”

“Navidad sucks, vale madre,” Erik said, remembering the year when he couldn’t buy his 11-year-old son the Walkman that he’d wanted. “When you have kids you love them so much, and you can’t explain why. You don’t want them to go through what you went through.”

When I got back from my first Christmas as a college student, some friends of mine in a liberal social-activisty group fell into a conversation about what their favorite presents were. They were talking about things like rare coins and trips to Thailand. I talked about foot cream. Don’t get me wrong: I loved my foot cream. My mother had taken the trouble to get me something she knew I would appreciate. But I didn’t like the look on my wealthier friends’ faces when I shared this with them.

“If I don’t have money for gifts, I don’t give any,” my mother told me when I asked her for her thoughts on Christmastime pressures. “The focus of Christmas for me is to be with people.”

That’s true. Amid all the housing instability and family drama, tamales and ponche were always on the dinner table. No matter what, my mother hauled herself to the grocery store every year to buy stacks of banana leaves, aluminum foil, corn dough, chicken, spices, and fruit. She still does. Then she’ll put it all in a huge pot over the kitchen stove it, mixing it with a huge wooden spoon that she threatens to use on us if we don’t behave. It’s because of my mother that I still have a connection to my family back in Guatemala and my family back in time.

So this year, instead of running around aimlessly at a mall trying to find some stupid $20 thing for my sister or my brother or my uncle or my cousin, I’m going to go with my mother to the grocery store. I’m going to learn how to make Christmas into what it’s supposed to be about: tradition, family, and love.

I’m also going to try to ignore how my mother told me she’d like a computer, an MP3 player, a 52-inch plasma TV, a radio she can use while jogging, and a smartphone. After all, she was joking. I think.

Brenda Yancor is an intern at Zócalo Public Square.

*Photo courtesy of julio.garciah.

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