Bryan H. Wildenthal, Professor of Law Emeritus at Thomas Jefferson School of Law in San Diego and Visiting Professor at University of San Diego School of Law (Spring 2021) discusses the impact of the recent election disputes on democracy and the rule of law...
It is tempting to laugh off the claims about election fraud by President Trump and his Republican followers. Even some Trumpian Republicans have tried, like Georgia Secretary of State Brad Raffensperger. He dismissed as “laughable” the effort by Republican Senators David Perdue and Kelly Loeffler to force him out of office because, in their chilling words, he “failed to deliver” election results they found acceptable.
On November 17, two local Republican officials in Michigan tried to disenfranchise hundreds of thousands of voters in Wayne County (containing Detroit). This is part of a longstanding Republican pattern of questioning votes cast by African Americans. According to The New York Times, one official “was willing to certify every municipality in the county except Detroit, even though some cities, like the largely white Livonia, had worse irregularities.” A “senior advisor” to President-elect Joe Biden “dismissed the trouble” as “one in a series of stunts” by Trump supporters.
The Trumpian election narrative is ludicrously dishonest — truly Orwellian. “Count every legal vote” goes the slickly crafted slogan, falsely implying “illegal” votes never proven. But Trump’s unfiltered social media ventings were more revealing. Two days after the election, he tweeted “STOP THE COUNT!” At that moment, Joe Biden was leading in states with a majority of 270 Electoral College votes, so “stopping the count” would merely have guaranteed Trump’s defeat.
President-elect Biden now leads by 306 to 232 in the Electoral College and more than 6 million in the popular vote. Trump complains the election is being stolen, but he is the one trying to steal it from Biden. Trump and his supporters are demanding that millions of indisputably legal votes, cast by their fellow American citizens, be literally not counted.
Is Trump delusional enough to think he actually won? Or is his behavior coldbloodedly knowing and malicious? He seems driven by wounded personal pride and lust for power. In any event, his claims lack any rational basis. The innocent mistakes and problems in the vote counting are minor, typical of most elections, and do not even remotely call into question the outcome in any state. But politics, as we all know, is often far from rational. Trump’s attack on the rule of law governing our elections is deadly serious and deeply dangerous. These are far worse than “stunts.” As Professor Richard Hasen notes, there is nothing funny at all about it.
As my colleague Professor Marjorie Cohn documents, Trump has engaged in nothing less than a brazen and frontal assault on American democracy. This is unprecedented in American history. It is far more defiant of facts and law than the notorious efforts on both sides to steal the 1876 election, during Reconstruction after the Civil War. It is also more dangerous than 1876. Unlike then, the person seeking to reverse this far clearer outcome is the incumbent President of the United States, wielding the full power and deafening megaphone of that office.
The most frightening thing about Trump’s assault is how — like all his misconduct in office — it has been aided and enabled by Republican officeholders at every level. From the President’s Cabinet, to the Senate and House of Representatives, to states and localities throughout the nation, they mostly stood by silently — and many overtly supported Trump. Only a small handful, like Raffensperger in Georgia and Senator Mitt Romney of Utah, clearly and forcefully pushed back.
It now appears that Trump’s drive to subvert the election has fallen short. On November 23, his political appointee heading the General Services Administration formally authorized the executive branch to cooperate with the transition to the Biden Administration. Trump tweeted his support while insisting he would still keep fighting the election result.
Most Republicans will probably follow the party line that Trump was entitled to pursue all possible legal remedies. But no candidate, much less an incumbent president, can rightfully undermine democracy and the rule of law with reckless allegations devoid of factual or legal substance. In just three weeks following the election, Trump appears to have destroyed the faith of most Republican voters in the legitimacy of our political system. He has perpetrated incalculable and unforgivable long-term damage.
An idiotic song on YouTube refers to “pallets full of ballots” being “found” that favored Biden. But they were not “found” — they were counted as required by law. Early Ohio returns favored Biden, but Ohio officials then “found” votes that flipped the state in Trump’s favor — by much more than polls predicted. But Democrats have not claimed any vote fraud in Ohio, even though it is largely run by Republicans. Democrats rationally grasp the fact that Ohio counted absentee votes first, which favored Biden, before counting election-day votes, which favored Trump, and that Trump simply outperformed the polls, as he did nationally and in many states.
Trump and his supporters, by contrast, have cherry-picked their complaints in selective, contradictory, and result-oriented ways. They chanted “STOP THE COUNT!” in states, like Pennsylvania, that counted election-day votes first and absentee votes later, producing the “blue shifts” that gave them so much heartburn. But in Arizona, where initial returns favored Democrats, they chanted “COUNT THE VOTE!” Arizona’s count did indeed shift Republican as it was completed, though Democrats still won the presidential and senatorial contests — by much narrower margins than polls predicted.
In Georgia, Raffensperger ordered a statewide hand recount that revealed innocent mistakes in dozens of counties, including Fulton (containing Atlanta, a mostly African American Biden stronghold). Many Republicans have targeted such urban areas for racist attacks, while ignoring the white suburban voters who turned against Trump and were probably more decisive in this election.
But the worst errors in Georgia occurred in rural, rightwing, and mostly white Floyd County, which went about 70–30% for Trump — and failed initially to count 2,448 votes (1,567 for Trump and 881 for Biden). Fulton County, with a population ten times larger, missed a total of 415 votes (380 for Trump and 35 for Biden). In the end, Biden’s margin in Fulton County was reduced by about 0.06%, and his statewide margin (more than 12,000 votes) by about 0.02%. Recounts are a valuable auditing tool, though historically speaking, when margins are greater than a few hundred votes, they almost never change outcomes.
Democrats generally did not oppose and have not criticized the Georgia recount demanded by Republicans. In Florida 20 years ago, by stark contrast, Republicans furiously opposed a statewide hand recount in that far closer and more dubious election. They claimed it could not be done fairly, feasibly, or constitutionally. The Supreme Court, by a 5–4 majority composed entirely of Republican appointees, halted that 2000 recount in its tracks and effectively anointed as president the Republican candidate.
If Democrats were capable of orchestrating election fraud in key states without leaving any evidence, why did they mysteriously engineer much stronger showings by Trump than polls predicted? Why not massage the results to cleverly match the polls and produce better outcomes for Democrats? Trump made wildly false accusations about Wisconsin, Michigan, and Pennsylvania (all with Democratic governors), and about Arizona (with a Democratic Secretary of State), but in each of those states he held Biden to much closer margins than forecasted. In Georgia, run by Trumpian Republicans, Biden and the Democratic Senate candidates matched very closely what polls predicted
Trump and his backers cannot have it both ways. Those very same “pallets of ballots,” which they claim produced a fraudulent Biden win, produced surprising victories for Republicans, who outperformed the polls in numerous congressional races. In Maine and North Carolina, also with Democratic governors and where polls again predicted Democratic victories, Republicans won Senate races crucial to their possible control of that body. Trump himself won North Carolina.
Those two Republican officials in Wayne County, Michigan, backed down and allowed the vote to be certified on November 17, but only after being confronted by ferocious public protests at their naked power grab. How often will Democrats need to rally such responses in future elections, simply to ensure that officials do their jobs and follow the law? Just a day later, those same officials reversed themselves again after a phone call from Trump. On November 23, Michigan’s Board of State Canvassers certified the statewide vote. Only one of the two Republican members voted to certify the indisputable result. The other Republican abstained after pushing for delay without any legal or factual basis.
There are disturbing parallels between the November 9 statement by Senators Perdue and Loeffler in Georgia, demanding Raffensperger’s head, and the ensuing “stunts” in Michigan. The most frightening thing about the Perdue-Loeffler statement, and all these Trumpian assaults on democracy, is that they offer us no stopping point short of the abyss. Perdue and Loeffler did not even pretend to specify any flaws in the election. Their message was obvious and simple: The responsible public servants “failed to deliver” the results they wanted. The only possible next step, to appease such bullying demands, will be for election officials across the country (perhaps across party lines) to start routinely bending or breaking the law. As events in Michigan show, that is already starting to happen.
Trump’s tacit concession on November 23 may ease the immediate crisis. But it provides little long-term comfort. Despite Raffensperger’s brave public face, he must know his political future, at least in the Republican Party, has probably been destroyed. How many state and local officials will fail to show his backbone and sacrifice their own careers? Those Michigan officials were only too anxious to “deliver” to Trump the results he demanded.
Five years ago, former Texas Governor Rick Perry rightly called Trump a “cancer on conservatism.” (Perry later sold his soul, as too many Republicans have, and took a job in Trump’s Cabinet.) Trump has now become a cancer on American democracy — and the disease is metastasizing rapidly.
Trump’s behavior, though a shocking break from two centuries of American history, has ample precedents elsewhere. It recalls the statements and actions of military dictators, communist rulers, and fascist demagogues around the world as democracy has struggled to gain a lasting foothold. Those struggles continue, but Trump has dealt them a devastating setback. The shining example of America’s highest ideals may now be irretrievably tarnished.
It is not clear what vaccine, if any, can stop this global contagion. Dictators around the world are now grinning horribly. Many people, across party lines, have commented on Trump’s fondness for authoritarian rulers, even those who threaten American interests, over the democratically elected leaders of America’s allies. Trump clearly envies the unchecked dictatorial powers that our constitutional system does not allow him to wield.
There are many reasons why Trump is patently unfit for public office. Some were already obvious in 2016. Others have become more clear during his presidency: his corruption; his abuses of power; his compulsive dishonesty; his bigoted and bullying statements; his utter disdain for facts and the information he needs to do his job; his lazy refusal to make even a pretense of the hard work required.
We are now reminded of the one reason that rules them all — the one insight that should at last be apparent to any rational observer:
Trump does not believe in democracy.
Even worse: When he lost his bid for reelection, he demonstrated his willingness to destroy democracy as he saw he could not bend it to his will.
Where will this end? How many Americans will keep following Trump — and the demagogues that will follow him — down this delusional path? Trump appears likely to remain the de facto leader of the Republican Party. He or someone he handpicks may well be the Republican presidential nominee in 2024. How many Republican public officials will obey the demands of Trump or some other demagogue, rather than the oaths they swear to uphold the Constitution?
How can American democracy function when one of our two major political parties seems determined to prove it cannot be trusted with power? How can we rationally debate solutions to our problems, when too many refuse to accept any shared view of reality? How can Americans across our political divide regain the trust in each other that is essential for democracy to work? Pete Buttigieg, perhaps the most thoughtful of all the presidential candidates in the post-Obama era so far, recently published a book exploring that final question with the simple title: Trust.
As a small and partial start, I have set forth proposals on voting rights and constitutional reforms that may have some bipartisan appeal. If any of them were adopted, they might help restore some of the trust essential for our democracy to function. They would prevent court-packing and bring greater predictability and fairness to judicial appointments. They would make the U.S. Attorney General an independent officer dedicated to the rule of law. They would reform the Electoral College while preserving its traditional constitutional structure. They would eliminate partisan gerrymandering and the absurd conflicts of interest that allow partisan elected officials (both Democratic and Republican) to oversee elections in which candidates of their parties (and they themselves) must run.
Like most of America’s problems, these challenges affect all of us alike, regardless of party. Like it or not, we are all in this together.
Bryan H. Wildenthal, Professor of Law Emeritus, Thomas Jefferson School of Law (San Diego), will be a Visiting Professor in Spring 2021 at the University of San Diego School of Law.
Suggested citation: Bryan H. Wildenthal, Republicans, the Rule of Law, and the Fate of American Democracy, JURIST -Academic Commentary, November 29, 2020, http://www.itbkb.cn/commentary/2020/11/Bryan-Wildenthal-Republicans-Law-American-Democracy/.
This article was prepared for publication by Anne Bloomberg, a JURIST staff editor. Please direct any questions or comments to her at firstname.lastname@example.org
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