In 1814, John Adams wrote a letter to Virginia Delegate John Taylor reminding that "Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a Democracy yet, that did not commit suicide."
Texas was never going to win its recent lawsuitagainst Georgia, Michigan, Pennsylvania and Wisconsin, but if it had, it certainly would have fulfilled Adams' dark prophesy. The lawsuit, filed by a Texas Attorney General under criminal investigation, read more like an effort to curry favor with the President than a serious legal document. On a personal level, his logic was sound: when pardons are being handed out to corrupt cronies, corrupt people figure out how to become a crony, fast.
Far more alarming was the decision of eighteen other Republican state attorneys general—most of whom presumably do not need a pardon from the outgoing president—to support Texas' effort to disenfranchise millions of American voters and overthrow the results of a democratically held election.
They were joined by more than half of the Republican members of the House of Representatives—126 in all—all signing onto the proposition that four states' elections should be entirely discarded. Strikingly, several of the signatures on that brief were from Members seeking to disenfranchise their own voters and cast their own elections into doubt.
The Supreme Court rejected Texas' anti-democratic effort unanimously, with seven justices saying that Texas did not have a legal right to proceed and the other two saying that they wouldn't block the election even if the case did proceed.
Our institutions held—this time.
But the broad support among Republicans for the previously unthinkable—a demand that the judiciary deliver Trump the presidency against the overwhelming will of the American people—signals a worrying and serious erosion of our democratic values within the Republican Party.
This time, there were several reasons that the attempted coup failed and John Adams' prediction did not come to pass. There is no guarantee that we will be so lucky next time.
First and most obvious, Joe Biden and Kamala Harris won a landslide election garnering more than 300 electoral votes and a lead of more than seven million votes nationwide. There was no single contested state whose results decided the outcome.
Second, the states attacked by Trump's lawsuits included states with mixed partisan governments–Georgia has a Republican Governor and legislature, while Michigan, Pennsylvania and Wisconsin all have Democratic governors and Republican legislatures.
Third, Democrats control the U.S. House, and the Senate is narrowly divided. Thus, any ultimate decision to tamper with democracy would face a skeptical Congress.
Finally, the legal claims being advanced wereoutlandish, unsupported in law or fact, and poorly lawyered. By the time the U.S. Supreme Court received Texas' case, similar claims had been rejected by courts around the country, and the lawyers advancing them had become the subject of national ridicule.
But what if it were closer, the legal claims and team more polished and the Congress unified in support of that candidate?
Donald Trump came to prominence in Republican politics by promoting birtherism—the racist lie that Barack Obama was not born in the United States. Even as clear evidence proved that it was not true, Trump did not retreat. Instead, he expanded the lie to make it even more outrageous and conspiratorial.
Trumpism has morphed from a racist attack on the first Black president into an all-out assault on the very idea of democratic elections. In this sphere, Trumpism's defining feature is a belief that every electoral outcome that does not favor Trump and his allies must be fraudulent. Its logic is tautological—if Trump did not win there must have been fraud. If there was fraud, Trump did not win. Nothing more is required.
One might think that the simple end of this problem is for Donald Trump to simply leave the White House on the morning of January 20th as a disgraced one-term president. The Republican Party's reaction to the Texas case suggests this will not be the case.
John Taylor, to whom Adams was writing, was also skeptical of virtue as the foundation for democratic government. "The more a nation depends for its liberty on the qualities of individuals, the less likely it is to retain it. By expecting public good from private virtue, we expose ourselves to public evils from private vices."
Trumpism has taught us that, for our democracy to survive, we cannot allow ourselves to be exposed to public evils from private vices. This means hardening our institutions of democracy and making them more explicit. This will need to take many forms, but we must start with those that force our nation's leaders to do better.
First, every election-related lawsuit should have to explicitly state in the caption of the complaint whether the plaintiff is claiming fraud. Claims of fraud must be held to the highest pleading standard—providing the details of who, what, when and how much. If plaintiffs do not claim fraud, they need to say so. When a lawsuit claiming fraud is dismissed, judges should be required to make a specific finding that the claim of fraud was denied.
Second, state bar associations should promulgate specific rules of ethical conduct aimed at anti-democratic efforts. Just as attorneys owe an obligation to the court, they should owe obligations to democracy and democratic institutions. Lawyers should not be allowed to recklessly shout fraud in the parking lot but quietly disclaim it in the courtroom.
Finally, the House and Senate must strengthen their internal rules to prevent Members from undermining democracy. Candidates who, through public statements or court filings, cast doubt on an election that they won should not be seated without formal inquiry into the validity of their election credentials. Members should also be cautioned from making statements, outside of official channels, casting doubt on the validity of an election other than one for a seat in their own chamber.
These suggestions are not the complete solution for what we have witnessed, but they are a start.We cannot ignore the challenges our democracy faces. We must not wait to act until it is too late.
Democracy Docket, December 16, 2020
Marc Erik Elias is an attorney specializing in election law, voting rights and redistricting. He is a partner at Perkins Coie and head of the firm's political law practice. He led most of the 60 fights against Trump’s false claims of fraud in 2020.
December 17, 2020
Voices4America Post Script.A must read. Marc Elias led and won most of the 60 fights against Trump's false claims of fraud in 2020. He warns us what we must do to strengthen our democracy. Share this.