Trump, a Texas lawsuit, and democracy’s future

Joshua Roberts/Reuters
Supporters of President Donald Trump stand in front of the U.S. Supreme Court, which is reviewing a lawsuit filed by Texas seeking to invalidate four other states’ elections and undo President-elect Joe Biden's victory in Washington, Dec. 11, 2020.

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President Donald Trump’s continued false insistence that he is the rightful winner of the 2020 election is culminating six weeks after Election Day with a widespread Republican embrace of an audacious legal effort to invalidate the votes of entire states – an attempt which, if successful, would inflict grievous damage on American democracy itself.

The mere fact that the attorneys general of Texas and 17 other GOP-led states, almost two-thirds of House Republicans, and the president have signed on to such a lawsuit calls into question the Republican Party’s very commitment to democratic principles, say critics of the effort, filed by the state of Texas to the Supreme Court.

Why We Wrote This

Texas has filed a lawsuit aimed at invalidating several states’ presidential results. It could be classified as simply hardball politics. But many say that it is flatly anti-democratic.

Republicans may feel free to get behind the suit due in part to its inherent legal weakness – many experts believe it will be quickly dismissed. But the whole thing is an exercise in hardball politics that is eroding centuries-old norms and destabilizing the core rhythm of mature democracy, in which parties accept losing in the knowledge that they will soon have a fair chance to compete to win again.

“It is disheartening to see so many Republican AGs and members of Congress supporting this lawsuit, which is antidemocratic and further undermines support for the rule of law,” says Rick Hasen, a law professor and author of “Election Meltdown.”

Update: The United States Supreme Court has rejected Texas’ attempt to throw out the presidential results in four other states, saying that it lacked standing and “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Justices Thomas and Alito said they would have allowed Texas to file, but “would not grant other relief.”

President Donald Trump’s continued false insistence that he is the rightful winner of the 2020 election is culminating six weeks after Election Day with a widespread Republican embrace of an audacious legal effort to invalidate the votes of entire states and mandate a Trump victory – an attempt which, if successful, would inflict grievous damage on American democracy itself.

The mere fact that the attorneys general of Texas and 17 other GOP-led states, a majority of House Republicans, and the president have signed on to such a lawsuit calls into question the Republican Party’s very commitment to democratic principles, say critics of the effort, filed by the state of Texas directly to the Supreme Court.

Why We Wrote This

Texas has filed a lawsuit aimed at invalidating several states’ presidential results. It could be classified as simply hardball politics. But many say that it is flatly anti-democratic.

Republicans may feel free to get behind the suit due in part to its inherent legal weakness – many experts believe the case will be quickly dismissed. But even if that occurs, experts say the whole thing is an exercise in hardball politics that is eroding centuries-old norms and destabilizing the core rhythm of mature democracy, in which parties accept losing in the knowledge that they will soon have a fair chance to compete to win again.

“It is disheartening to see so many Republican AGs and members of Congress supporting this lawsuit, which is antidemocratic and further undermines support for the rule of law,” says Rick Hasen, a law professor at the University of California, Irvine and author of “Election Meltdown,” in an email.

The insistence that Mr. Trump actually won an election he clearly lost is reminiscent of the old Trump-pushed falsehood that Barack Obama was ineligible to be president because he was born in Kenya, Professor Hasen adds.

“I see a direct line from Birtherism to this Election Trutherism,” he says.

The unusual lawsuit in question was filed by Texas Attorney General Ken Paxton – who is besieged by charges of corruption and other bad actions in his state – against Michigan, Georgia, Pennsylvania, and Wisconsin. It demands that the high court invalidate these states’ collective 62 Electoral College votes, all of which went for President-elect Joe Biden.

To make its case, the lawsuit repeats some of the same false or unproven claims about voter fraud used in dozens of previous failed state suits filed by the Trump campaign and its allies since Nov. 3. It uses a flawed “statistical analysis” widely questioned by experts that purports to prove that it was mathematically impossible for Mr. Biden to win the target states. It also charges that changes in state voting procedures made months prior to November’s vote and meant to ease an election held during an unprecedented pandemic are unconstitutional. 

In recent days, the Texas lawsuit has become something of a “conservative litmus test,” in the words of The Associated Press, as Republicans rush to prove fealty to a president who looks likely to keep his grip on the party even after he leaves the White House. By Friday afternoon, some 126 GOP House members, including House Minority Leader Kevin McCarthy, and multiple states’ attorneys general had signed onto the case by joining amicus curiae briefs.

Fear of Mr. Trump’s wrath and the Twitter attacks and possible primary challenges it can bring is one reason for this rush.

“There’s one set who see their lives passing before their eyes when they even think about bucking the leader,” says Susan Stokes, director of the Chicago Center on Democracy at the University of Chicago.

Grassroots pressure is another. Some 77% of GOP voters say they believe there was widespread voter fraud during the election, according to a new Quinnipiac poll. Those views, of course, have been directly shaped by the president’s baseless accusations that the election was “rigged” – accusations that many members of his party have been reluctant to dispute, despite having no significant factual or legal support.

Some Trumpian true believers embrace the president’s anti-democratic moves or benefit politically from the Trump party juggernaut, and want to keep it rolling.

“But I don’t believe that many of them think that there’s any legal grounds to this case,” says Professor Stokes.

For one thing, the suit was filed very late. It came not only after Election Day, but after target states had certified their election results, and after the “safe harbor” date when Congress has ruled states should have settled any internal election disputes.

Texas may also simply lack standing to sue. It’s hard to see how the election results in another state directly affect Texans, say legal analysts, especially since the Constitution empowers each state to set its own election procedures. In any case, the Supreme Court generally only hears state versus state suits in instances of genuine interstate conflict, such as disputes over water rights.

Under the novel legal theory Texas is using, New York and California, say, could sue Texas on grounds their citizens are hurt by relatively lax Texas gun control laws, says James Gardner, a professor at the University at Buffalo School of Law and an expert in election law.

“There’s a name in our system for that phenomenon, when states pass their own laws to govern their own people. It’s called federalism,” says Professor Gardner.

Legal experts contacted for this story all said their general expectation is that the Supreme Court will dismiss the lawsuit without an opinion. 

One wrinkle is that Justices Clarence Thomas and Samuel Alito have in the past written opinions holding that the high court does not have the discretion to decline state versus state cases.

“They believe the court is compelled to take these cases. So they might write something very short that the court shouldn’t dismiss this on a discretionary basis,” says Derek Muller, a professor at the University of Iowa College of Law and an expert in election law.

Battleground states fire back

Target states have responded to the Texas suit with anger and disbelief. In their view, a fellow state is ginning up excuses to try to disenfranchise millions of Pennsylvanians, Michiganders, Georgians, and Wisconsinites.

“The court should not abide this seditious abuse of the judicial process,” said the beginning of the Pennsylvania brief in the case.

Some Republicans have spoken out against the effort, from Sen. Mitt Romney, who called it “madness,” to Georgia Gov. Brian Kemp, whose state went to Mr. Biden and is a lawsuit target. Governor Kemp has said to the GOP-controlled Georgia state legislature that picking pro-Trump Electoral College electors is “not an option.”

The problem that worries opponents the most is not the lawsuit per se but its aftereffects, even if dismissed. The specter of one of America’s political parties rallying enthusiastically around a flimsy effort to reverse the results of a presidential election seems a nightmare, something that happens in authoritarian countries. It implies that only a Republican can legitimately sit in the White House.

“That undermines the faith in our democratic system,” says Michael McDonald, an elections expert at the University of Florida who runs the U.S. Elections Project. “Our democracy is based on – or, any democracy is based on – the fact that there’s a peaceful transition of power, that the losing side accepts those results.”

At what cost?

But ideally, democracy is a game with an infinite number of rounds, in which both sides agree on the rules. They accept losses because they know the game’s not over. They’ll have a chance in the future to win back the power they’ve lost.

Republicans who have backed the Texas lawsuit may see it as doing what their voters want, and believe it is essentially costless, given that the chances of it actually resulting in a second term for Mr. Trump are extremely low.

But they’re overturning democracy’s metaphorical game board, in the view of Geoffrey Kabaservice, director of political studies at the Niskanen Center, a libertarian think tank. He thinks they won’t have credibility in the future to stand as democracy’s defenders.

“Not only is [the lawsuit] a document that actually calls for the disenfranchisement of millions of fellow Americans, but it’s premised on this idea that Democrats cannot be trusted in power, that Democrats are in fact the enemy that has to be defeated at all costs,” says Mr. Kabaservice.

It remains possible that the emotions engendered by the unique 2020 election cool in future years on both sides of the political spectrum, and what seems dangerous to democracy today will seem in retrospect a much smaller event.

The many Republican voters now expressing doubts in the election’s validity may simply be venting frustration that their candidate lost. Once Mr. Trump is out of the Oval Office the whole thing could seem less important.

Or, out of power, Mr. Trump might continue to use allegations of fraud and a stolen election to keep his base loyal and fired up – and keep politically disillusioned non-Trump voters on the sidelines, believing that American politics is a sham.

“You have some people who believe the lie” about the election bring rife with fraud, says Myrna Pérez, director of the Voting Rights and Elections Program at the Brennan Center for Justice. “And then you have some people who don’t believe it, but are so disgusted that our politicians are behaving this way that they’re just skeptical of the entire process, and I actually think the last group of people are being targeted intentionally.”

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