The Somewhat Slower Unraveling of Constitutional Democracy

by Neil H. Buchanan

 

Just over four years ago, I warned that Donald Trump's 2016 Electoral College victory could represent an "extinction event" for constitutional democracy.   The purpose of a warning, of course, is to offer people the opportunity either to prevent or at least prepare for the consequences of something bad.

 

In the ensuing years, I have at times (e.g., here and here) suggested that the United States is in fact a "dead democracy walking," which would mean that it is too late to prevent disaster.  Sadly, this is still true, even if Joe Biden takes the oath of office next month.  The death throes will most likely take a few more years to play out, for which we should all be grateful, but there is no reason to be hopeful that we have restored America and ended Republicans' authoritarian threats going forward.

 

If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it seems certain that things will still turn out badly.

 

My concern was never that Trump could win reelection on anything remotely resembling a fair contest, because the nature of his 2016 surprise win was so difficult to imagine being repeated.  This year's outcome turned out to be closer than I expected in the swing states that could have produced another split between the popular vote and the Electoral College, but we now know that Trump indeed was not able to win a second term under the rules, even with Republicans continuing to suppress Democratic votes.  The only question was whether he would try to supersede the will of the people by staying in office through any of various versions of a coup (some possibilities being bloodless, others not).

 

And try he has.  Indeed, even though I have significantly calmed down over the past few weeks about the possibility that Trump will somehow stay in office after January 20, 2021, I am still not sure that the danger is behind us.  Even a news article from yesterday's Washington Post that described yet more steps being taken to finalize the election offered some reasons for continued worry: "The legal contests in Arizona are not over, however. It is one of several states that permits election results to be challenged after certification."  Also from Wisconsin:

"State law includes a provision allowing a campaign that loses a recount five days to challenge the results in court, meaning the Trump campaign can still seek to challenge Evers’s move. In a statement Monday, the state elections administrator, Meagan Wolfe, said a judge could still order the certificate of ascertainment to be amended should Trump win in court."

It is still true, of course, that the qualifier "should Trump win in court" is a source of great comfort.  Even so, the hapless Rudy Giuliani is still at it:

"Giuliani claimed the election had been stolen from the president and called on the legislature to choose its own electors to support Trump.  Giuliani compared the move to the self-sacrifice of 'losing your life on a battlefield.' ... 'Your political career is worth losing if you save the right to vote in America,' he said. '... That’s really what’s required right now.'"

Again, that seems exceedingly unlikely, but Trump -- far from taking the time to come to terms with his loss -- is still busily trying to find Republicans who are willing to do what he wants, which means either to throw out enough votes for him to claim to have won three swing states or to have the state legislatures override their own citizens' votes.

Let us assume for now, however, that all of this will go nowhere and that my lingering (if somewhat muted) panicked vigilance is unnecessary.  Even if our democracy's death is not going to happen in the next two months, what will happen after that?

Two recent columns have offered very good reasons to think that we have, at most, four more years of something like normal before the final breath of the rule of law is drawn.  Law professor Edward Foley in The Post runs through many reasons for concern, and Jeff Greenfield offered an even better analysis in Politico.  Greenfield's title: "Did American Democracy Really Hold? Maybe Not."  There is now a clear path for Republicans to roll out their anti-democracy end game a bit more slowly, even if they do not ram through a Trump coup between now and Inauguration Day.

One thing that will be very helpful in their efforts is a Supreme Court case that endorses the nonsensical "legislatures-only theory" -- the claim that the references to state legislatures in Articles I and II truly mean "legislatures without any input from the state's other branches of government."

Because there is not likely to be a case directly on point that comes before the Court in the next four years, this would have to be included as very loud dicta in some other case.  But given that the Court has already been given the opportunity to weigh in on things like the constitutionality of nonpartisan redistricting commissions -- where a legislatures-only reading would actually require one to believe that the state's citizens themselves have no power to stop a state legislature, even through ballot initiatives -- it is easy to imagine that the Court's conservative bloc will be given some opportunities to announce that Republican legislatures can bypass Democratic governors to change election rules.

 

The Court's Republican ideologues would not be so crass as to use those terms, but they could certainly make it clear that they would rule in favor of a legislature that has gone rogue.  And if that is known in advance, it will simply give free rein to future versions of the legislative leaders in Michigan who -- this year -- refused to steal the election.  What if they had been able to say: "The Supreme Court said that we have the power"?

When would those legislatures act?  One possibility would be to wait until shortly before the next election, changing their rules from "the voters decide" to "we decide" in states where the Republican might lose.  But why not act sooner?

The short answer is that those legislators themselves are subject to the voters' will on a regular basis, and telling one's own voters that their state is not going to be holding presidential elections is potentially explosive. 

Although that might seem to be a big deal, there are various fig leaves that one could fashion for this kind of power grab.  For example, a state could have people vote for president in a general election, but the vote could be deemed "advisory," where the legislators who pass the new scheme offer non-binding promises that they will obviously never override the will of the people.

 

Or the legislature could say that the vote will be binding only if there is no fraud or hint of fraud, setting up a sham procedure by which the legislature could determine that there was indeed fraud.  ("If the leaders of both houses of the legislature agree that there are serious concerns that the election's results are the result of fraud, malfeasance, or incompetence, the legislature shall appoint electors who will vote for the candidate who truly won the state's election.")

One must also ask whether Republicans would worry about any of these niceties.  It is quite possible that Republican voters -- who now overwhelmingly think that the 2020 election was stolen from Trump -- care more about winning than voting.  If they are told that the new plan is a way to guarantee that a Republican will always win, they might be fine with that.

 

Also, as I have noted before, even these swing states have incredibly safe Republican legislative majorities, thanks to gerrymandering.  It is becoming ever less possible to think that Republican voters would say, "Well, I don't like having my democracy taken away from me, so I'll vote for Democrats for the state house and senate to punish Republicans."  South Carolina's voters were given as clear an example as one could get of a politician lying to them and admitting it -- Lindsey Graham's shameless back flip regarding Supreme Court confirmations during an election year -- but even though Graham's opponent was well funded and an excellent candidate, the state's voters rewarded party loyalty and did not punish the offender.  Being a loyal Trump Republican meant more than being a minimally decent human being.

In the end, this is why I am so pessimistic about the future of the country.  The Republicans have spent decades doing everything possible to allow themselves to enjoy minority rule.  They have suppressed votes in myriad ways, and their judicial appointees let them do it.  (Their ultimate martyr, Robert Bork, believed that the Supreme Court was wrong in its one person-one vote decision.)  When Anthony Kennedy punted once again on gerrymandering in 2018, that guaranteed essentially permanent minority rule in many states.  Basically, once Republicans gain control of any legislature, they do everything possible never to lose control again.

That means that Republicans can now go about the business of, say, turning the once-obscure process of certifying election results into purely partisan exercises.  The people in Georgia, Michigan, and elsewhere who said that they had no choice under the law but to declare Joe Biden the winner will have no such limitations in the future, even if the Supreme Court does not give them the green light.

Certainly, having Trump still in the White House going forward would be uniquely awful in many ways.  We should not, however, imagine that the future will see our political system become more representative of the nation's citizens.  Long before Trump, Republicans were putting in place the necessary elements of permanent minority rule.  I am glad that their end game seems to have been delayed by one presidential term.  But after that, what will stop them?