RBG, the 2020 election, and the rolling crisis of American democracy

For much of this fall, Americans have fretted about a legitimacy crisis surrounding the 2020 election. But now, after the death of Supreme Court Justice Ruth Bader Ginsburg and the hypocritical Republican rush to fill her seat in an election year, it’s clear that the crisis is here.

Liberal democracy only functions when major parties accept the right of their opponents to govern. The purpose of the system is to take the antagonism that defines politics everywhere and channel it, creating rules and establishing norms that prevent one segment of the population from crushing others’ ability to participate in and shape the system.

The breakdown of these rules and norms is at the heart of our current crisis. And the reason for this breakdown is that one of our two major parties has waged a decades-long campaign against them.

Simply put, Republicans for decades have been delegitimizing the very idea of Democratic Party rule. Republicans shut down the government in the 1990s and impeached President Bill Clinton over far less than what Trump has done in office. Under President Obama, they fanned the flames of birtherism, held the global economy hostage to force spending cuts, prevented Obama’s Supreme Court nominee from even getting a hearing, and elevated obstructionism to the level of governing principle.

At the state level, they have rewritten electoral rules to block Democrats from voting and seized power from Democratic governors after they have won elections. On Wednesday morning, the Atlantic reported that the Trump campaign was preparing to ask Republican-controlled legislatures in battleground states to override the results of the actual vote and send their own, Trump-supportive electors to the Electoral College.

Under Donald Trump and Mitch McConnell, the Republican agenda has devolved into one of minority rule: an abuse of the counter-majoritarian parts of the American political system in order to lock Democrats out of power, and a willingness to stop at nothing to pursue these goals.

For years, Democrats have refused to respond in kind, holding off on engaging in the same kind of procedural warfare that Republicans have made routine.

But a repeated gap between winning the most votes and winning power, thanks to the Electoral College and the Senate, has pushed Democrats toward a more aggressive stance. They now believe, with good reason, that they represent the majority of the country — and that beating back Republican efforts to tilt the electoral playing field and seize control of the Court requires its own brand of procedural radicalism. Once-unthinkable measures like court-packing and ending the filibuster are now in play, with the latest Supreme Court vacancy seemingly like a true tipping point.

“Nobody’s word means anything in this place anymore. All that matters is raw power,” Sen. Chris Murphy (D-CT) tweeted on Monday morning, reacting to news that Senate Republicans would push through a Supreme Court nominee six weeks from an election — a complete reversal of the GOP’s stated principle in 2016.

“Got it. New rules.”

Given this backdrop, many on the losing side in the battles over the Supreme Court and the election will almost certainly believe the other side’s victory is illegitimate. Depending on how things play out — and it’s important to be humble about our ability to predict the future — the November election has the potential to be a flashpoint that turns the escalating fight over control of America’s institutions into a full-fledged constitutional crisis.

To understand why we should be worried about what happens in the coming weeks and months, it’s worth dwelling a bit on the concept of political legitimacy in democracies.

“In general,” the political philosopher Samuel Freeman writes, “the idea of legitimacy in law and politics relates to the proper enactment and application of laws and bestowal of authority of upon officials, all according to generally accepted and respected procedures.”

The key words there are “proper” and “generally accepted.” In the context of an election, what that means is whether it’s perceived as free and fair by the country’s citizens. An election is legitimate in this sense when Americans generally accept that it was conducted properly. The same goes for the business of a president appointing, and the Senate confirming, a Supreme Court justice.

But citizens’ perceptions also should, in theory, correspond to reality. If real policies are actually making the United States’ voting and Supreme Court appointment procedures less fair, then it’s understandable if that country’s citizens lose faith in elections and the judicial system — as many have in former democracies that have gone authoritarian, like Russia and Venezuela. And when elections and judicial appointments are actually the product of fair procedures, you’d expect citizens to see them as legitimate.

In this respect, the fight surrounding American elections is somewhat strange.

Trump and the GOP have used dubious allegations of voter fraud to convince Republicans that elections they lose are illegitimate in ways that they actually are not. These arguments have then served as justification for new policies that actually do make American elections less fair — think voter ID and mass purges from voter rolls that disproportionately hurt Democratic-leaning voters — thus leading Democrats to lose faith in electoral legitimacy.

Put differently: A partisan strategy of falsely claiming elections are unfair has perversely served as justification for policies that make them less fair, damaging legitimacy among voters from both major parties. This process, which has escalated significantly in recent years, has laid the groundwork for an election that could end in crisis dwarfing the 2000 Bush v. Gore mess.

Jeff Swensen/Getty Images

It should not be controversial, at this point, to assert that Republicans have been making false and misleading claims about the threat from voter fraud for years. Ben Ginsberg, a Republican attorney who has worked on the party’s election monitoring efforts since 1984, admitted as much in a striking Washington Post op-ed.

“Republicans ... must deal with the basic truth that four decades of dedicated investigation have produced only isolated incidents of election fraud,” Ginsberg writes. “A study of results in three states where all voters are mailed actual ballots, a practice that has drawn the president’s outrage, found just 372 possible cases of illegal voting of 14.6 million cast in the 2016 and 2018 general elections — 0.0025 percent.”

This Republican effort has had the effect of turning electoral legitimacy into a partisan issue, causing Republicans and Democrats to adopt fundamentally different views about what makes American elections fair.

One study quantified this split using data from a survey of 10,000 voters (200 from each state) conducted in 2014. The authors found that in states that had strict voter ID laws, Republicans were considerably more likely to say they were “very confident” in the state’s vote-counting process than Democrats were. In states without those laws, things flipped — Democrats were the ones expressing higher confidence in the electoral system.

Trump, as is so often the case, took this long-running problem and escalated it dramatically. It started during the 2016 campaign, when he warned of an election “rigged” by “millions” of illegal votes cast on Hillary Clinton’s behalf. This rhetoric mattered — one study found that Trump supporters were notably less likely to believe the election would be fair during the campaign — but was obviated by Trump’s victory and Clinton’s concession.

As the 2020 incumbent, Trump’s rhetoric means a lot more — and, if anything, he’s turned up the heat. He said in August that “the only way we’re going to lose this election is if the election is rigged.” He has falsely claimed that Democrats are sending out “80 million ballots to everybody and there’s tremendous cheating going to go on.” He openly claimed to be blocking emergency funding for the US Postal Service to prevent universal mail-in balloting.

These are not one-off comments. The attacks on vote-by-mail and intimations that Biden could only win by cheating have become staples of the president’s rhetoric and right-wing media.

Trump’s assault on the electoral system damages public faith in the elections on both sides of the aisle: Many Republicans actually believe what he’s saying, while many Democrats see his comments as evidence that he’s trying to use his powers of office to rig the game in his favor.

After the 2016 election, about three-quarters of Americans thought the results were legitimate. By contrast, a mid-August 2020 NBC poll found that a majority of Americans had limited or no confidence in the fairness of the November elections, including 65 percent of Republicans and 46 percent of Democrats. In a mid-September poll from Yahoo/YouGov, only 22 percent of Americans expressed confidence that the elections would be “free and fair.”

And so we head into Election Day with large chunks of the population poised to doubt the legitimacy of whoever wins.

The Supreme Court vacancy left by Ruth Bader Ginsburg’s death has now linked the November election, already dubiously legitimate, with the broader problem of Republican procedural radicalism.

Republicans have convinced themselves, thanks to past events like the Democratic rejection of Reagan’s appointee Robert Bork and the sexual misconduct allegations that dominated the hearings held for Clarence Thomas in 1991 and Brett Kavanaugh in 2018, that Democrats don’t play fair when it comes to this most powerful of American institutions. This sense of grievance has provided cover for a scorched-earth approach to judicial appointments, where anything and everything is justified in the name of ensuring conservative control.

Hence the Republican treatment of Merrick Garland, Obama’s Supreme Court nominee to replace Antonin Scalia on the Court. McConnell claimed it would be inappropriate to replace Scalia during an election year, and that justice died in February 2016. Now Republicans are vowing to install a Ginsburg replacement with about 40 days until an election, a blatant violation of the standard set for Garland. It’s a transparent exercise in power politics that threatens the legitimacy of the Court.

“If Trump and Republicans replace Ginsburg it will destroy the remaining public legitimacy of the Supreme Court. Full stop,” the conservative journalist Jonathan V. Last writes in The Bulwark. “The Republican party’s willingness to invent, bend, cherry-pick, or break rules and norms as needed in the pursuit of power would be undeniable.”

Joshua Lott/Getty Images

Such an appointment would cement the Democratic perception that a defeat in 2020 would not just be a normal political loss: It would threaten to lock them out of power for a long, long time. And, on this view, it would be because the Republicans bent or broke the norms and rules of American politics.

Fears about GOP capture of the Court are compounded by United States’ profoundly dysfunctional electoral system. It seems overwhelmingly likely that Trump will lose the popular vote — meaning that if he were to win, that win would, for the second time in a row, be handed to him by the Electoral College.

This is a weakly legitimate institution in the first place — a series of Gallup polls conducted between 1967 and 2011 all find majority support for its replacement with a national popular vote system — but Democrats have long been more supportive of its abolition than Republicans. This split has been intensified by the nature of the two parties’ current coalitions, which structurally advantages Republicans, both in the Electoral College and in the Senate.

It’s generally understood that if Biden wins, Trump can be expected to cast doubt on the results and maybe even refuse to concede defeat. But a Trump win, given Democrats’ reasonably justified skepticism about the GOP’s commitment to playing fair and general sense that the system is rigged against them, could create a crisis of its own. That’s especially if Trump wins via a Supreme Court decision against counting mail-in ballots or on some other flimsy legal challenge — a victory won with the votes of some or all of justices he picked to replace Scalia, Ginsburg, and Anthony Kennedy.

“If one side sees the other side as consistently cheating, the very premise of democracy is undermined,” writes Rick Hasen, an expert on election law at UC Irvine. “This year, the grounds for Democrats to fear an illegitimate election have only increased.”

Legitimacy might seem like a fuzzy concept, maybe even an irrelevant one. Does it really matter whether people on the losing side think the election was fair?

The answer from political scientists is an unequivocal yes.

“This type of tension, in other countries, has led to civil war,” UC Berkeley’s Susan Hyde tells me.

A 2009 paper by Kristine Höglund, a professor at Sweden’s Uppsala University, surveys places that have been hurt by election-related violence — a diverse group ranging from Sri Lanka to Kenya to the Palestinian territories. When elections are perceived as unfair by the losing side, they become more likely to turn to violence as a result. Fighting becomes even more likely when elections have higher, group-based stakes — when they feel less like a competition between citizens and more like existential struggles between opposed ethnic or religious groups. Other causes of violence include “biased police,” widespread “access to arms,” and “political usage of electoral administration.”

The point of these comparisons, according to Hyde and others, is not that the United States is likely to experience a kind of new civil war (though it’s telling that she needed to raise that as a possibility). For a variety of reasons, including the professionalization of the military and the country’s long history of peaceful power transitions, that seems exceptionally unlikely.

Rather, the point is that American democracy is taking on features that are genuinely abnormal in wealthy, consolidated democracies — forms of polarization, social distrust, and politicization of ostensibly neutral government institutions like the Supreme Court that spell doom for public faith in electoral outcomes. When that faith is lost, political factions that have lost elections look to other forms of political activity for satisfaction.

Tom Pepinsky, a political scientist at Cornell, tells me that “we are in uncharted territory” — that no advanced democracy has ever had an election with this kind and degree of problems. The closest analogy he could think of, modern Thailand, was in no way reassuring: a political crisis surrounding the April 2006 election resulted in a military coup.

“There are lots and lots of differences” between the US and Thailand, Pepinsky notes. “But the important similarity is this idea that no side believes the election could be fairly held that they don’t win.”

There are a number of ways that 2020’s loser could challenge the election’s outcome. FiveThirtyEight’s Geoffrey Skelley sketches out one particularly troubling scenario, wherein Trump has a narrow lead in the decisive state of Pennsylvania on election night that ends up flipping after all the absentee ballots are counted. The state’s Democratic governor confirms a Biden victory and sends his electors to the Electoral College, while the state’s Republican-controlled legislature, following Trump rage-tweets, appoints a different slate.

According to Barton Gellman’s reporting in the Atlantic, the Trump campaign and its allies in Pennsylvania are actively considering this kind of push.

Direct appointment of electors “is one of the options. It is one of the available legal options set forth in the Constitution,” Lawrence Tabas, the Pennsylvania GOP’s chair, told Gellman.

The process of whose slate wins out in this kind of fight is, it turns out, shockingly indeterminate: This could easily end with Biden and Trump both claiming to be the real president on Inauguration Day. Massive protests would likely ensue; violence involving the police or armed militias, like the ones recently seen patrolling the streets of Kenosha, Wisconsin, are well in the realm of possibility in this or any other contested election scenario.

If Trump chooses to abuse his power as president, things could get even darker. Longtime Trump ally Roger Stone, during a September appearance on conspiracy theorist Alex Jones’s talk show, called on Trump to send federal marshals to seize allegedly corrupt absentee ballots, declare “martial law,” and arrest a list of political enemies that includes “the Clintons” and former Senate Majority Leader Harry Reid.

There just isn’t a good parallel for what we are currently living through in recent American history or that of any other wealthy democracy; comparisons with developing and post-conflict states, like Thailand or the United States of 1876, are closer but still not quite exact given the profound differences between these places and modern America.

This is terra incognita. The fairness of our elections has come under fundamental question, as has the Court that’s supposed to provide legal redress in exactly this kind of dispute. There is no road map for what may lie ahead, and getting out of it will require a genuine reckoning with what got us here — that one of our major parties has spent decades convincing itself that its rival wielding power is an unacceptable catastrophe.

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