Through The Looking Glass; Or, Identifying And Minimizing…Something

For those interested in Judge Luttig's oped, see also my @HarvLRev Forum piece, "Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States" https://t.co/uafckmkIx2

THIS is deadly serious stuff.

— Rick Hasen (@rickhasen) April 27, 2022

As I said, a slightly more "scholarly" approach to the question of the Joint Session and the "insurrection" on Jan. 6, 2021. I put scholarly in quotes because my standard is German biblical scholarship, which can make the most densely annotated Supreme Court opinion on the most arcane legal topic look like a single tweet by comparison. I can't explain it better than that, so you'll have to take my word for it, but German scholarship is thorough. In ways that will make your head hurt. Which is to say it's not slight on Judge Luttig's column for CNN, but Hasen is writing for the HLR. It's still not German Biblical scholarship, but it's a much higher standard. 

We'll start with the precis:

Part I of this Essay describes the path to this unexpected moment of democratic peril in the United States. Part II explains the three potential mechanisms by which American elections may be subverted in the future. Part III recommends steps that can and should be taken to minimize this risk. Preserving and protecting American democracy from the risk of election subversion should be at the top of everyone’s agenda. The time to act is now, before American democracy disappears.

That "peril" language still raises hackles for me. It's been used too often by too many people; the seriousness it is meant to lend to this topic is beginning to be unserious.  Cassandra is turning into the boy who cried wolf.  We can only be alerted so many times before we decide the alerts are no longer meaningful. I grew up during the Cold War and under the literal threat of nuclear war.  We were taught to "duck 'n' cover" in school; we knew where the air raid shelters were.  Air raid sirens were tested, to be sure when the time came they'd work (I think I remember being told they would also sound as tornado warnings, but I honestly don't remember that ever happening).  CONELRAD was a symbol on the AM radios in cars, so you'd know where to tune when the sirens sounded.  Tests of the "Emergency Broadcast System" on TeeVee was not for weather warnings, but for the anticipated nuclear ones.

And yet I remember a made for TV movie (back when those were a thing, and not something produced by Netflix) about nuclear war, released in the '70's (IIRC), and how many teenagers (jr. high age, I mean; they seemed much younger than me) on a report about the movie (such things made the news) were so upset at the prospect of nuclear annihilation.  Where had they been?, I wondered.  What rock were they living under?  Mind, they couldn't have been more than 5 years younger than me at the time.  But by then we'd grown tired of living with peril, and we just ignored it. What I had grown up seeing in everything (it's funny now how many "Twilight Zone" episodes from the early '60's involved stories of a post-nuclear war world), five years later had completely disappeared from their cultural radar.

Closer to now, look at the dropping rates of vaccination for covid.  I understand Republicans don't want any more covid relief to come out of Congress.  Enough is enough, even though more is still needed.  Of course, that's mostly politics: why help Biden?  But covid as a concern is so far in the rear view mirror no one wants to pay attention to it anymore.  Constantly prating about perils, no matter what they are, quickly meets the law of diminishing returns. So I think we've already overstated the "democratic peril" of January 6.  Better we just move on, without the histrionics.

That said, Hasen plants this in history a bit more soundly than Luttig (or many Republicans who are never-Trumpers, or just anti-insurrection, do):

Republican claims of widespread voter fraud committed mostly by Democrats, people of color, and union members are not new, but they accelerated after the disputed election between then–Governor George W. Bush and Vice President Al Gore in 2000. These statements from a segment of conservatives and Republicans (and resisted by other conservatives and Republicans) persist despite all reliable evidence that voter fraud in the contemporary United States is rare and that when such fraud occurs it tends to happen on a small scale that does not tip the result of elections. The purported “evidence” of widespread voter fraud consists primarily of describing isolated instances of fraud as the “tip of the iceberg” or by taking administrative error or slack in election administration as conclusive proof of malfeasance.

We could drop in here the numerous news reports of true election fraud by individual voters, almost exclusively committed by Trump supporters.  Always the old adages:  "Guilty dog barks loudest."  "The beam in your own eye (which you see reflected as a speck in your brother's)."  Or my favorite now, because it was a schoolyard taunt but turns out to be so true:  "Takes one to know one."  These have to be remembered, and called to mind whenever someone is pointing fingers at someone else.  Which brings up the last adage:  one finger pointing at me leaves three pointing back at you.  What we do ourselves we accuse others of doing, to better hide our guilt.

None of those cases tipped the results of elections, either.

Hasen could use that opening sentence to examine the gutting of the Voting Rights Act by the Roberts court; but he doesn't.  It is tangential to his analysis, but still entirely relevant, even, arguably, central. Republican claims of voter fraud may have accelerated after 2000, but Holder put a rocket sled under them and actually gave them legal support.  Voter fraud, in fact, is the curtain, and the light and smoke show.  What is behind the curtain is what really matters.  That's where the wheels and levers that make the smoke and noise, are controlled.  It's still, in other words, the same old story:  fear of a brown planet.  Dave Chappelle and Chris Rock in the SNL "Election Night" sketch are still not surprised at what's happening.  And white people (by and large) still want to insist the problems are new and caused by "bad actors." I still say they are as American as violence and cherry pie.

The statement of Trump-supporter and attorney Rudy Giuliani is typical of the genre of unsupported, vague allegations. He told CNN’s State of the Union program during the 2016 presidential election campaign: “I’m sorry, dead people generally vote for Democrats rather than Republicans . . . . You want me to [say] that I think the election in Philadelphia and Chicago is going to be fair? I would have to be a moron to say that.”

Landslide Lyndon.  Sound familiar?  I came across this review of Robert Caro's biography of LBJ concerning the 1948 election he barely won ("Landslide" was a derisive sobriquet, like calling a tall man "Shorty".  Ironically, LBJ did defeat Goldwater in a landslide.  And there, many think, our national political troubles began.  I don't think it's even that simple, but I also digress....).  This passage in particular caught my eye:

I think Caro makes a persuasive case that Johnson manipulated and exaggerated his wartime military experience, used his political connections to obtain and to develop radio station KTBC in Austin and stole the victory in the 1948 Senate race. That would be enough to satisfy most investigative reporters or expose-minded authors. But Caro wants to write a morality tale, an epic of democracy betrayed -- and his ambition betrays him as surely as Johnson's conceit about bringing "one-man-one-vote democracy" to South Vietnam undermined him. 

Granted, this review is 32 years old, back when nobody was talking about democracy being fragile or so deeply endangered it might end (I've read more reasonable historical analyses that say FDR saved democracy during the Great Depression, which makes sense if you consider the despair of the time had no hope of relief.  We have to put ourselves in their shoes to understand that the future we know was hardly inevitable, or even visible on the horizon.)  I also remember historians in the '70's looking back on 1968 (King died, RFK died, the Democratic Convention in Chicago, the Tet Offensive in Vietnam) arguing that was a year that should have broken democracy, but didn't.  Are the events today really comparable to those?  Were the historians any wiser then than they are now?).  But it's interesting Caro, per this reviewer, wants to paint LBJ as a betrayer (almost a traitor, in the colloquial sense) to democracy.  Yeah, the same guy memorialized by Joseph Califano.  Machine politics (which is what won LBJ the nomination in '48, and probably the election) is old news in American politics.  You want to be upset by it?  Fine.  You want to denigrate it? Go ahead.  You want to tell me it was an existential threat (I hate using the term that way, but it's shorthand now) to democracy in America, I'm gonna laugh in your face.  Your gonna tell me it's so much worse now than it was then, I'm gonna tell you to lay your cards on the table.

Because you ain't holdin' so much as a pair of aces.

Everybody wants you to panic; it's the best way to be sure you do what they want you to do.  Me, I prefer sweet reason. Dare I say, it's what the "Founding Fathers" would have wanted?

Moving on.

The primary purpose of such voter fraud claims, at least until the Trump presidency, was two-fold: First, such claims served as the basis to pass laws, such as voter identification laws, aimed at making it harder for people likely to vote for Democrats to register and to vote. Second, such claims riled up the Republican base and helped with fundraising by convincing supporters that Democrats were cheating and did not legitimately deserve to serve in office. The claims fueled party tribalism and animus, convincing both sides that the other was trying to manipulate election outcomes. The Trump presidency moved the voting wars from a tired debate over the relative threats of voter fraud compared to voter suppression to a new level of delegitimation of the election process itself, raising the danger of election subversion.

I'd argue this is a distinction without much difference.  Making it harder for people to register and vote, and riling up voters with claims the "other side" are illegitimate and don't deserve to hold office, is a "delegitimation of the election process itself, raising the danger of election subversion."  The old ways just weren't working fast enough, so they tried some new ones.  And tried them primarily because Donald Trump refuses to recognize the legitimacy of the electoral process, becuase of his fragile, narcissistic ego. But then, every act of voter suppression recognizes the legitimacy of the elctoral process; it just wants to control it  for the same reasons "political machines" wanted to control it.  What's changed is not the telos; all that's changed are the methods.

And yes, we should oppose those methods.  But we shouldn't act like we just lost the keys to Paradise, and only now are we in the place of wailing and gnashing of teeth.  Better we take up the old Greek notion:  that chaos is the permanent state of things, and only by unceasing effort at control (through reason!) do we manage to contain it.  The forces of darkness, in other words, have always been with us and are always trying to control the system for their own purposes.  Just ask Dave Chapelle and Chris Rock. We don't help ourselves by exaggerating the threat or acting like these conditions are brand new and unique in American history.  If anything, dese are de conditions dat prevail.

Now do something about it.

Which is not to say Hasen is fundamentally wrong:

President Trump did more than double down. He pursued a political and legal strategy aimed not just at sowing doubt but also at subverting the outcome of the presidential election. This strategy, which has no precedent at any point in American history, had many parts, but the best evidence now available shows that this was less about saving face and more about reversing election outcomes.

It is without precedent in American electoral history, but only at the level at which it was conducted.  I'd argue, in fact, that the incumbent pulling these kinds of stunts, making this kind of effort to undermine the laws and the Constitution, was inevitable. It's been percolating in American culture ab initio; it was bound to reach the White House at some point. One of the primary tenets of American democracy is that every person is entitled to their opinion.  An extension of that argument is that every person is entitled to their desired political outcome.  When Rep. Boebert says the LGBTQ "crowd" can just establish "their own Florida," she's saying what many Americans think:  democracy entitles me to the government I want, and if I can't get it, it's because "you" have taken it away from me.  It's not because we should all reason together; it's because it's a zero-sum game, and if I don't win, I lose! The American electorate started out as solely white, male property owners.  The American Dream still, we are told, is to own property, i.e., a house.  White males still resent the fact they finally got the property, but they lost the control exclusive access to voting gave them.  They lost their chance to get the property and so get the vote, and they lost (again) their chance at power.

At least that's an explanation for how the Trump supporters see it.  The question is:  are they a voting majority, or not?  That's a far more pressing concern, IMHO, than what the law allows (or doesn't).  But the law is something we can change; American culture is practically immutable.  The best hope we have is to convince more people to vote.

As to Hasen's analysis of Trump's motives in that paragraph, I beg to differ, although I don't think my critique changes the outcome of his analysis.  I don't think "saving face" and "reversing election outcomes" are two different things to Trump.  Quite simply, Trump wants to reverse the outcome of the Presidential election.  Practically, he can't do that, and the most overlooked reason why not is that, to deny the validity of the votes for POTUS, we must deny the validity of all ballots so challenged.  That would unzip the elections all the way down to dog catcher in some places (Hello, Texas!).  Trump doesn't want to do that, doesn't care if it does that, doesn't consider that would have to happen.  All Trump wants to do is erase the word "loser" from his personal and public biography.  Granted my analysis is based on the same evidence Hasen has access to; neither of us are qualified to psychoanalyze Trump.  But I think my explanation is better than his.  Trump is like MTG asking Meadows to get Trump to impose "marshall law."  She doesn't know what the term means, or what she's asking (effectively a suspension of the Constitution and all federal laws related to Congress and federal elections).  She just wants to be sure her side wins.  Is she interested in "reversing election outcomes"?  Yes.  Does she know what that actually means, as Mr. Hasen does?  No.  I'm quite sure she doesn't.

Hasen's detailing of the facts preceding and following Jan. 6 is well worth reading.  I will note this presents a much more serious reason for concern than anything Judge Luttig wrote about on CNN:

The Georgia law was one of 216 bills across forty-one states that gave or would give partisan state legislators greater control of the election process over state and local election officials, according to a report by the States United Democracy Center, Protect Democracy, and Law Forward.  In Iowa, local election officials could face criminal penalties for sending an absentee ballot application to a voter unless first requested by the voter; in Texas, poll workers could face criminal sanctions for interfering with the activities of “poll watchers,” who can now engage in intimidation and interference at polling places. While many of these laws have provisions that might be seen as aimed at voter suppression, at least some of them appear geared to providing a path for overturning election results. Perhaps the most troubling bills introduced so far, but not passed, are those in the State of Arizona, which would have given the state legislature authority to ignore the vote of Arizonans and appoint its own slate of presidential electors upon flimsy allegations of election irregularities or for any reason at all.

He goes on to note how these conditions have lead to an unprecedented loss of election officials, which endangers election integrity.  There's no talking around that:  this is bad. The irony is that, following the unprecedented problems of the pandemic and lockdown, we had the most secure and well-run national election in our history (well, at least in a long time).  And now we are working hard to undo that progress. It's the old American two-step:  one step forward, two steps back.  We advanced with Brown v. Board; and now we barely pay it lip service.  We advanced with the Civil Rights Act and the Voting Rights Act; and now the VRA might as well be repealed.  We advanced in society in general on race issues; but now Colin Kaepernick and the suit against the NFL because it has no black head coaches, and shows no sign of ever having any, despite the majority of its players being black.  One step forward, two steps back.  Thus do we "advance."

So it goes.

Hasen provides a very interesting analysis of what could go wrong as the prelude to his recommendations for what should be done.  Because of the Lutting opinion, I quote this paragraph, which I'll put into context after:

 The argument that Article II and Article I, section 4 give state legislatures virtually unlimited powers over the rules for running presidential and congressional elections — even if their use means violating the state’s own constitution and ignoring its interpretation by the state supreme court — has come to be known as the “independent state legislature” theory.

Article II, Hasen points out, gives state legislatures the power to decide how presidential electors from that state are chosen.  A parallel provision in Art. I gives states the power to set rules for congressional elections, subject to override by Congress.  His definition of the "indepenent state legislature" theory is a bit more worrisome than Judge Luttig's.  In this context the theory also has its limits, because elections, as the courts also understand, are essentially the third rail of American democracy:

[M]ost disturbingly — a legislature might attempt to claim power to simply disregard the results of a popular presidential election and appoint a slate of electors reflecting its own partisan preferences. Such a step would be historically unprecedented, fly directly in the face of our democratic traditions, and likely destabilize the entire presidential election. Once a legislature has made the decision to award presidential electors based on a popular vote and the election has been conducted, it would be both unjustifiable and disastrous for the legislature to unilaterally decide to ignore the will of the people.

And yeah, it could always get worse:

Although the federal judiciary was largely unsympathetic to Trump’s baseless election challenges in 2020, this historical fact was contingent on judges maintaining some fidelity to judicial independence. Such independence is not guaranteed in the future given the fact that the President is in the unique position of picking who will adjudicate future challenges. While he was challenging the results of the 2020 election, President Trump seemed to publicly ask the Justices he appointed to rule in his favor as a sort of quid pro quo for being put on the bench. At a Hanukkah reception in 2020, President Trump told supporters: “All I ask for is people with wisdom and with courage, that’s all,” because “if certain very important people, if they have wisdom and if they have courage, we’re going to win this election in a landslide.” It is hard not to read this statement as being directed at Justices whom President Trump placed on the bench, like Justice Barrett. A future President may learn from Trump’s 2020 failure and seek to identify more explicitly partisan candidates for the Supreme Court.

But that outcome is not far removed from the nightmare scenario in the quote immediately above.  Would the Court be that obtuse, that clueless about it's responsibilities?  Maybe in dissent Alito would (Hasen notes the Justice indicated some support for the "ISL" theory in handling a Pennsylvania election issue in 2020, as the Justice of that Circuit).  But in responsibility?  Seems to me the very integrity of the judicial system would be ripped apart by that one.  And if it is, it comes back on we, the people; because we elected the clowns who appointed the Justices and judges, and the Senators who approved them.  We can't save democracy by destroying it, but we also can't put in place a failsafe that will save democracy from us.

I shouldn't just drop it there, but Hasen's proposals for remedies both legal and political really require a separate consideration.  I make no promises I will come back to it; but I will try.