Election lawsuits are nothing new in the United States, but President Donald Trump’s legal action and refusal to concede are bordering on unprecedented territory.
While the legal remedies he seeks, which include the disenfranchisement of millions of voters in Pennsylvania, are highly unlikely to change any outcome, these lawsuits remain a concerning threat to the future of America’s democracy and its next administration.
The most famous election-based legal action stems from 2000’s Bush v. Gore, which was markedly different from Trump’s claims of mass voter fraud in several significant ways. Bush’s case dealt largely with recount procedures in one state that was decided by a razor-thin margin, and he had legitimate legal questions that were adjudicated by the Supreme Court. Trump’s suits, on the other hand, have been almost universally dismissed as frivolous or without standing, as he has thrown numerous accusations across a multitude of states with little evidence and weak legal arguments. Bush’s case was specific, isolated, and brought during one of the most competitive elections in history. Trump’s challenges are broad, far-reaching, and largely incapable of even passing threshold issues such as standing and mootness in states decided by thousands of votes, rendering the two cases incomparable. This distinction, while critical in determining that Trump’s lawsuits do not have the potential to change the outcome, is not apparent to many of the President’s supporters, however, which has potentially dangerous consequences for democracy.
Trump has conveyed the impression to his base that the American electoral system is rigged, and the public perception that the Supreme Court decided the 2000 Election could lead his base to believe that the courts are also part of a conspiracy against Trump if they do not change the outcome. Undermining faith in key pillars of democratic systems and attributing electoral foul play to the opposition play directly into the fears that explain why voters knowingly support candidates who engage in anti-democratic behavior.
Professor Milan W. Svolik’s writing Polarization Versus Democracy discusses that in highly polarized societies, like the U.S. today, voters are willing to support candidates who undermine democratic institutions if it aligns with their partisan interests. This cost-benefit calculus, which forces voters to choose between democratic ideals and policies they abhor, is unhealthy and feeds back into polarization. Trump’s refusal to concede and continuing to attribute defeat to a system “rigged” by Democrats will stoke the flames of affective polarization and lead his base to question the very foundational base of America’s democracy: its institutions.
These election lawsuits may not change who will sit in the Oval Office, but their consequences for both the incoming Biden-Harris administration and the long-term health of the nation as it enters what should be a time of healing. Trump has allowed at least the beginnings of a transition, but his endgame when all his possible legal avenues are exhausted remains to be seen. Whether his purpose is maintaining an image in the eyes of his base for a potential 2024 run or if he has kept the fight going as a matter of personal pride, the outcome is the same. Even if there was no evidence of voter fraud, Trump giving that perception to his base of support still casts the same doubt on time-honored democratic institutions.
Trump has challenged norms at every turn during the course of his presidency, but it could be his public and visible attacks on the American electoral system that have the greatest impact for the future. He may no longer be in office, but his style appears to be set to remain in the minds of American voters for years to come. Openly questioning the election results with accusations of widespread voter fraud on a national scale, with such little evidence, puts such rhetoric into the range of what is acceptable for candidates. This is unprecedented in the history of American elections, but if it continues to be a part of the political mainstream, it could easily have harmful effects in the long run.
To conclude, Trump’s cases do not have the legal merit to warrant any serious review that could impact the outcome of the 2020 Presidential Election. There are sharp distinctions between his case and that of former President George W. Bush in 2000 that make the two effectively incomparable, and he has at least showed a private willingness to allow the start of a transition to President-elect Joe Biden’s administration. Nevertheless, his lawsuits and refusal to publicly concede undermine faith in both America’s electoral system and courts. This will have damaging consequences for the future, including increased affective polarization and diminished trust in two central tenets of American democracy, which could give way to further democratic backsliding in the years to come.
I thought this was a very well written analysis of President Trump’s actions in the past month. In a democracy, electoral institutions are among the most crucial and safeguarded foundations essential to the entire political system. Elections in the United States have been widely free and fair, and without scandal and controversy, save for the aforementioned “hanging chad” incident of 2000. Anytime these institutions are called into question, whether at local, state, or federal level, allegations typically have substantial evidence. This has not been at all the case with the baseless lawsuits trumped up by the President and his administration. In an age where misinformation and disinformation runs rampant, notably on social media, these claims and rhetoric become dangerous to democracy. While it does appear that there will be a peaceful transition of power, I fear that trumpism will linger for years to come, not just here in the states, but abroad. Political polarization brought on by his tenure has led to the outright refusal and denial of objective truths, including election results. A democracy is only as strong as the faith that citizens have in it. The precedent set by this administration jeopardizes American government in the future, as it has broken numerous democratic norms and has left a trail of authoritative tendencies. What is to become of America if future candidates follow this trail? Gone are the days of objective truths. The United States electorate is no longer just divided by political ideology or socioeconomic status but by perception of reality.
J.C.– I think you make a very compelling argument about how Trump’s lawsuits pose a real danger to the integrity of the electoral process and American political institutions, despite the fact that they all lack a strong legal basis. I agree with your claim that the main point of Trump’s lawsuits is to undermine his base’s “faith in key pillars of democratic systems” rather than nullify enough votes to give him a competitive advantage over President-elect Biden, especially because his legal team has openly admitted in court that their cases are not about election or voting fraud, but small complaints such as being denied access to observe vote counting and signature verifications. I do think, however, that you could make a stronger claim about the threat of the Trump administration filing multiple lawsuits to discount legal ballots and refusing to begin the transition process. You call his actions “bordering on unprecedented territory”, but Trump’s behavior– over the past four years but especially during this election cycle– goes well beyond unprecedented territory for an American president; every other US president has complied with the historic peaceful transition of power and for the most part, publicly supported the actions of other government institutions. At the time I’m writing this comment the administration has finally agreed to begin the transition to the Biden administration, but like you predicted, much of Trump’s base still denies the legitimacy of the Biden-Harris adminstration.
Trump’s behavior post election has been very interesting to follow. I really appreciated your comparison to the Bush versus Gore election in 2000. Although Bush’s case did hold some merit, even more interesting was Gore’s reaction to the eventual loss. Gore was obviously disappointed with the results and with the recount, but regardless, he still believed in the institution enough to concede. Gore was able to understand how important a peaceful transition of power is in a democracy. I agree with you with the idea that the recount in Florida was legitimately necessary, whereas Trump’s challenges are indeed broad and do not hold much merit. We have already seen some failures in his recount demands- including Wisconsin which was just officially determined this week. In addition to your points about Trump actively working to convey the message that the American electoral system is rigged, I would also argue that he worked to set up this narrative for months leading up to the election. He encouraged his voters to vote by mail, claiming that Democrats were trying to rig the election in their favor with an influx of absentee and mail in ballots. I also really appreciate your points about how the results of Trump’s lawsuits are not the major problem- it is the fact that he is encouraging American citizens to question the legitimacy and authority of a very free and fair election. It is the symbolism of democratic erosion- there was nothing wrong with this election, but he is working to challenge this in any way that he can. It does not seem to matter to him that the results are not in his favor and his cases do not have any legal merit. Whether it was his intention or not to damage the integrity of the transfer of power, his lawsuits and demands for recounts are doing so.
Following Trump post loss is quite the roller coaster. He and his allies have filed (as of today) a minimum of 32 lawsuits regarding results. 22 of them have been dropped or lost and the remaining 10 are pending. However, he has only filed suits in the battle ground states that he lost. More specifically these suits were aimed at the county levels where he lost. Basically, if he won the area or district, then it was obviously fair. But, if he lost an area then it is very fishy and needs further inspection. That seems odd to me, only checking up on losses. If he truly beloved that the system was “rigged” against him, wouldn’t a reasonable person want to look over the entire institution? To me this says that he believes in the system as long as it works for him, unlike Gore in 2000. Because, we saw Gore lose a very odd and mishandled recount of Florida results. He (Gore) had every right to think the whole system was against him, but all he did was ask for a recount, lost it, and conceded. By conceding he acknowledged that he believes in the system, even when he loses. Conversely, time and time again Trump has proved that he is different in every facet of being president. He is almost hindering the early goings of Biden’s campaign, which just can not be fair to him, his party, and the American people. He does not believe in the system, nor the people, only what he wants and how he wants it. His refusal to accept results and continue to try and fight them day in and day out threatens the integrity of elections in the US. If this were to become a trend with all losing incumbents, how could we transition power properly. In the most extreme circumstance, what if power doesn’t get transferred? Has our democracy slid more and more from right under us?
I enjoyed your take on the President’s actions post-election. I think the comparison to Bush v. Gore provided a great comparison to a scenario where legal action was warranted and important during an election. Something that was not mentioned that I believe contributed to the post-election lawsuits is the issue of COVID-19. States had to make adjustments to the election process that were unprecedented. There was a lot of room for criticism in each state’s individual process that drew a lot of media attention, especially in key battleground states. I think it would be beneficial in this type of situation to have federal standards for elections that all states had to follow. Allowing states to have their own voting laws is inconsistent and can cause a lot of issues as seen in the 2020 election. If all states had the same procedure, it would be easier to identify if there were actually problems that occurred. In 2020, the biggest problem was regarding mail-in-voting. The country was very split on this issue and some felt that it would be an opportunity for voter fraud. All states handled mail-in-voting differently, and the amount of counting that had to take place after the election contributed to the tension in the country. I agree that the President’s lawsuits will most likely ineffective, I do think this scenario could have been avoided by certain electoral safeguards. I think this election will definitely have an effect on future electoral procedure. As controversial as the lawsuits are, I think that most politicians acknowledge how dangerous this can be and will refrain from doing the same thing in the future without good reason.
Hi, J.C. I completely agree with your argument and would like to provide it some additional support from the last few weeks since you published it. Beyond Pennsylvania, President Trump has made a concerted effort to overturn the will of voters in both Michigan and Georgia. In Michigan, the President has not only lost every one of his lawsuits, but he has also invited state representatives to the White House to try and get them to usurp the will of the people and substitute their own judgement in giving the states electoral votes to President Trump. In Georgia, the President heartlessly called to berate Governor Kemp just hours after the death of a dear family friend, fellow UGA student Harrison Deal. The President is asking Governor Kemp to call a special legislative session to overturn President Biden’s victory in the state. This comes after his attorney Rudy Guliani testified in an enclosed hearing room for seven hours while COVID positive just last week. The President’s rhetoric poses a serious problem for Senators David Perdue and Kelly Loeffler, who are relying on big Republican turnout in the January 5th runoff. When Trump campaign representatives are undermining faith in the election, what is the incentive to get out and vote?