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.