The Election and the Rule of Law

By Mike Koetting October 8, 2020

I wrote the first draft of this post about three weeks ago. I was surprised at the number of friends who were at least flirting with the idea that, no matter what was the underlying will of the people, Donald Trump would simply refuse to recognize the results and chaos would ensue. I acknowledged there was concern, but I thought they were overstating the problem.

Things have happened since then. I still believe we will not fall into this tar pit, although my confidence ebbs and flows depending on the day. However, as much as the specific risks, I am alarmed at the broader consequences of the deterioration of public trust. At least one survey reports that half of the country believes Trump would refuse to accept a narrow defeat.

This is potentially catastrophic.

The entire idea of democracy rests on the acceptance that everyone is going to play more or less by the rule of law. The rule of law is not strictly speaking about the legal letter of the law. In fact, strict adherence to the letter of the law can be norm-busting, like the Republican’s use of the power to appoint a Supreme Court justice days before an election.

The rule of law is the overriding set of values that allows us to work together in a society to achieve common aims. The Constitution does not provide detailed instructions for how to keep our democracy. It creates a framework so that, even if we don’t agree on every single “law,” we have enough in common that we are willing to make compromises guided by some higher, more general principles. And we put the survival of the institutions of democracy over any specific policy advantage.

This idea works only as long as the society as a whole believes it is bound by the same ground-rules. If a large enough group stops believing that the rest of the society will abide by these general principles, the power of the rule of law dissipates. That so many people could be actively concerned about the legitimacy of the coming election suggests exactly this waning belief.

Today, one large group of the country suspects that Republicans are so determined to hold on to power that they will take any steps—regardless of how they correspond to the larger spirit of the country—that they have already forsaken the rule of law. Another large group either believes that the Democrats will take illegitimate and fraudulent steps to gain control of power—and therefore imagine the Democrats in violation of the rule of law—or they believe their cause is so important they are obligated to take every possible step to retain power, in which case the rule of law is nullified.

My concern here is not which interpretation is more valid. My question is whether we can get out of this situation with our belief in the rule of law intact. I don’t see either side giving up its beliefs easily. No one is in the mood for forgetting.

This adds to a worrisome time. The political scientist Suzanne Mettler identifies four conditions that often correspond to the break-down of democracies:

• Large and growing income inequality
• Extreme political polarization
• Conflict over who belongs as a member of the political community
• Centralization of power in the Executive

All of these seem to be operating full force.

Certainly a Trump victory makes it much worse. While there are multiple factors that have contributed to the loss of social solidarity, Trump has turned it poisonously toxic. This is not a matter of partisan disagreement. This is a core difference in the understanding of what is meant by democracy. Trump religiously believes that any winning is winning. In his world view there are the “takers” and “the taken advantage of”. He has no concern, possibly no clue, about the impact of this attitude on a democracy that depends on a generous rule of law. Disclosures about his tax returns illustrate the nature of the problem in technicolor.

If Trump wins in a disputed election, the degree of alienation will be off the chart. I don’t know what Democrats would do if, for instance, the election is resolved by the Supreme Court ending a disputed vote count on a partisan basis as it did in Bush v Gore. Or, as is more likely, through a series of piecemeal decisions that together swing the election by not allowing certain votes or voters.

With no court to turn to and Trump in the White House, there would be widespread outrage. The outlets for such outrage are limited, but would surely damage the foundations of our democracy. If nothing else, it would open the gates for Democrats to take whatever measure they could think of should they ever again gain power. While in some ways gratifying, that would not necessarily lead to a more perfect union. In the meantime, assuming Democrats held their majority in the House, the legislative process would completely grind to a halt and Trump would be even more unchecked.

The best hope for the rule of law is for Biden to win clearly, that is at least a one-half percent margin in any state necessary to get to 270 electoral votes. While that would not create national unity, it would at least replace Trump with a president who believes in the broader vision of the rule of law and sees his job as uniting the country around that vision. In theory, any Biden win would be a step in the right direction, but a narrow win would have less traction. Worse yet, there is reason to worry that it simply might not be possible for Biden to win an election where there are substantial disputes. (Prior to Justice Ginsberg’s death, I was reasonably optimistic that Justice Roberts would do the right thing if the underlying facts supported it. Now that his vote is not necessarily decisive, I worry that anything so muddy as to get to the Supreme Court will be decided on a primarily partisan basis.)

A Biden win would still leave a lot unresolved.  Even if Trump dutifully left office in January, it is hard to imagine he will just slink off to tend to his various legal battles. I am guessing he will continue to rail against “the socialist left”. He will still have many followers. Probably less the big money people who support him because of his largess to the rich; they will find new advocates. Big money is more insidious than water in your basement. But the hard-core Trump base will continue to abhor the Democrat’s agenda, which they see as restricting freedoms that represent values fundamental to their identity.

Republicans will have to decide whether their long run interests are better served by lining up behind Trump-centric obstructionism or by trying to find some ways to forge a post-Trump path that is better attuned to the changing nature of the country. Surely many Republicans know they are riding a death train. They can do the same arithmetic I can—their base is declining and their core product is unattractive unless it is disguised by endless efforts to divide the country. I doubt there is anything so crass that Mitch McConnell would skip if he thought that meant foregoing another trip on the Ferris wheel. But others may understand that there is no long run future in the current party strategy of cynical opposition to everything except tax cuts and radically conservative judges.

On the other hand, if they turn away from the Trump-base, there is no route to electoral relevance for years. That would also leave a material number of voters alienated from the American political system. It is hard to imagine the groups who stormed statehouses signing up for a new Republican party. It is not clear how large this group is, let alone how they might behave.

Democrats will also face some difficult choices about the extent to which they want to be accommodating to the concerns of people who voted Republican. Perhaps exercising the same hard-nosed approach of Republicans works better long run. But perhaps it just further rigidifies the gaps in our society.

At best the election is only the beginning of a long and uncertain process for restoring a real belief in the rule of law. But defeating Donald Trump is essential if we want to begin this journey.