George Thomas is Professor of American Political Institutions at Claremont McKenna College and a regular contributor to The Constitutionalist. For more regarding Thomas’ work, visit or Regular Contributors page.
In the election of 1800, President John Adams stepped down from office after losing to Thomas Jefferson in a bitterly disputed contest. It is often hailed as the first peaceful transfer of power in history. In a strikingly different first, President Donald Trump is violating this cardinal norm of a constitutional democracy by actively attempting to overturn a free and fair election.
President Trump is willfully engaged in tearing down America’s constitutional institutions for his own benefit. With no evidence, he is advancing wild conspiracy theories, insisting the election was fraudulent, and proclaiming himself the winner. He may well believe half of what he says. President Trump has no idea how American political institutions actually work. Certainly, his insistence that the Supreme Court intervene on his behalf—and that “his” Justices seize power for him—reflects this state of mind. It’s just as likely he has no idea how voting within the states works. None of this is particularly new. Nor is it shocking if you’ve been following along for the last five years.
Yet Trump is not the central problem: The Republican Party is. With a few honorable exceptions, most notably Senator Mitt Romney, Republicans have indulged Trump’s anti-democratic and anti-constitutional impulses. Some have actively embraced them. Others sit idly by, indifferent, while he transforms the Republican Party into an anti-democratic party willing to indulge a soft-authoritarianism to overturn an election. President Trump’s lawyer, Sidney Powell, insists that Trump won in a landslide, but a far-flung conspiracy that includes honorable state level Republican office holders subverted the election for Biden. Powell’s claims are so bizarre that she’s been publicly disassociated from Trump’s legal team. Still, the GOP’s official Twitter account tweeted Powell’s claims. And Trump himself has been tweeting such nonsense non-stop since election night, with the lunatic nature of his claims escalating to include the DOJ and CIA.
Segments of the Republican party have been making unsubstantiated claims of voter fraud for years, often in efforts to limit the voting rights of Black Americans. But the 2020 election is something altogether new. Republicans are indulging a constitutional coup. What else to call it? A soft coup? A stupid coup? Whatever you call it, it is a corrupt effort to sow doubt and confusion in order to overturn the constitutional rules of the game.
I’m not talking about the lawsuits Trump and other Republicans filed shortly after election night. Candidates ought to be able to bring valid complaints in court where they have a legal right to offer evidence of legal wrongdoing. Even claims that won’t alter the election outcome can be beneficial in making the obscure electoral process transparent. But the suits, nearing forty with only one minor win, have become frivolous. In court, Trump’s personal lawyer Rudy Giuliani admitted he was not making claims of fraud because he had no evidence of fraud. Trafficking in allegations and theories that will clearly not prevail in courts of law, the strategy is to manufacture the appearance of electoral chaos, which then provides cover for at least three Republican controlled legislatures in the battleground states to appoint presidential electors for Trump. It won’t work given President-elect Biden’s clear wins in several battleground states, but it may well provide a blueprint for those who would undo the results of a close election in the future.
This con begins by pointing to constitutional text. Article II of the Constitution, which sets up the selection of electoral votes within the states, commands: “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress.” The Constitution gives the state legislatures the power to direct the selection of electors. So why not have Republican state legislatures in Pennsylvania, Michigan, and Wisconsin directly appoint electors for Trump?
Because such a move would quite literally violate the law. The states have already chosen how their electors will be selected: by a popular vote within the states. A popular vote within the state is the “manner” in which these state legislatures directed how their electors would be appointed. Under state law, the winner of the popular vote has their electors “appointed.” And federal law reinforces state law on this point. The only exception being when a state has not made a clear choice. But the voters in each of these states have made a clear choice: Biden. Neal Katyal offers an excellent explainer on all of this.
Nothing in the Constitution justifies substituting the clear choice of the voters as determined by the various state laws with the choice of the state legislatures. Such a move is at odds with state and federal election law. So, too, is the pressure President Trump and his allies are placing on Republican officials to actively alter the election results.
Yet with the exception of courageous state officials like Brad Raffensperger, Georgia’s Republican Secretary of State, and Aaron Van Langevelde, a Republican member of Michigan’s canvassing board, most Republican officials are unwilling to speak up against Trump’s claims of a stolen election. They are willing to let their voters be lied to and misled with sordid conspiracy theories, as they indulge crackpot lawyers and political theorists. Senators Ted Cruz and Lindsey Graham, who once denounced Trump as the demagogue he is, are now spinning lies about a stolen election.
The Republican Party is disowning the American experiment in democratic self-government. And they are empowering the illiberal elements in the Republican Party and conservative circles who are all too willing, in defending Trump, to dispense with the American Constitution. Trump’s tawdry intellectuals started down this path within days of the election. They’ve called for violence in the streets to bring this about. It’s all justified because the alternative—a Biden presidency like the possibility of a Clinton presidency—will, somehow, end America.
In a special message to Congress delivered on July 4th in 1861, President Abraham Lincoln insisted the great challenge facing America was whether we could maintain popular government “against a formidable internal attempt to overthrow it.” It may be overwrought, but that is the challenge we face. And Lincoln insisted that what ballots “have fairly, and constitutionally, decided”—the election in this case—cannot be appealed “except by ballots themselves, at succeeding elections.”
The effort to undermine what ballots have legitimately decided is what makes our current moment so dangerous. This is the moment for sober minded Republicans to step up. If you cannot stand up now—as fellow Republicans are engaged in an effort to steal the election—when can you stand up? Do Republicans have the courage, and the wit, to understand the precedent they are setting? Republicans are indulging lies deliberately manufactured to undermine their fellow Americans faith in the electoral process.
We can take heart that judges—including judges appointed by President Trump—and state officials have acted with integrity in following the rule of law. But this moment has also revealed how vulnerable our institutions are. We like to think these things can’t happen in America. But they are happening. It just happens we got lucky this time. Unless we act to shore up our political institutions—and reaffirm our commitment to free and fair elections that provide for the peaceful transfer of power—our luck will eventually run out.