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.
as long as DEMS straddle allegiance to the oligarchs, and refuse to fight like it counts, Gop will thrive. Accountability right now is lacking even as we are in the cusp of neutralizing McConnel. Why isn’t Obama camped in Georgia now to deploy his formiddable influence to asdure GOP senate defeat? Arrogance & laziness characterize our continual habit of snatching defeat from the jaws of victory. We should march through Georgia now like Sherman, burning down all Gop henchmen.
Why would you want to “neutraliz[e]” Senator Mitch McConnell? Is not his voice just as important as any other voice?
Why are you calling for violence by calling for a march such as Sherman’s with burning of anything let alone anyone? Can we not have discord and dialogue without threats of violence and murder?
President Obama is currently acting as a capitalist and promoting his book to earn money for his portfolio, so why should he camp “in Georgia…to deploy his formiddable (sic) influence?”
Your comments are indicative of a two party system. Not all issues have to be partisan with only one side versus the other. There is a spectrum of views and they should all have a voice.
This is the shameless pursuit of power over principle, patriotism and the general welfare.
Your statement is accurate, but do you realize that it can be taken to support both “sides?”
I have voted for Republicans many times in the past, but never again. The party has de-legitimized itself. Maybe a third party of center-right, honorable people can rise to take its place. This groundswell will have to come from the lower ranks, though, because our Republican national “leaders” have shown nothing but pathetic, craven cowardice, and pure contempt for the American people.
Dr. Thomas,
You make several claims in your posting which I question the basis behind.
Firstly, you state, “President Trump is willfully engaged in tearing down America’s constitutional institutions for his own benefit.” You make this statement but provide no evidence of such. Just because you disagree with his lawsuits does not mean that they are simply for his benefit. You could make the claim that all lawsuits are made for the benefit of the person bringing the suit. There is reason, however, behind the Trump lawsuits that suggest that are for the benefit of the American public to highlight voter fraud and voter impropriety. Additionally, these lawsuits are not for or to his benefit, because they are bringing more vitriolic criticism towards his brand.
Secondly, you state that “Republicans have indulged Trump’s anti-democratic and anti-constitutional impulses”; however, you again do not support this statement. What exactly has President Trump done or is doing that is “anti-democratic” or “anti-constitutional”? It is your right under the First Amendment to make these statements; however, you should in an academic writing or op-ed support these statements with facts. Otherwise, they are nothing but statements of your opinion. And yes again you have the right to your opinion, but they are not facts without support.
Thirdly your claim that the Republican Party is “an anti-democratic party willing to indulge a soft-authoritarianism” again is unsupported in your article/essay. By making this statement you have turned your “essay” in to an op-ed. Again, supportive facts would be helpful.
Fourthly, both Sidney Powell and the Trump legal team have stated that Ms. Powell was never part the the Trump legal team. As such, your statement is inaccurate.
Fifthly, your statement that Republicans and Trump supporters have “called for violence in the streets” is unsubstantiated, and again a statement that you make without support. If there are any calls for such action, they are from a fringe source and not that of the mainstream Republicans just as calls for violence from the left are also mainly from fringe sources.
Lastly, you and your colleagues freely use the word “illiberal”; however, I am not sure if you really understand the meaning of the word outside of the academic setting. According to Merriam-Webster it means: “not, broad-minded; bigoted” and according to the Oxford Dictionary it means: “not allowing much freedom or opinion.” I grant you that there are illiberal elements of all aspects of society, but why do you state that the Trump administration and the Republican Party are illiberal? Although there might be individuals within these organizations that are illiberal, but that does not make the entire organization illiberal. If anything, your suggestions are illiberal and do not permit for views that disagree with yours.
As a society we should be able to agree to disagree. We should be able to have civil intercourse or discourse without turning to vitriol. Unfortunately, we as a society are far from this and Dr. Thomas your article only goes to push us further away from civil dialogue.
Trump’s lawsuits did not demonstrate any voter fraud. How many times do you have to read or hear it?
The elections in each state were within the margins allowing for the winner to be declared and were the most scrutinized and transparent ever.
Biden was elected. Period.
Trump and admin have ignored subpoenas, trump has circumvented congress and engineered the DOJ (and he believes the SCOTUS) to do his own personal bidding.
I could continue, but what more do you need?
Despite your eloquence you seem to be in serious denial.
None of this is normal
Despite “your eloquence” you do not understand punctuation and capitalization. All sentences should end with punctuation.
The lawsuits are still in process, so I do not “have to read or hear it.” There is a process that needs to play out. It should not be called until that occurs. If there was voter fraud to any extent, it needs to be investigated and litigated. I want clean and free elections without corruption. We obviously have differing opinions, however, I would hope that you would wish for the same.
I believe every election, since the inception of elections, has some component of fraud. Unforntaley, this is human nature.
I am not in denial to any aspect to which you are speaking.
As I have stated, news organizations do not get to call elections. Elections are called this year on December 14, 2020 when the Electoral College votes. News organizations “calling” elections is a fantasy.
I wish that you would read my entire post and comment on the omissions that Dr. Thomas did not support.
I can easily see the Democrats taking this playbook and never giving up presidential power again on the basis of popular vote totals for president. The Republicans are make a grave error in setting a precedent.
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