Ned Foley: The Election Law Implications of Trump’s Acquittal

The following is a guest post from Ned Foley:

What are the consequences of the Senate acquitting Trump from an election law perspective—the perspective, in other words, of protecting the electoral process in the future?

It depends, most basically, on whether or not Trump wishes to run again in 2024.

If he doesn’t, you can make the argument that the system will be safe from his unique danger to it, his uniquely narcissistic belief that an election can’t be fair if the vote count shows him losing.

On this view, any Trumpian protégé as the GOP nominee next time—be it Josh Hawley, or Ron DeSantis, or whomever—won’t present the same existential threat to “we the people” and our collective constitutional right to self-government that Trump does. Any of them would presumably accept the verdict of the voters, and not attempt a repetition of the “Big Lie” myth of a stolen election, and thus not be inherently toxic to democracy like Trump.

But you can argue this point the other way. It is often feared that Trump 2.0 will be a shrewder demagogue that Trump himself. Hawley, in other words, would be more successful in sabotaging the electoral victory of his own opponent than just making a symbolic challenge to President Biden’s win on behalf of the Trumpian base.

Rather than debating this unanswerable question, let’s agree on at least this: the Electoral Count Act of 1887, the statute at the heart of the congressional procedure for the January 6 session that was the object of the insurrection, must be amended to make unambiguously clear that no coup-like challenge to a candidate’s Electoral College victory is ever permissible, regardless of what party perpetrates the challenge and for whatever purpose.

Once an Electoral College win is set in the states, as Biden’s was, it was final for all congressional purposes, as Mitch McConnell and Liz Cheney properly understood. That understanding must be recodified in twenty-first century statutory text, replacing the impenetrably dense nineteenth-century verbiage of the 1887, and set in stone, so that nothing like January 6, 2021 is attempted again—not four years from now, not ever.

More must be done than fixing just one statute. We are already seeing a multitude of efforts undertaken by Republicans around the country to make it more difficult for Democrats to win, a motive that some GOP officials openly acknowledge. It has long been commonplace to observe that Republicans, as a party, have become ideologically opposed to free and fair elections.  If this is true, the danger to the future of American democracy is far greater than Donald Trump.

But we should be cautious with this diagnosis and whatever cure might follow from it. A healthy two-party system of electoral competition can’t exist if only one of the two parties is committed to the enterprise. So, if Democrats believe that Republicans have given up on their shared project of self-rule, what then?

There’s a philosophy ascendant among progressives that, if only the Senate would abandon the filibuster, Democrats can put in place an entirely new electoral system that will guarantee free and fair elections for the foreseeable future.  If there were actually the votes to jettison the filibuster, it would be an interesting experiment to see if this theory worked.

I’m dubious. How is it that one political party in two-party system can impose its own vision for running elections over the objections of the other party and expect the result to be successful? “You must play the game of electoral competition by our rules,” Democrats would be telling Republicans. “You don’t get a say in how the game is played, because we don’t trust you to play fair.” That doesn’t sound like a recipe for Republicans agreeing to playing the same game at all.

We must remember that the Voting Rights Act of 1965, our nation’s most important election law, was the bipartisan product of overcoming a filibuster, not one party’s unilateral decision to eliminate filibusters. It will be hard work and will require compromise, but the most pressing need for protecting American democracy—made more urgent because of the Senate’s handling of Trump’s second impeachment—is for Democrats to work with Mitch McConnell and Liz Cheney, who at least have a conception of a free and free election, to hammer out a set of bipartisan reforms that will resuscitate traditional two-party competition with both teams accepting the system’s premises and being willing to play by its rules.  As I’ve already indicated, I would put eliminating gerrymandering at the top of that list.

Okay, so now what if Trump does want to run in 2024? There’s the chance that his own legal and financial problems will prevent him from even being a viable candidate. But if he makes a serious bid for the Republican nomination, let’s hope the GOP still has enough soul to repudiate the man who left his own Vice President, Mike Pence, at the mercy of the mob.

Otherwise, there will need to be schism along the lines of 1912, when Teddy Roosevelt mounted a third-party candidacy.  The responsible center-right of American politics must offer its own alternative to the Party of Trump, if and when it comes to that.


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