Since election day, President Trump’s legal team, as well as surrogates and down-ballot candidates, have filed more than 50 lawsuits in state and federal courts challenging the conduct of the election in six swing states. The cases range from allegations of violations of the U.S. Constitution to the failure of local election officials to grant poll-watchers “meaningful access” to observe ballot-counting.
These cases have two things in common: (1) They have, to date, been uniformly unsuccessful, and (2) pundits, commentators, and some politicians have hysterically claimed the lawsuits undermine our democracy. Let’s take a closer look at that second claim.
Actions that undermine democracy are serious and should be taken solemnly. Preserving the grand experiment in freedom and self-rule that is America is the grave responsibility of every generation. So let’s see if that is what is going on here.
The Great ‘Witch Hunt’ of 2016
Traditionally, our court system resolves challenges to allegedly illegal or improper conduct, whether by private parties or public officials. Those who claim to have suffered an injury at the hands of another, whether the injury is physical, economic, or an infringement of protected rights, bring the case to independent courts to resolve. Our democracy has replaced the shoot-out at the O.K. Corral with litigation as the preferred means of resolving our disputes.
To appreciate the value of our judicial dispute resolution mechanism and its role in preserving democracy, one need only compare the 2016 election to the 2020 election.
Even before the ballots were cast in 2016, actors within federal law enforcement and intelligence agencies and contractors sought to secretly gather information on people associated with then-candidate Trump’s campaign. Claiming that certain campaign advisers were controlled by Russia, the FBI filed unverified and demonstrably false information in the secret intelligence court to secure surveillance warrants to review and monitor communications of certain Trump campaign associates.
Unlike Trump’s court filings in the challenge to the 2020 vote, these court filings were not public documents and were unknown even to the subject of the warrants. Later investigation established serious misconduct by senior federal law enforcement officials in securing these warrants.
After the 2016 votes were counted, Democrats, Never-Trumpers, mainstream media outlets, and their allies launched an all-out effort to obstruct the new administration and to remove the president from office. Hillary Clinton did not file public challenges in the courts; instead, she launched the resistance movement.
The Obama administration doubled down on its improper use of federal law enforcement powers to hamstring the incoming Trump administration. From setting up retired Lt. Gen. Michael Flynn, the incoming national security adviser, for a process crime, to renewing the improperly obtained FISA warrants, to embedding Obama loyalists in the federal bureaucracy, the Trump resistance hunkered down for the long haul.
None of these efforts, however, involved filing legal challenges in open court to be adjudicated by an established dispute resolution mechanism supervised by an independent judiciary. Instead, the Resistance relied upon the maneuverings of federal law enforcement officials to secure the appointment of a special counsel to investigate whether the Trump campaign “colluded” with Russia in securing victory in 2016.
This investigation consumed millions of dollars and more than two years to produce what the instigators knew all along: There was no collusion. Furthermore, no one associated with the Trump campaign was ever charged, much less convicted, of any offense related to Russia’s alleged interference in the 2016 campaign.
Trump complained long and loud about what he termed a “witch hunt,” but he also provided unprecedented cooperation in the special counsel’s investigation. His waiver of attorney-client privilege subjected his White House counsel, Don McGahn, to hours of interrogation by the special counsel’s attorneys.
At the same time, bureaucrat holdovers from the Obama administration’s national security team illegally leaked the substance of private phone calls between the president and foreign leaders in an effort to embarrass his administration and, eventually, to set up a partisan impeachment process that some had been urging since before he was inaugurated.
The Many Lawsuits of the 2020 Election
Fast-forward to 2020. As far as we know, Trump has not weaponized federal law enforcement and intelligence agencies to surveil, monitor, or hamstring the incoming Biden administration. He has not sent FBI agents to conduct a pretextual interview of high-level Biden administration potential appointees. His subordinates have not altered documents and filed them in secret courts to secure warrants to eavesdrop on people associated with the Biden campaign or the incoming administration.
Rather, seemingly following Clinton’s advice to Biden to “not concede under any circumstances,” Trump and others have filed complaints in state and federal courts, including the Supreme Court, challenging the manner in which some state officials conducted the election. All the pleadings and papers have been available for public scrutiny. All the legal arguments have been made in open court.
All the decisions have been rendered by judges duly elected or appointed to their positions as members of an independent judiciary. Appeals have been filed in some cases, and those have also been available for public scrutiny and inspection.
One can disparage the wisdom of the Trump legal strategy. Indeed, the litigation has to this point been unsuccessful — but at least it has been filed in open court. The pleadings, arguments, and asserted basis for the challenges have been open to public scrutiny. Unlike the outgoing Obama administration, the outgoing Trump administration has not used secret courts, intelligence community assets, and a politicized federal law enforcement structure to undermine the effectiveness of a new president.
To answer the question posed at the outset, yes, challenges to the outcome of elections can undermine democracy. The American people, however, are smart enough to determine what sort of challenges to election outcomes are the greatest threat to our democracy: legal challenges filed in open court or surreptitious challenges using politicized intelligence and law enforcement assets.
