Stop the Coming Election Crisis
Safeguard the 2020 Election and the Constitution by Doing More Than Just Voting Against Donald Trump
For all of the talk about a “constitutional crisis” that has swirled around the Trump administration these past several years, an electoral system increasingly under challenge in conjunction with the passing of Ruth Bader Ginsberg has now indeed brought us to the brink of such a cataclysm in a way that is going to require citizens to act and use every legal means available not just to maintain the health of our electoral processes, but of our constitutional ones. The specter of a President refusing to commit to conduct the election nonviolently or to accept its results, or to even to assure a peaceful transition of power; in conjunction with a Supreme Court split 4–4 or else tilted with a fifth and deciding vote as the election arbiter, is akin to two baseball teams vehemently arguing the calls in the last inning of the World Series only to suddenly find that the umpire is having a heart attack.
As unbelievable as it may be to many Americans, not just the impartiality but the very primacy of the Supreme Court as the final arbiter of the legitimacy of an election that was already being questioned could come under challenge if the Trump administration projects into the electoral process its unitary executive interpretation of Article II of the Constitution, which as John Dean has explained, “in its most extreme form … can mean that neither Congress or the federal courts can tell the President what to do”.
What must not be lost in the frenzy of the moment is that although we have weathered severe challenges in the past (economic depressions, world wars and pandemics) we have NOT done so with an attitude of “everything will be okay, it can’t happen here because our constitutional system will save us.”
Our Constitution has steered us in the right direction before because we have rolled up our sleeves and USED it as a guiding compass.
While Dan Coats’ idea for a bipartisan commission to oversee the election (especially now with Bernie Sanders’ endorsement) is a proposal around which the two parties should coalesce in order to provide legitimacy regarding its fairness, we all need to take still another step back from our partisanship by reaffirming a principal that has served to bind our many factions for centuries: that the Supreme Court, regardless of how incapacitated or tilted it may be from one generation to another, or even from one moment to the next, is our ultimate “umpire”.
Republicans and Democrats fighting between themselves politically over Amy Coney Barrett’s nomination would not be a direct assault on the Constitution intrinsically. What would amount to such an assault would be for either party to use that nomination or some other pretense to thwart what is now almost certain to be a long and messy election from playing itself out through the judicial system; not primarily regarding its outcome, but more importantly concerning the electoral PROCEDURE.
If Democrats indeed respond by adapting a “scorched earth” policy regarding Barrett’s nomination they should do so in PHASES, with each stage being applied with the intent of giving the Republicans a chance to back away from the political precipice before they tumble the nation over into a constitutional abyss.
Independents should LOUDLY add their voices to support Democrats in their endeavor to leave Ginsberg’s seat unfilled (or at least demand that Barrett recuse herself from decisions regarding the 2020 electoral process) by making it clear that Republican attempts to tilt the Court so close to an election — especially THIS one, with all of its complexity and turmoil — will have a SIGNIFICANT AND SIZABLE effect on their votes not just going into November, but also far beyond.
However, something else should have an even LARGER effect regarding how undecided voters should cast their ballots:
Democrats and Independents should ask themselves who they want “calling balls and strikes”: Chief Justice John Roberts at the helm of a less than perfect legal system; or Donald Trump armed with unilaterally assumed authoritarian presidential powers?
What could be worse than a contested election arbitrated by a Supreme Court with a vacancy — or with a vacancy filled by a President and party which tilted its outcome?
Worse would be President Trump using the chaos that already existed regarding this campaign and now amplified by Justice Ginsberg’s death to use force (or to “wink at” violence by others) to affect the election process or its results; or to attempt to (even “temporarily”) remain in office under the guise of a state of emergency.
There needs to be an explicit rejection of the Trump administration’s interpretation of Article II so that all parties, including the President, are bound into accepting the outcome of the election as it ultimately plays itself out through the electoral process.
That a President can ignore or “set aside” a court ruling — which would make him or her superior to the judicial system — has been suggested by some in the administration regarding extreme conditions such as states of emergency the President might declare, particularly under the Insurrection Act.
Republicans must reaffirm that the Supreme Court can ultimately “tell the President what to do” regarding matters that are brought before the court system by Congress or other entities.
But a few reflexive “assurances” to the public from the Republican leadership that “it will all be okay” (as were made immediately after Trump refused to commit to a peaceful transfer of power) must not be taken as an adequate “rectification” of the problem. Donald Trump has repeatedly “changed his mind” in order to advance whatever is in his self-interest at any moment, and the Republican Party has cravenly changed its mind (and “principles”) with him. The Republican establishment must not be allowed to hide behind such banal platitudes.
Rather, it must be made clear by the people themselves that neither the executive branch nor the President specifically rank higher in our constitutional hierarchy than the judicial system.
Politicians need to be held to severe accountability in other ways by the citizenry so that they have no leeway with which to equivocate regarding adhering to this constitutional principle and so that they will proactively resist any attempt by Donald Trump to “set aside” a judicial ruling or to invoke emergency powers — especially in the void of what he might label as an “incapacitated” Supreme Court.
Regardless of whether or not politicians rise to the occasion and lead, we the people as individuals and through our civil institutions have options to make them follow.
A recent petition against a replacement for Justice Ginsberg being chosen before the election drew nearly half a MILLION signatures ON ITS FIRST DAY.
We can similarly sign The Pledge to Safeguard the Election in order to get office holders and seekers to commit to abide by the results of the 2020 election and make irrelevant the need to even QUESTION whether or not Donald Trump will “accept” a peaceful transfer of power.
If politicians are too entrenched and entrapped within a broken Washington political system to do what’s necessary to ensure the integrity of our elections and constitutional order, we the people can compel those politicians to sign both The Pledge to Safeguard the Election and The Pledge to Safeguard the Constitution and then hold them accountable through this election and just as importantly through SUBSEQUENT ones by effectively “primarying” them and/or subjecting them to third party challenges.
It is too often tritely said that “this is the most important election of our lifetimes”, that “our children’s futures depend on what we do” or that America is a “young, fragile democratic experiment.”
The United States is much more than a “fragile young experiment.” It is an advanced democracy whose institutions of checks and balances require constant fostering.
We Americans must rise above the rhetorical pablum that the political establishment routinely feeds us and wake up to the fact that we potentially ARE heading into an electoral and constitutional crisis; and that our laws and institutions are strong enough to prevent a stolen election or an authoritarian President if we USE them to guard the integrity of our system of self-governance — not just by voting for or against Donald Trump, but by also vigilantly safeguarding our constitutional processes by following through after the election to limit presidential power with the confidence and maturity with which we as a nation are capable.