We have reached the point at which there is no reason to frame the 2020 elections in terms of “politics.” There is not even really a reason to think of this in terms of “voting.” While it is comforting to think that Nov. 3 will simply come down to which side gets out the vote or who phone-banks or postcards most effectively, it’s also the case that so much of the apparatus of voting is newly unrecognizable this year. The ways we vote have changed, due to COVID and federal interference with the U.S. Postal Service. What will be permitted as “poll watching” has now changed as a result of an expired 1982 consent decree that prohibited Republicans from harassing and intimidating voters on the way to the polls. And the ways in which votes are counted and tabulated have changed due to well-funded and systematic efforts throughout the states to reject ballots that have been cast in minority precincts and Democratic strongholds, under bogus claims of fraud. Also, the ways in which the Justice Department ordinarily comports itself in advance of a federal election has also been quietly changed, with Attorney General Bill Barr already making false claims about mail-in ballots and cheerfully helping to midwife an October surprise.
Despite heroic efforts by voting rights lawyers who are killing themselves to expand and protect the franchise, the fact remains that so much of what has functioned as an elections system in the United States has functioned because of a fundamental national compact of acceptance, if not good faith, that allowed us to make the best of a flawed, decentralized, and inherently unjust system. With a handful of egregious exceptions that forced us to really look, the nation has largely maintained the tradition of agreeing that, despite the fact that the elections system has never truly been free or fair, and has certainly never been structured to allow everyone to vote or for every vote to be weighted equally, everyone would nevertheless squint a bit, and shrug a bit, and come together to conclude that someone had in fact won, someone else had lost, and that for the good of the nation, some kind of an orderly transition of power should follow. But that collective agreement—much like the fact that presidents do not accept foreign or domestic emoluments, or the fact that Cabinet members don’t give convention speeches, or the fact that the president doesn’t use the White House or the Washington Monument as campaign props—was always more of a norm, even if it was carved into the Constitution or required by statute. And just as the norms around presidential behavior have collapsed in the past three years, so too have the norms around elections. What emoluments clause, they can shrug, three years after we committed it to memory? What Hatch Act, they can claim? This president is just different.
Yes, he is indeed different. Franklin Foer noted this week in the Atlantic that this administration has declared an all-out war on politics. As he observes, “Although [Trump] goes through the motions of pursuing an outright victory, much of his rhetoric is now focused on discrediting the political process itself. He disparages the rules that govern politics and the institutions that facilitate it. He seems to want his supporters to believe that their electoral participation will be rendered meaningless.” Trump, who refused to say he would concede if he lost the election in 2016, is now saying outright that the election will be invalid if he loses, because mail-in voting is inherently fraudulent; or because if the results are unknown on the night of Nov. 3, they won’t count; or because, as he and his attorney general continue to insist, foreign entities are interfering with any ballots that come by mail. Trump is promising to conscript law enforcement personnel to act as poll watchers who will be on standby to intimidate voters at their polling places (this is not lawful either). And the culmination of all these efforts to muddy the voting waters and cast doubt on the legitimacy of the election results has come this week, as Trump complacently approves of lawless convoys of Trump supporters bent on performing what they believe to be law enforcement functions without any legal authority.
Trump has now spoken out in defense of a supporter who killed protesters in Kenosha, Wisconsin. The president has claimed that the 17-year-old shooter, who crossed state lines with a weapon that was not his own, found himself in “a very interesting situation.” As Aaron Blake noted in the Washington Post, the president did not condemn the violence and instead echoed Rittenhouse’s lawyers, who said the 17-year-old “did nothing wrong” and “exercised his God-given, constitutional, common law and statutory law right to self-defense.”* Trump has now defended crowds of his supporters who took it upon themselves to shoot paintballs and pepper spray on protesters in Portland, Oregon, because, as he tweeted, “the big backlash going on in Portland cannot be unexpected after 95 days of watching [an] incompetent Mayor admit that he has no idea what he is doing. The people of Portland won’t put up with no safety any longer. The Mayor is a FOOL. Bring in the National Guard!”
The president, who defended the attack by federal officials on lawful protesters at Lafayette Square only a few months ago, is now defending armed militiamen stepping in to quell racial justice protests around the country after he himself sees fit to describe them as rioting and looting. Trump is, in short, encouraging his supporters to do the work of local police, federal officials, and the National Guard, if—in their frustration with those entities—they feel the work isn’t being done. (Within hours, that message has been taken up by Republican leadership.) He is not just declaring war on government. He is declaring war on how government is chosen. And he is suggesting that his own followers’ dedication might be the only remedy to broken trust in voting, after spending four years breaking trust in voting.
Back in 2000 in Florida, disputes over voting resulted in a so-called Brooks Brothers Riot, in which GOP lawyers swarmed into local elections disputes, demanding close monitoring of recounts and alleging improprieties. That felt like an inevitable endpoint for the 2020 election as well: lawyers on both sides jostling to make their case for the votes they represent. But in a matter of one short week, Trump has seeded the terrifying notion that this riot does not come dressed in natty suits and good haircuts. He is implying, if not stating outright, that the legal work need not be conducted by lawyers at all, and that the conduct itself need not be lawful, so long as the ends are just. His supporters, he insists, day after day, are the only true Americans, and he keeps telling them that as patriots they are free from whatever norms once governed how we protest, how we enforce the law, and also how we vote. And as gun-toting countrymen, he says, aloud, they are well within their rights to decide when actual law enforcement is not doing its job correctly, and they can cross state lines with weapons of war to pick up the slack themselves. None of this is surprising for a man who could not bring himself to disavow Nazis marching in the streets of Charlottesville, Virginia, three years ago, but it is a tectonic shift in absolution, and also in incitement. It’s also a red flag for anyone who thinks this type of rhetoric won’t be directed at voters, voting, and ballot counting, in a few short weeks.
Correction, Sept. 1, 2020: This piece originally misattributed a quote from Kyle Rittenhouse’s lawyers to Donald Trump.
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