On Monday, Arizona Gov. Doug Ducey added his name to the list of Republican officials who have acted admirably to uphold the rule of law following President Donald Trump’s unprecedented attacks on the election, appearing to ignore a phone call from the White House while certifying his state’s critical 11 Electoral College votes for President-elect Joe Biden. Along with a number of Federalist Society-aligned judges, other GOP governors, and lower-ranking Republican election officials, Ducey and others have earned this praise in the wake of Trump’s ongoing—and ultimately futile—effort to overturn the 2020 election. We can thank principled people on the right for helping to assure that we will have a peaceful transition of power between Trump and Biden. And given the extremely dangerous rhetoric still coming from some high-profile Trump supporters—including suggestions that the president declare martial law, call off elections, or have former government officials who have vouched for the election’s integrity shot—those with progressive politics and democratic ideals need the continued support of ideological adversaries who are similarly committed to the rule of law.
The last few months have been surreal for those of us in the business of analyzing American election law and explaining it to the public. Never before have we had a president or presidential candidate who has consistently made false and outrageous claims of vote rigging and election fraud. Trump’s false claims did not stop after it became apparent that Joe Biden had rather comfortably won election in the Electoral College by a 306–232 margin (and with at least a 6 million popular vote margin). They did not stop when Trump lost almost every single one of his election-related lawsuits around the country. And they likely won’t stop when Trump leaves office in January. Trump has convinced millions of his most ardent supporters that the election was stolen, and this will help to delegitimize the Biden presidency in their eyes.
Although Trump’s attempts to overturn the election have been sometimes comically bad and based upon either unproven claims of fraud and irregularities or outlandish legal theories, the reason that these outrageous claims did not work is that most people across the political spectrum who play a role in the counting of ballots and in certifying the results have complied with the rule of law.
This includes Republican election clerks, secretaries of state such as Georgia’s Brad Raffensperger who has faced death threats, Aaron Van Langevelde of the Michigan state canvassing board who recognized he had no legal discretion not to certify Biden’s 154,000 win in the state, the Republican state legislators in states in Michigan, Pennsylvania, and elsewhere who resisted Trump’s attempted gambit to have states appoint competing slates of electors to create a January battle over counting Electoral College votes in Congress, the Republican Govs. Brian Kemp of Georgia and Doug Ducey, who rejected Trump’s calls to declare their states’ elections fraudulent despite Trump’s personal entreaties and attacks, and the federal and state judges of both parties who applied sound legal principles in rebuffing Trump’s flimsy lawsuits.* And on Tuesday, even Trump’s Attorney General Bill Barr, who had scandalously backed Trump’s claims of a potential for voter fraud in the past, told the AP that the Department of Justice has uncovered no kinds of fraud or irregularities that could change the outcome of the election.
As 3rd U.S. Circuit Court of Appeals judge and noted Federalist Society member Stephanos Bibas declared in soundly rejecting a Trump lawsuit out of Pennsylvania, “Free, fair elections are the lifeblood of our democracy.* Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here. … Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.”
There are serious disputes over elections between those of us who support strong voting rights and those on the right who have resisted them. As I’ve detailed at Slate and elsewhere, Kemp himself engaged in very questionable practices when he served as Georgia’s secretary of state, including falsely accusing Democrats of hacking into the state’s voter registration database on the eve of his gubernatorial election to cover up his own incompetence in securing that database. Republican election officials and legislators continue to support restrictive voting rules across the nation. Federalist Society judges have embraced legal theories that killed off a key provision of the Voting Rights Act, and are poised to allow Republican states to engage in new forms of voter suppression in the name of preventing fraud or protecting the supposed rights of state legislatures to have unfettered discretion in setting rules for federal elections.
But when it comes to upholding the fundamental rule of law, many on the right deserve praise in this moment. And that might seem like a very low bar, but it is important to consider the alternative. In just the past few days, one of the president’s lawyers, Joe diGenova, said that former federal cybersecurity head Chris Krebs, a Republican who has vouched for the integrity of American elections, should be shot. Sidney Powell, a lawyer who had worked for the president on his election lawsuits until she was fired and is still bringing a crazy conspiracy-laden election lawsuit in Georgia against the election results, according to Politico, “retweeted a Twitter message that called on Trump to declare an insurrection, halt the planned convening of the Electoral College in each state in Dec. 14 and use ‘military tribunals’ to investigate alleged fraud related to the just-completed election.” Lin Wood, also involved in the litigation, said that the president should declare martial law and hold a new election. Fox Business host Lou Dobbs in an interview with Powell called for “drastic action” because of supposed crimes committed against Trump and the American people. That key Republican officials and conservative judges have not allowed themselves to be dragged along with the would-be mob is noteworthy.
We are not out of the woods yet, and it is going to take continued vigilance by all people of the left and right to assure continued support for the rule of law. Some of what we are hearing from the president’s most ardent supports is very ugly, antidemocratic, and anti-American. In this fight, we should be appreciative of Federalist Society voices and others standing up for what is right.
Correction, Dec. 1, 2020: This article originally misspelled Brad Raffensperger’s last name. It also misidentified Judge Stephanos Bibas as Stephen Bibas.