Jurisprudence

Who Won the Presidency, America?

Eventually, we’ll have to deal with our lack of shared reality.

People hold up signs that say things like, "Arrest the vote counters."
People gather at the Michigan State Capitol in Lansing for a “Stop the Steal” rally in support of President Donald Trump on Nov. 14. Jeff Kowalsky/Getty Images

“Protesters” with weapons threatened Michigan Secretary of State Jocelyn Benson and her 4-year-old son in their home over the weekend. Kim Ward, the majority leader of the Pennsylvania state Senate, told the New York Times that a failure to cooperate with angry voters seeking to challenge Joe Biden’s victory would mean, “I’d get my house bombed tonight.” Election officials in swing states around the country report death threats or harassment. And the official Twitter account of the Arizona Republican Party asked followers if they were willing to die to overturn the election. This is happening.

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A patently frivolous Texas lawsuit filed by a patently compromised attorney general that seeks to outright nullify the votes of millions of people for no legitimate reason is before the Supreme Court. On Wednesday, 17 state attorneys general signed onto a brief supporting that laughable lawsuit. As my colleague Mark Stern observes, “Paxton’s suit asks the Supreme Court to throw out every vote in four states won by Joe Biden—Georgia, Michigan, Pennsylvania, and Wisconsin—then direct each state’s legislature to declare Trump the winner. This act would constitute the single biggest incident of voter nullification in American history.” State Supreme Courts are dismissing these cases on 4–3 grounds, which is certainly not 7–0. This is happening.

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Only 27 Republican members of Congress recognize Biden’s sweeping electoral victory as legitimate. On the other hand, 106 Republican members of the House of Representatives joined an amicus brief supporting the Texas lawsuit described above. And GOP leadership this week blocked a resolution acknowledging a peaceful transfer of power to the new administration. The GOP-controlled Senate is refusing to confirm Biden nominees despite the fact that, in the past most Cabinet nominees received hearings before an inauguration, and 84 percent were approved within days. The administration is blocking the transition process and purposefully sabotaging government agencies so that the next administration will be hamstrung. This is happening.

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Also, COVID-19 is still happening, and it is still killing us. On Wednesday, the United States logged 3,140 deaths from a disease that millions believe to be a hoax, the highest single-day toll since the pandemic began. The head of the New Hampshire state legislature died of COVID one week after having been sworn in. Americans still refuse to wear masks, egged on by the likes of Rudy Giuliani, who claims COVID is fine after his own bout with it (during which he received excellent health care, unlike many Americans). This, too, is happening. Still.

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To talk about most of these things is dispiriting, and more so, disempowering. That is why every single day for the past month has featured at least one headline proclaiming that Biden has won the election again. (On Wednesday, for instance, headlines blared that every state certified the election for Biden, some for the second time.) The safe harbor deadline has passed. Trump’s current litigation count is 1–55. Tomorrow will feature yet another headline reaffirming the Biden victory. So will Jan. 19. I have described the past month as Stupid Coup Groundhog Day, but unfortunately the fact that it is stupid doesn’t mean it’s not taking place. Susan Glasser describes it as the “yeah, whatever” phase of the presidential interregnum. There is nothing obvious for us to be doing about any of these simultaneous trends and events, so instead we debate what to call it.

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Zeynep Tufekci masterfully captured one side of the debate in her Atlantic essay this week titled “ ‘This Must Be Your First’ ” wherein she contends that the English language, while lacking sufficient words for “coup” should contend with Trump’s comedic lawsuits, violent incitement, and obstruction as if it were real. As she notes, “We’re being tested, and we’re failing. The next attempt to steal an election may involve a closer election and smarter lawsuits. Imagine the same playbook executed with better decorum, a president exerting pressure that is less crass and issuing tweets that are more polite. If most Republican officials are failing to police this ham-handed attempt at a power grab, how many would resist a smoother, less grossly embarrassing effort?”

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Tufekci—in a display of intellectual generosity most of us could not fathom—then promptly published a rebuttal to her own essay by Maciej Ceglowski, in which he rejected her language of coups and lawlessness, and emphasized that the election went smoothly, and that every single institution has held:

This disconnect between what’s happening out in the country and the thunder and smoke on social media is part of a pattern we’ve been stuck in since 2016, when Trump became the presumptive nominee. Through the entire trajectory of Trump’s presidency—his assumption of power, his cabinet appointments, the Russia investigation, the Mueller report, impeachment, the census, the midterm elections, and now his peaceful departure from office—we have been warning each other that we might as well start ironing our brown shirts, because American democracy was just about done for.

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These debates are fascinating to me, insofar as they perfectly encapsulate both sides of a dispute many of us have been having for the five years since Donald Trump first announced his candidacy. (You may recall similar debates in recent years over the use of the words treason, concentration camps, and medical experimentation.) We end up debating the appropriate words perhaps because debating the imponderable questions about what is a “rational” measure of concern for the underlying subjects is too much. Or perhaps because in the absence of shared narratives and truths, we think we can use precision in language to reverse-engineer our way into knowable facts.

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My own sense is that we will not know whether what we are seeing play out—in the state attorney general offices, in efforts to have states designate partisan electors, in calls for mass resistance from Rush Limbaugh and others, in claims that God wants all this—is theatrical or existential until later. Triumphal claims that the system is holding usually elide the fact that some systems barely held and some have yet to be tested. In a sense, just as we cannot seem to figure out which day we can stop announcing that Biden won the election, we are also having a hard time settling on the day we will be able to claim that the coup (or, better, the couplike phenomenon to be named later) was finally thwarted. The problem with rising illiberalism is that we haven’t quite secured an end date for it either.

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I am mindful, too, of the fact that we all believed “nobody is taking to the streets” was the marker of something until Charlottesville, when they did take to the streets. And also of the fact that in the weeks before Charlottesville 2017, if you suggested Nazis were about to take to the streets, you were a certifiable kook. In the absence of knowledge about what is happening and how it inflects on what is to come, the temptation to cherry-pick both the data and the outcome—to sort that into “relevant and probative” as compared to “hysterical and distracting” is strong. It’s a form of control, and I remember that, too, from the days before Charlottesville.

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I actually careen from team Cassandra to team Hope hourly. I see compelling evidence on each side. I understand the impulse to write a scathing essay about how the system is failing us and then to commission the piece that says the exact opposite thing. This is the problem with what happens when a country loses its shared sense of reality. When 70 million people might be living in an entirely different world, we can understand in theory that their world isn’t what’s happening, but we still have to deal with its existence, even if that existence is only in their heads.

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In Charlottesville, in 2017, no one was taking to the streets until suddenly, there they were, in our streets. When that happened, everyone had to respond. I don’t know when, or how, or if, the claim that Joe Biden didn’t win the election will spill into the streets, or even if we are allowed to say that without being accused of contributing to its likelihood. I do know that in the current moment of choose your own reality, it’s less useful to pretend the reality of the other side is not happening than to realize each might come to pass.

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