Jurisprudence

Ted Cruz and His Pals Are Responsible for Wednesday’s Carnage and Mayhem

A masked Sen. Cruz chats it up.
Sen. Ted Cruz talks with House members Wednesday before a mob of Trump supporters erupt in violence. Erin Schaff/Getty Images

What happens when political parties reject elections and delegitimize democracy? American history tells us clearly: violence and bloodshed. Wednesday’s riot at the Capitol may seem unprecedented, but it was utterly predictable. On Sunday, I tweeted this thread on how attempts to steal American elections almost inevitably lead to violence, and I drafted much of this essay on Monday. While Wednesday’s violence was foreseeable, the question now is what Congress should do about the national leaders who enabled and inflamed this crisis.

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Even after Wednesday’s literal assault on democracy, a significant number of Republicans continue to spread baseless conspiracy theories. Indeed, these members cited the spread of those theories in order to justify their decision to object to Wednesday’s Electoral College count, the precipitating event for all of this madness. As a pro-Trump mob was marching to the Capitol right on cue, Sen. Ted Cruz led the objections, swooning that “39 percent of Americans say the election was rigged. … You might disagree, but it is a profound danger to our democracy.” Yes, Ted Cruz spreading these baseless concerns, and then citing those concerns, is indeed a profound danger to our democracy.

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American history is instructive in this regard. Specifically, the 1850s “Bleeding Kansas” episode when pro-slavery election fraud produced voting disputes and then a cycle of murders has a lot to teach. Bleeding Kansas, of course, was a major escalation toward the Civil War. It’s also worth noting that Wednesday was the first time in history that the Confederate battle flag was paraded in the halls of the U.S. Capitol. Sens. Josh Hawley and Ted Cruz, and Wednesday’s other challengers should be known as the “Bleeding Kansas” Republicans and they are morally responsible now that their actions have been followed by violence and the raising of the Confederate flag inside the Capitol. Not even Gen. Robert E. Lee and his army could pull that off, but as a historical irony, it was the Republican Party’s secessionists who did.

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For his part, staunch Trump supporter Sen. Tom Cotton on Tuesday implicitly confessed what the Electoral College count fight is really about: Republicans worry that they can no longer win a majority fairly. Cotton explained that he would be voting to accept the 2020 electors in order to protect the Electoral College and its apparent current bias toward Republicans: “If Congress becomes a new battleground for determining the results of the Electoral College, a future Democratic majority could deny the presidency to a Republican president-elect who didn’t receive a majority of the popular vote.” His even more reactionary colleagues, though, are taking this same fear to an extreme: rejecting the legitimacy of elections altogether by spreading lies and distrust.

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Again, we’ve seen this chapter before, and it did not go well. Pro-slavery forces in America lied, cheated, stole, and then seceded when they realized they could no longer win key state and national elections fairly. But before that, the problem was too much compromise and accommodation. Congress revised and then repealed the Missouri Compromise with the Compromise of 1850 and then the Kansas-Nebraska Act of 1854, leaving the question of establishing new states as slave or free to the territories’ residents under the slogan “popular sovereignty.” The events over the next six years made a mockery of this term. Unlike today, there was indeed widespread organized voter fraud, and it destroyed the legitimacy of elections.

The Kansas-Nebraska Act opened what would become Kansas, Nebraska, the Dakotas, Wyoming, and Montana to local votes on slavery vs. freedom, starting with Kansas. Pro-slavery Missourians moved west, either permanently or temporarily, into Kansas just to vote to promote the westward expansion of slavery. Many of these Missourians became known as “Border Ruffians” as they engaged in intimidation tactics. Violence and murder preceded these slave vs. free local elections, mostly from the pro-slavery side. Pro-slavery forces ultimately used fraud to win elections. In Kansas, the pro-slavery candidates claimed victory following these fraudulent votes, formed a legislature, and drafted a pro-slavery “Lecompton Constitution” in preparation for statehood.

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In 1855, Congress investigated and found massive vote fraud. One estimate is that pro-slavery forces added 5,000 illegal votes to swing the 1854 elections. For example, one district had 161 voters: 30 were legal residents, and 131 were not. Congress’ investigation indicated that the so-called Pawnee/Lecompton legislature was a fraud and invalid. In 1855, anti-slavery forces seated their own government at Topeka and drafted their own free-state Topeka Constitution. But the pro-slavery president, New Hampshire Democrat Franklin Pierce, sided with the pro-slavery Kansas government.

The violence escalated in 1856, with pro-slavery mobs raiding Lawrence, Kansas, to shut down an anti-slavery paper, killing one. In revenge, John Brown organized his own militia, killing five in the Pottawatomie massacre, then leading two more armed battles that summer. Brown would later organize an ill-fated armed revolt in Harper’s Ferry, Virginia, on the eve of the Civil War. By the time the massacres ended in 1859, 56 people had died in “Bleeding Kansas,” as it was named at the time.

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“Bleeding Kansas” was a turning point in the rise of the Republican Party, an ironic twist as the parties have reversed roles on democracy and anti-democracy. When it became clear that the United States couldn’t resolve “half slave/half free” in Western expansion via local elections, the Republican Party campaigned on prohibiting any further expansion of slavery, while also proposing an initial “13th Amendment” that would have protected slavery in any current slave state. Pro-slavery Southerners already knew they could not win territorial elections fairly and turned to violence. When Abraham Lincoln won the 1860 election, they then realized they could no longer win presidential elections, so they seceded and turned to war.

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Like today, national racist politicians like Pierce ignored election rules and the clear facts/evidence and the principle of democracy to brutally pick the side that they preferred as a matter of partisanship and naked power. And the result was increasing violence and murder.

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When party leaders cheat, and then fraudulently allege cheating by the other side, when they convince their supporters that their government and their democracy are illegitimate, the inevitable result is crime, violence, and domestic terrorism.

In the months following a free and fair election, Hawley, Cruz, and their “Bleeding Kansas” colleagues and their supporters are following the path of authoritarianism and violence by delegitimizing American democracy with zero evidence of fraud.

During the Trump era, we have already witnessed white supremacist murderers in Charlottesville, Pittsburgh, El Paso, Wisconsin, and elsewhere. We already witnessed a deranged Trump supporter mailing pipe bombs to George Soros and the political leaders of the Democratic Party. On Christmas, a man believing right-wing-adjacent conspiracy theories detonated a massive truck bomb in Nashville, Tennessee.

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No one can prove that acts of domestic terror were caused (or will be caused) by these bad-faith attacks on democracy and fair elections. But there is an important phrase for such conduct: stochastic terrorism, “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted.” Trump has engaged in such demonization before, and he has in the past weeks demonized specific public officials for not helping him with his likely criminal election fraud conspiracy. Now Trump’s reactionary supporters in Congress are helping him demonize half the country. The violence is spreading. On Wednesday, Trump supporters in Washington state also attempted to storm the governor’s mansion. The violence will not abate without action.

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Congress can take immediate steps to answer these attacks and incitement: Step One, impeach, remove, and disqualify Trump, so that he cannot run again and more importantly, he can be out of the chain of command before he can do more damage as Jan. 20 approaches. Sen. Susan Collins pathetically asserted that the House had already “taught Trump a lesson” with its 2019 impeachment vote. It’s too late for such fictions, but actual removal could mitigate the damage from the failed lesson and send a message to his supporters. Disqualification means Trump cannot run again, a crucial step toward ending the Trump era. Step Two, as Rep. Cori Bush has suggested, rely on Article I, S 5, cl 2 of the Constitution, which states: “Each House may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” If the incoming and outgoing Senate Majority Leaders Chuck Schumer and Mitch McConnell meant anything they said about protecting democracy on Wednesday, they can punish Hawley and Cruz, along with their fellow democracy delegitimizers by stripping them from all committees and suspending them from the Senate for an appropriate cooling down period. If this timeout doesn’t take, these members can be expelled. Some members of the House should face the same consequences. The best response to anti-democratic extralegal attacks on the Constitution is to rely on the tools explicitly granted by the Framers for disciplining dangerous demagogues.

History tells us that such attacks on elections foreseeably lead to domestic terror. Blood may be on the hands of these political leaders for the anti-democratic violence that foreseeably follows such brazen attacks on democratic legitimacy. Unlike the 1850s Congress that failed its tests, today’s Congress can take direct action to preserve and protect our democracy.

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