Republicans are trying to get the supreme court to overturn democracy itself

8 min readDec 12, 2020

This is extraordinary: a group of Republicans are asking the court to disenfranchise millions of Americans, just so their guy can stay put.

How does a two-party democracy continue to function when one side simply won’t play by the rules — and doesn’t seem to believe in the democratic project?

That’s what we’re seeing play out, as 106 Republicans in Congress signed a lawsuit, backed by more than a dozen Republican state attorneys general, asking the US supreme court to overturn the results of a free and fair American election, because a Democrat won. It’s an egregious and unconscionable move, and suggests that the corrosive effects of President Donald Trump will remain even after he leaves the White House.

Trump lost fair and square. But the state of Texas has asked the supreme court to intervene in Georgia, Pennsylvania, Wisconsin and Michigan; those four states, in turn, have asked the supreme court not to intervene, and to respect the results of the election and the will of their citizens. This is an extraordinary situation: a group of Republicans, still loyal to a president with waning power, are asking the supreme court to disenfranchise millions of Americans, just so their guy can stay put.

What is left to say about a political party that would throw out millions of votes?

The substance of a lawsuit filed by the State of Texas, and backed by more than 17 other states, would be laughable were it not so dangerous. Texas’ attorney general, Ken Paxton — who is under indictment for securities fraud — asked the Supreme Court to overturn the results of the presidential election in four other states. As a legal matter, this is the rough equivalent of objecting on the grounds that the other side is winning. As political rhetoric, however, it is incendiary.

The Supreme Court was right to toss out the lawsuit. But that the Republican Party tried and failed doesn’t make the attempt any less odious. There are a lot of Republican leaders who, the history books will record, wanted it to succeed.

What makes this entire episode so sad is that the nation needs a vibrant, honest, patriotic opposition party. A party that argues in good faith to win more votes the next time around. Many Republicans, particularly at the state and local level, stood tall and proud against the worst instincts of the national party.

The health of a democracy rests on public confidence that elections are free and fair. Questioning the integrity of an election is a matter of the utmost seriousness. By doing so without offering any evidence, Mr. Paxton and his collaborators have disgraced themselves. Attorneys general are sworn to uphold the rule of law.

The fact that so many Republicans are going along with this authoritarian and undemocratic charade is clarifying, if depressing. Through four years of Trump, there were two main theories of Republican acquiescence: either Republicans really were supportive of the president, in all of his cruelty and incompetence and authoritarianism, or Republicans were simply scared of him and his hold over the Republican base, but secretly loathed the man and were anxious for a return to normal.

At least 126 Republican members of Congress — more than half of all House Republicans — rushed to sign a court filing endorsing the Texas lawsuit. That misuse of the legal system was not restricted to the fringes of the party. The minority leader, Representative Kevin McCarthy of California, said Friday that his name was inadvertently omitted from the original list.

It is particularly astonishing that 17 of the House signatories were elected by voters in the states whose election results Texas was seeking to invalidate. They signed a letter directly challenging the legitimacy of their own victories and the integrity of their own states’ elections.

It turns out that Trump wasn’t an aberration. He was the result of long-building extremism and reality-denialism on the right. And when he came to power, far too many in the Republican party didn’t see a cruel, incurious, dictatorial madman, but a kindred spirit — and the kind of leader who would happily override inconvenient democratic norms, basic standards of human decency, and even the rule of law. That became increasingly clear the longer Trump was in office; yet, out of naivety or perhaps just misplaced trust in other human beings, too many Democrats, pundits, and average citizens chose to believe that Republicans were simply caught between a rock and a hard place, and that Trumpism would end with Trump.

If that were true, we would expect to see Republicans encouraging the president to accept his defeat gracefully — or, if he is constitutionally incapable of graciousness, then to accept it rudely and let us all move on. They would be eager to reassert whatever conservative principles haven’t been laid bare as entirely farcical by this administration. Instead, they’re not just supporting the outgoing president, they’re trying to override American democracy itself — and trying to use the supreme court to do it.

These lawmakers were humiliating themselves to conciliate President Trump, a man who once created a coat of arms for himself emblazoned with the words Numquam Concedere — never concede. Mr. Trump, not a man to often place the national interest above his own personal interests, is pursuing a series of increasingly desperate strategies to overturn the election results and remain in power. Having failed to convince the voters, he is now pressing state legislators, the courts and Congress to defy the will of the people as well.

That the attacks on Mr. Biden’s victory are unlikely to succeed is a very cold bowl of comfort.

Republicans are establishing a new standard for elections that anything short of a fight to the death amounts to not trying hard enough. The old norm of graceful concession was not just an act of good manners. A concession has no legal force, but it has considerable value as an affirmation that the democratic process is more important than the result.

Conceding leaves the nation’s political and social systems functional for the winner.

This new policy of election denialism, by contrast, is the latest manifestation of the Republican Party’s increasingly anti-democratic tendencies. Rather than campaigning on issues that appeal to a majority of the electorate, the party has made a strategy out of voter suppression. Seeking to toss votes after the fact is a logical if perverse extension of that strategy. So is the growing willingness of Republican Party officials to deny the legitimacy of their opponents.

This isn’t really about Mr. Trump anymore. He lost, and his ruinous tenure will soon be over. This is now about the corruption of a political party whose leaders are guided by the fear of Mr. Trump rather than the love of this country — and who are falling into dangerous habits.

The events of recent weeks have demonstrated the strength and resilience of the election system. A larger share of American adults voted in the 2020 presidential election than in any previous cycle. The votes were counted, sometimes more than once. The results were certified. In the states that have attracted the particular ire of Mr. Trump and his allies, most officials, including most Republican officials, defended the integrity of the results.

But the incendiaries are playing a dangerous game. They are battering public trust and raising doubts about the legitimacy of future elections. Most of it is political theater: Mr. Biden’s decisive victory is difficult to overturn. But a great many voters trust their political leaders, they don’t expect to be lied to, they aren’t in on the grift.

It is also a short walk from rhetorical attacks on the legitimacy of the election to denying the legitimacy of Mr. Biden’s administration. Republicans are certainly within their rights to disagree with Mr. Biden and to challenge the decisions made by his administration, but those who refuse to accept his victory are undermining the rule of law. Those who stand silent are complicit.

The implications of this assault on truth and trust extend well beyond elections. We are in the midst of a public health emergency. Lives depend on the government’s ability to shape public behavior, including by persuading people to get vaccinated. By denying the authority of those who govern, Republicans are placing lives in danger.

They can now demonstrate a modicum of their professed patriotism by mustering the courage to say these simple words: “Congratulations, President-elect Biden.”

If they can’t bring themselves to do that, where does a party that rejects democracy go from here?

This puts Democrats, and all of us, in a difficult position. It’s one thing to disagree on policy; it’s another to disagree on the foundations of a democratic system. The right of the people to elect their leaders is foundational to the American system. There is no American democracy without it. An attack on that system — a request that a high court disenfranchise millions who voted according to the rules and overturn the will of the people — isn’t an issue on which reasonable people might disagree. How do we move forward knowing that so many of our elected officials are ready and willing to use their own democratically elected offices to undermine democracy, and strike at the very heart of what makes America what it is?

There’s no question that Republicans and Democrats see the world differently and have radically different policy goals. And at least in my lifetime, there has never been a golden age of political bipartisanship where both sides wanted what was best for the American people and simply disagreed on how to get there. The Republican party has long been the party of racial animus, of misogyny and attacks on women’s rights, of hostility to the LGBT community, of closed doors and high walls and hostility toward immigrants, of money for guns but not schoolbooks, and of tax cuts for the rich and lectures for the poor. There was no pre-Trump world of compromise and goodwill to which we will eventually return.

And yet Trump has still made things immeasurably worse. And before Trump, the Republican party could at least somewhat plausibly claim to have a stake in American democracy. Yes, they created rules for Democrats and then played by a whole different set (just ask Merrick Garland). Yes, they shamelessly tilted the table to their advantage (just look at who Republican-penned voter suppression laws target). But this — asking the supreme court to overturn a presidential election because they don’t like the result — is a new low. It’s not just taking advantage of a credulous opponent. It’s tantamount to an attack on America itself — not just dangerous, but flat-out seditious.

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Republicans are trying to get the supreme court to overturn democracy itself

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