Ever since Donald Trump lost his bid for reelection, Americans have wondered to what depths he would sink in his efforts to overturn the results and cling to power. On Wednesday, they got their answer: The president of the United States incited a mob of supporters and sicced them on the Capitol, just as Congress was about to count the states’ electoral votes and affirm Joe Biden’s victory. In the ensuing chaos, the hallowed chambers were desecrated, the ceremonial process was disrupted, one woman was fatally shot and four others died, including a Capitol police officer. By egging on this deadly insurrection and hailing the rioters (“We love you, you’re very special.”), the president forfeited his moral authority to hold the nation’s highest office, even for 13 more days. More urgent, he reinforced profound questions, and raised new ones, about his judgment and ability to fulfill his most minimal responsibilities to the country he is supposed to lead and protect. Trump’s continuance in office poses unacceptable risks to America. Foreign adversaries sense disarray and weakness. People close to Trump say his mental state is fragile. Even though he committed early Thursday to an orderly transfer of power, who knows what pardons he might grant, what orders he might issue as commander in chief and what other desperate measures he might take before Jan. 20? Resignation would be the preferable means for Trump to depart; Richard Nixon quit when Republican elders told him the jig was up amid the Watergate scandal. But there is no reason to believe that Trump will leave voluntarily, even in response to entreaties from top aides and GOP lawmakers.
President Trump and his Republican enablers in Congress incited a violent attack Wednesday against the government they lead and the nation they profess to love. This cannot be allowed to stand. Mr. Trump’s seditious rhetoric prompted a mob of thousands of people to storm the U.S. Capitol building, some breaking onto the House and Senate floors, where the nation’s elected representatives had gathered to perform their constitutional duty of counting electoral votes and confirming the election of Joe Biden as president. It is fitting that some carried the Confederate flag as they attacked the seat of American government and forced the suspension of congressional debate. They shattered windows and broke doors, clashing with overwhelmed security forces as they shouted their support for Mr. Trump and their defiance of the lawful results of the 2020 election. One woman was killed. The nation’s leaders were sent scurrying for shelter. Explosives were found in the Capitol and multiple locations around Washington. Pro-Trump protests also shut down statehouses around the country. Mr. Trump sparked these assaults. He has railed for months against the verdict rendered by voters in November. He summoned his supporters to gather in Washington on this day, and encouraged them to march on the Capitol. He told them that the election was being stolen. He told them to fight. He told them he might join them and, even as they stormed the building, he declined for long hours to tell them to stop, to condemn their actions, to raise a finger in defense of the Constitution that he swore to preserve and protect. When he finally spoke, late in the day, he affirmed the protesters’ anger, telling them again that the election was stolen, but asking them to go home anyway. It was the performance of a man unwilling to fulfill his duties as president or to confront the consequences of his own behavior.
Editorial: The Far-Right Told Us What It Had Planned. We Didn’t Listen. | Seyward Darby/The New York Times
A woman was killed in the riot on Wednesday — shot in the Capitol by a police officer. Her death shouldn’t have happened, and it should now be investigated, no question. What’s frightening, however, is that many Trump supporters are already heralding her as a martyr. “Say her name” advocates of Wednesday’s coup attempt have tweeted, co-opting the language of the Black Lives Matter movement. A dead or injured white woman — even the illusion of one — has always been a powerful symbol on the far right, a rallying cry for people to stand up and act to preserve their contorted notions of honor, liberty and purity. Consider the apocryphal stories of sexual violence that led to countless lynchings. Or of Ruby Ridge in Idaho, in 1992, when federal agents killed an unarmed white woman during a botched raid: “When the Feds blew the head off Vicki Weaver I think symbolically that was their war against the American woman, the American mother, the American white wife,” an acolyte of the far right, a pastor, said at the time. “This is the opening shot of a second American Revolution.” Right-wing activists have been citing Mrs. Weaver’s death ever since as evidence that they stand for what is good and right: family and freedom. How will they twist the death on Wednesday now, even if the mob brought the violence to the state, and not the other way around? We can’t remedy the past errors that brought us here, but we can avoid new ones, starting by rejecting the assumption that Wednesday’s events won’t lead to something worse. Just because a coup attempt fails doesn’t mean the next one will. History holds important lessons, if only we are willing to hear them. This moment — men and women breaching the Capitol’s barricades, entering the chambers of Congress and demanding the nullification of the presidential election based on nothing more than lies and conspiracy theories — is a culmination, but it is not an ending. It is not, as some pundits have suggested, white supremacy or Trumpism’s “last gasp.” It is the manifestation of a long-held right-wing fantasy. Opponents of democracy stormed the nation’s seat of power. They walked out, many unscathed and uncuffed, to fight another day.
President Trump’s refusal to accept his election defeat and his relentless incitement of his supporters led Wednesday to the unthinkable: an assault on the U.S. Capitol by a violent mob that overwhelmed police and drove Congress from its chambers as it was debating the counting of electoral votes. Responsibility for this act of sedition lies squarely with the president, who has shown that his continued tenure in office poses a grave threat to U.S. democracy. He should be removed. Mr. Trump encouraged the mob to gather on Wednesday, as Congress was set to convene, and to “be wild.” After repeating a panoply of absurd conspiracy theories about the election, he urged the crowd to march on the Capitol. “We’re going to walk down, and I’ll be there with you,” he said. “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” The president did not follow the mob, but instead passively watched it on television as its members tore down fences around the Capitol and overwhelmed police guarding the building. House members and senators were forced to flee. Shots were fired, and at least one person was struck and killed. Rather than immediately denouncing the violence and calling on his supporters to stand down, Mr. Trump issued two mild tweets in which he called on them to “remain” or “stay” peaceful. Following appeals from senior Republicans, he finally released a video in which he asked people to go home, but doubled down on the lies fueling the vigilantes. “We love you. You’re very special,” he told his seditious posse. Later, he excused the riot, tweeting that “these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away.”
Editorial: Impeach and Convict. Right Now. Trump is too dangerous to leave in office for even another minute. | Bret Stephens/The New York Times
It wasn’t hard to see, when it began, that it would end exactly the way it has. Donald Trump is America’s willful arsonist, the man who lit the match under the fabric of our constitutional republic. The duty of the House of Representatives and the Senate, once they certify Joe Biden’s election, is to reconvene, Wednesday night if possible, to impeach the president and then remove him from office and bar him from ever holding office again. To allow Trump to serve out his term, however brief it may be, puts the nation’s safety at risk, leaves our reputation as a democracy in tatters and evades the inescapable truth that the assault on Congress was an act of violent sedition aided and abetted by a lawless, immoral and terrifying president. From the moment Trump became the G.O.P. front-runner in 2015, it was obvious who he was and where, if given the chance, he would take America. He was a malignant narcissist in his person. A fraudster in his businesses. A bully in his relationships. And a demagogue in his politics. He did not have ideas. He had bigotries. He did not have a coalition. He had crowds. He did not have character. He had a quality of confident shamelessness, the kind that offered his followers permission to be shameless, too.
Editorial: Never Forget the Names of These Republicans Attempting a Coup | Thomas L. Friedman/The New York Times
The New Testament asks us in Mark 8:36: “For what shall it profit a man, if he shall gain the whole world, but lose his soul?” Senators Josh Hawley, Ted Cruz, Ron Johnson and all their fellow G.O.P. coup plotters clearly have forgotten that verse — if they ever knew it — for they are ready to sacrifice their souls, the soul of their party and the soul of America — our tradition of free and fair elections as the means for peacefully transferring power — so that Donald Trump can remain president and one of these sleazebags can eventually replace him. The governing “philosophy” of these unprincipled Trump-cult Republicans is unmistakably clear: “Democracy is fine for us as long as it is a mechanism for us to be in control. If we can’t hold power, then to hell with rules and to hell with the system. Power doesn’t flow from the will of the people — it flows from our will and our leader’s will.” For America to be healthy again, decent Republicans — in office and in business — need to break away from this unprincipled Trump-cult G.O.P. and start their own principled conservative party. It is urgent. Even if only a small group of principled, center-right lawmakers — and the business leaders who fund them — broke away and formed their own conservative coalition, they would become hugely influential in today’s closely divided Senate. They could be a critical swing faction helping to decide which Biden legislation passes, is moderated or fails.
Editorial: Trump’s Raffensperger call is a crime even if he believes his own fantasies | Trevor Potter and Mark Gaber/The Washington Post
President Trump’s call demanding Georgia officials “find 11,780 votes” and reverse the election results in the state was his most brazen abuse of power yet. If Georgia Secretary of State Brad Raffensperger didn’t go along with Trump’s scheme and “recalculate” the vote, the president warned, “it’s going to be very costly in many ways,” threatening that Georgia authorities were committing a “criminal offense” by not endorsing Trump’s false voter fraud claims. The president’s conduct violates the letter and spirit of federal and Georgia criminal laws prohibiting attempts to procure false election results and to solicit election fraud. Since then, some experts have raised questions about whether Trump’s attempted bullying can be prosecuted because of a possible lack of “intent.” The thought is: If the president truly believes the false allegations he is spreading, then his request that Raffensperger “find 11,780 votes” isn’t an effort to corrupt the election, but rather to “correct” it. That defense may not work for Trump in this case. Although a criminal conviction does require proof of intent — proof Trump knew he was asking for nonexistent votes to be counted in his favor — a person cannot avoid criminal liability by simply deciding to believe fantasy over fact. For example, if a person becomes convinced that she owns her neighbor’s car and is shown the title certificate proving otherwise, she cannot steal the car and escape conviction by feigning she truly believed fiction over fact — at least, not without mounting an insanity defense.
Editorial: Pence cannot intervene on Trump’s behalf during electoral vote counting | Edward B. Foley/The Washington Post
President Trump seems to believe that Vice President Pence could overturn the election results when he presides over the congressional counting of electoral votes on Wednesday. Trump is wrong, but any attempt by Pence to intervene on behalf of himself and Trump, if it comes to that, would be a constitutional travesty. It won’t work, but it would set a dangerous precedent. “I have to tell you, I hope that our great vice president, our great vice president, comes through for us,” Trump told a crowd in Georgia on Monday night at a rally purportedly for Senate candidates David Perdue and Kelly Loeffler but actually for his own flailing efforts to secure a second term. “He’s a great guy. Because if he doesn’t come through, I won’t like him quite as much.” On Tuesday, Trump followed up with specifics. “The Vice President has the power to reject fraudulently chosen electors,” he tweeted. Pence has no such authority ― nor would Senate president pro tem Charles E. Grassley (R-Iowa), if Pence doesn’t have the courage to show up and perform his constitutional duty. Not under the Constitution and not under the applicable statute, the 1887 Electoral Count Act. There are reports Pence has told Trump this and will not derail the process. Still, until Congress declares Biden the winner, American democracy is facing its greatest challenge since the start of the Civil War at Fort Sumter. Here is what’s supposed to happen when Congress meets on Wednesday. Under the Electoral Count Act, Congress has promised to accept as “conclusive” any state’s “final determination” of litigation over the appointment of its electors. Consequently, this year the process should be straightforward: There is no doubt about how any state resolved the lawsuits that the Trump campaign and its allies filed to challenge the appointment of electors. Trump lost. Joe Biden’s wins were certified. All that remains — or should — is the ceremonial tallying of those votes.
Editorial: My Republican colleagues’ ploy threatens the future of the electoral college | Rep. Ken Buck/The Washington Post
Democrats in Congress wrote the playbook for how to dispute an election’s outcome. Republican members of Congress may soon regret that they have adopted not only the rhetoric but the actual tactics from that playbook in their attempt to reject the 2020 election results. I share the concerns of many voters across the country about irregularities in the presidential election. I also share their disappointment with President Trump’s loss. However, the Founders trusted the states to decide elections, not members of Congress. The Republican members who plan to reject certain electors read into the Constitution and the Electoral Count Act a provision that simply does not exist. The 12th Amendment is simple and clear: It calls on Congress to perform the ceremonial role of counting electors. There is no allowance for rejecting electors — no matter how much we may disagree with the result or wish the election process had been better. The electoral college has come under attack in recent years. The left characterizes the system as an antiquated, undemocratic method of selecting the president. In reality, our nation’s Founders designed this system as a compromise that takes into account a variety of competing concerns. The electoral college balanced a desire to allow individuals across the nation to vote for president while also ensuring that small states’ voters would not be ignored.
The 2020 election and its aftermath have laid bare an unhappy truth: Many of the familiar procedures for translating the people’s will into the choice of a president depend on norms of behavior, not laws. Just this past weekend—two months after Election Day—remarkable efforts to mess with election results became apparent, including the revelation of a recording of, on Saturday, President Donald Trump potentially criminally pressuring Georgia Secretary of State Brad Raffensperger to “find” more than 11,000 votes to flip Georgia’s election results from Joe Biden to the president. And well over 100 Republican representatives and about a dozen Republican senators appear poised to object to the counting of Electoral College votes on Wednesday for states that Biden won, despite a complete lack of evidence that the results were marred by fraud or irregularities. These efforts are very serious—and very dangerous.If not for Biden’s significant margin of victory over Trump and for the courageous, politically risky actions of many Republican and Democratic election administrators and elected officials, this Republican attack on American democracy might well have been successful, securing an illegitimate second term for Trump. To remove the potential for this sort of gamesmanship in certifying and counting each state’s votes for president, the country needs to adopt a number of measures in the next few years to eliminate the power of individuals to interfere with election results. This can be done without opening up larger constitutional issues, such as whether to keep or do away with the Electoral College. Americans shouldn’t have to know the inner workings of the canvassing board of Wayne County, Michigan—or depend on representatives and senators to accurately count votes as states have reported them to Congress—to figure out who will be president. The backdrop for these urgent reforms is Trump’s extraordinary effort to delegitimize the election results. Amid the pandemic, the president attacked voting by mail, the safest means of voting to avoid spreading infection. Despite his claims that this shift would open floodgates of fraud, 2020 was a strikingly clean election.
Editorial: Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger | Richard L. Hasen/Slate
President Donald Trump likely broke both federal and state law in a Saturday phone call during which he encouraged Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn the state’s election results. The president certainly committed an impeachable offense that is grounds for removing him from the office he will be vacating in less than three weeks or disqualifying him from future elected office. His tumultuous term will end as it began, with questions as to the legality of conduct connected to manipulating American elections, and a defense based squarely on the idea that Trump’s mind is so warped that he actually believes the nonsense he spews. Trump may never be put on trial for what he did, but a failure to prosecute him may lead to a further deterioration of American democracy. The Washington Post’s bombshell report and audio recording of a Saturday conversation among Trump; his chief of staff, Mark Meadows; Republican election attorney Cleta Mitchell; and Georgia election officials featured a litany of unproven and debunked claims of voter fraud in Georgia. Trump claimed he had actually won the state by hundreds of thousands of votes and suggested Raffensperger could face criminal liability for not going after this phantom fraud.
In a bombshell conversation with Georgia’s secretary of state yesterday, President Donald Trump made monkeys of every Republican official and every conservative talking head who professed to believe Trump’s allegations of voter fraud. The president himself made clear that he had only one end in view: overturning the 2020 election. You knew this already, of course. Anyone connected to reality knew it. Even most of Trump’s political allies probably knew it. But important incentives induced people in the pro-Trump camp to pretend otherwise. And now, as so often happens, Trump has yanked away the protective deception to reveal the truth. And now again, Trump presents the country with a crisis and a conundrum. What Trump did on that call with Georgia Secretary of State Brad Raffensperger, first reported by The Washington Post this afternoon, might well have been a crime. More than that cannot be said until and unless a jury is heard from. But Trump has reason to worry about new juries today, alongside all the other juries he was worrying about yesterday. The Raffensperger tape shows Trump’s Plan A to stay ahead of the law: election tampering. That plan will reach its finale on January 6—the point of no return, the last minute for stunts and sabotage. A shameful number of Republican members of the House and Senate have signed up for the stunts and sabotage, but not enough to prevent the inevitable outcome of a Biden-Harris inauguration on January 20. Trump’s thoughts now must turn to a Plan B. Plan B is to protect himself from juries even if he loses office. Plan B points to a self-pardon, and the huge crisis that must ensue. President-elect Biden has already signaled his high preference not to take legal action against his predecessor. A President Biden could not protect a former President Trump from state criminal actions or civil liability, but he could signal to the Department of Justice that prosecuting a former president for federal crimes would be divisive and distracting, and therefore is to be avoided if at all possible.
Full Article: Trump’s Georgia Call Crosses a Red Line – The Atlantic
Editorial: Trump’s strategy: overturn result, cheat democracy – The president is seeking to bring down a system that defeated him | The Guardian
This week, Donald Trump will undermine democracy in the US by supporting the claim that Democrat Joe Biden did not fairly win last November’s presidential election. A peaceful handover of power in a democracy requires losing candidates and their followers to admit defeat. But Mr Trump has manufactured a controversy purely to maintain power and to overturn a legitimate election. US courts have repeatedly thrown out Mr Trump’s evidence-free cases. This has not stopped the president’s accomplices in Congress. They, backed by Mr Trump’s vice-president, on Wednesday plan to challenge Mr Biden’s win to force a debate and votes in Congress. Some scholars point to a historical precedent as offering a slim, perhaps vanishing, chance that the nightmare will continue. Mr Trump will not let an opportunity pass to relitigate an election he lost. For the good of America, he must fail. The alternative is ultimately the collapse of political norms and civil strife. A classic demagogue, Mr Trump is signalling to his supporters that they, like him, should refuse to respect the election’s outcome and reject Mr Biden’s presidency. There is a well-grounded fear that protests could erupt, some of them armed. Mr Trump might call out the national guard or send federal agents to deal with demonstrations. This chaos, Mr Trump no doubt hopes, will pave the way for an autocratic takeover. Mr Trump is a sore loser who cannot stand that he was beaten in a fair election. He should move on but sees no reason why he should yield. After all, Mr Trump has not been punished for his transgressions against tradition, decency and the law. Instead, he has been rewarded. He thinks he can get away with almost anything. The Republican party has only itself to blame for incubating Trumpism, a parasitical ideology that threatens to take over the host.
Editorial: 10 former defense secretaries: Involving military in election disputes would be dangerous, unlawful | Ashton Carter, Dick Cheney, William Cohen, Mark Esper, Robert Gates, Chuck Hagel, James Mattis, Leon Panetta, William Perry and Donald Rumsfeld/The Washington Post
As former secretaries of defense, we hold a common view of the solemn obligations of the U.S. armed forces and the Defense Department. Each of us swore an oath to support and defend the Constitution against all enemies, foreign and domestic. We did not swear it to an individual or a party. American elections and the peaceful transfers of power that result are hallmarks of our democracy. With one singular and tragic exception that cost the lives of more Americans than all of our other wars combined, the United States has had an unbroken record of such transitions since 1789, including in times of partisan strife, war, epidemics and economic depression. This year should be no exception. Our elections have occurred. Recounts and audits have been conducted. Appropriate challenges have been addressed by the courts. Governors have certified the results. And the electoral college has voted. The time for questioning the results has passed; the time for the formal counting of the electoral college votes, as prescribed in the Constitution and statute, has arrived. As senior Defense Department leaders have noted, “there’s no role for the U.S. military in determining the outcome of a U.S. election.” Efforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory. Civilian and military officials who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic. Transitions, which all of us have experienced, are a crucial part of the successful transfer of power. They often occur at times of international uncertainty about U.S. national security policy and posture. They can be a moment when the nation is vulnerable to actions by adversaries seeking to take advantage of the situation.
Editorial: Ted Cruz disrupting electoral college count won’t change anything. It can still hurt democracy. | Edward B. Foley/The Washington Post
Sen. Ted Cruz’s 11th-hour effort to derail certification of Joe Biden’s election victory is the wrong solution to a non-problem at the wrong time. Fortunately, it also won’t succeed, but it nonetheless provides one more alarming sign of the perilous state of our democracy. Cruz (R-Texas) and 10 colleagues announced Saturday that they will vote to challenge electoral college votes in “disputed states” when Congress meets Jan. 6, though it was unclear how many states that will be. In practical effect, the move adds nothing but numbers to the process that Sen. Josh Hawley (R-Mo.) had already vowed to set into motion: two hours of debate, in both the House and Senate, on each state the Republicans challenge. This will greatly slow what should be a straightforward process, but the bottom line is clear: Unless Vice President Pence, in his presiding role as president of the Senate, were to unexpectedly deviate from the procedures established by Congress in 1887 — a truly lawless move that would be swiftly resisted by senators and representatives of both parties — the outcome remains inevitable. Nonetheless, the fact that a dozen senators and senators-elect, along with apparently more than 100 House members, want to disrupt congressional ratification of the electoral college result is one more horrendous sign of the severity of the disease afflicting the United States’ democratic system. It will make it even harder for Biden to heal this pathology of partisan polarization, as he has promised to do.
Editorial: It’s time for Mike Pence to choose: Trump, or the truth | Edward B. Foley/The Washington Post
Mike Pence’s conduct on Jan. 6 matters. Not to the outcome of the presidential election, but to the process of its resolution. The vice president can either facilitate President-elect Joe Biden’s victory, or he can resist it. Which he chooses will either help or hinder the Republican Party’s recovery from the electoral denialism that afflicts three-fourths of its voters. The Constitution directs states to send their electoral college votes to Congress to be counted in a special joint session. An 1887 statute requires Pence, as president of the Senate, to chair this joint session. Typically, the session is a formality, but this year, a group of House Republicans, led by Rep. Mo Brooks (R-Ala.), are planning to use the event to try to force Congress to vote on whether to accept or reject the electoral college results. If they can get just one senator to object to the electoral votes of a state, then both congressional chambers will have to debate and vote on whether to accept that state’s submission. This is a fool’s errand. Even if they find a senator to go along with them, both chambers will certainly affirm Biden’s victory. Senate Majority Leader Mitch McConnell (R-Ky.) knows this, so he has made clear that he hopes no senator will join Brooks, to avoid forcing his GOP caucus to go on record as to whether they are with Trump or against him.
Editorial: Trump must stop denying Russia’s complicity and respond forcefully to this massive cyberattack | The Washington Post
Both Secretary of State Mike Pompeo and Attorney General William P. Barr say Russia was behind the massive cyberattack that compromised 18,000 U.S. companies and government agencies, but President Trump isn’t buying it. “Russia, Russia, Russia is the priority chant when anything happens” Trump tweeted, adding “it may” be China or “a hit on our ridiculous voting machines during the election, which is now obvious that I won big.” No, it wasn’t either of these things. And by tweeting this nonsense, Trump is not only failing to respond forcefully and restore deterrence in cyberspace — he is missing an opportunity to claim vindication concerning Washington’s obsession with Russian electoral interference. Were U.S. intelligence officials so focused on detecting and deterring Moscow’s election interference that they missed the Kremlin’s real target — a massive cyber penetration of U.S. businesses and government agencies? That’s the case Trump should be making. Undetected, Russian hackers penetrated SolarWinds, a company that produces network management software used by many Fortune 500 companies and government agencies, in October 2019, and began attaching a computer virus to the software updates the company pushed out to its clients. SolarWinds updates acted like a superspreader, allowing Russia to create “back doors” in targeted networks that, according to the New York Times, gave Moscow the ability “to come and go, steal data and — though it apparently has not happened yet — alter data or conduct destructive attacks.” Russia penetrated not only thousands of businesses but also the U.S. Departments of State, Homeland Security, Treasury, Commerce and Energy — including the National Nuclear Security Administration, which maintains the U.S. nuclear weapons stockpile. We still do not know the full extent of the damage. Some national security experts have suggested that this attack could actually be a subset of a much larger operation.
Editorial: The System Is Not Working: The Lopsided Election Result, Not The Courts, Saved Our Democracy | Jonathan Manes/Just Security
For more than six weeks, President Donald Trump and his allies have waged a mendacious campaign to overturn the results of the election. Much of that campaign has hinged on the idea that the courts could, should, and would deliver the election to him despite the vote tallies after Election Day. But last week, in state capitals across the country, members of the electoral college met to cast their votes for President, and every single one of those electors corresponded to the winner of their state’s popular vote. Despite more than 60 lawsuits, hundreds of tweets, and a parade of made-for-TV “hearings” on supposed fraud, the president failed to persuade any court to reverse any result. To the contrary, the courts smoked out the campaign’s bogus claims of fraud by challenging the president and his allies to prove their allegations, which they failed, repeatedly to do. For many people, this looks like a triumph for the rule of law and a vindication of our judicial system as a safeguard of democracy. That reaction is naïve. The system does not deserve the credit. It was easy for judges to stay out of the way—and hard for them to get in the way—when the margin of victory was so clear and the claims of fraud so transparently false. The election was well beyond the margin of litigation, to use Rick Hasen’s useful phrase. Instead, a closer look at this cycle of election litigation paints a much more ominous picture, showing just how close our democracy is to failing. Over the past year, fringe legal theories that could upend future elections have moved to the mainstream. The courts have turned even more hostile to voting rights, standing in the way of even modest accommodations for voters. The president’s post-election litigation has crashed and burned, but it has reinforced the pernicious idea, born from Bush v. Gore, that it is appropriate for courts to step in and second-guess results after the ballots are counted. Our electoral system is a rickety old construction; there’s every reason to believe it could buckle when, inevitably, the votes in a future election are not so lopsided.
Editorial: No, Congress’s Jan. 6 count isn’t another chance for Trump to reverse his loss | Trevor Potter/The Washington Post
Jan. 6 is not another Election Day. Don’t let President Trump convince you it is. What will happen then — a joint session of Congress to receive the presidential and vice-presidential election results transmitted by the states — typically occurs every four years in relative obscurity. But this election cycle has been anything but typical. While there’s no realistic chance of anything happening Jan. 6 to disrupt the peaceful transfer of power consistent with the will of America’s voters and Monday’s electoral college votes, there is still a good chance Trump will try to make the day a super spreader event for the election disinformation with which he is relentlessly trying to infect American democracy. Foreknowledge is, however, a form of inoculation here. By understanding exactly what does and doesn’t happen Jan. 6, all of us can contribute to making that day a reaffirmation of our democratic process rather than part of a continued assault on it. As required by the Constitution’s Twelfth Amendment, the House and Senate will gather in a joint session presided over by Vice President Pence. There, the slates of electors for president and vice president from the 50 states plus the District of Columbia, received by Congress from the state governments and accompanied by certificates from the governors, will be read out, and the vote totals will be counted. This is usually a routine process — as it should be, because federal law urges any disputes over such slates to be resolved in the states by Dec. 8, ahead of the electoral college meeting Dec. 14. That is to say any disputes (which are rare to begin with) are meant to be disposed of well before Congress gathers to count the electoral votes. It’s “really a formality,” as Sen. John Cornyn (R-Tex.) has rightly called the coming session. But it is at least possible for members of Congress to raise objections to one or more slates of electors as they’re read aloud. Under a 130-year-old law called the Electoral Count Act, if one representative and one senator jointly object to a slate, then the whole process pauses while the House and Senate separately debate the objection, then vote on whether to sustain it.
Editorial: Missouri GOP’s resolution to overturn the election is worse than baseless | St. Louis Post-Dispatch
Forty Missouri House Republicans have co-sponsored a resolution that is both un-Republican and un-American. It calls on Congress to reject election results in six other states, based on President Donald Trump’s fabricated claims of mass voter fraud. This cynical attack on democracy wouldn’t have the force of law even if it were to pass the full House, but it should stand as evidence that it isn’t just the president who has gone around the bend to a dangerous place; he has brought much of his party with him. To be clear: This has been the most closely vetted election in American history, with multiple vote recounts and dozens of lawsuits — and none of it has produced evidence to suggest significant irregularities, let alone mass fraud. Judge after judge has thrown out Trump’s cases. State election officials around America, including avowed Trump supporters, have repeatedly confirmed Joe Biden’s clear victory. Yet the Missouri GOP on Monday gave committee approval to HR2, declaring the House has “no faith in the validity of the results of the 2020 presidential election” in Pennsylvania, Wisconsin, Michigan, Georgia, Arizona or Nevada. It demands a “full and fair investigation” into alleged election irregularities — ignoring the multiple bipartisan reviews that already have occurred. Barring such a probe, it says, Congress should refuse to accept the electoral votes of those states, which would disenfranchise millions.The resolution claims those states’ election laws were “likely ignored and violated in numerous ways,” but offers no evidence beyond a bunch of vague conspiracy tropes. It argues that the low rejection rate among absentee ballots somehow proves something nefarious. It regurgitates a debunked analysis by InfoWars attorney Robert Barnes that supposedly proves fraud — crediting by name this infamous conspiracy monger whose “work” has included maligning the parents of the dead children of Sandy Hook.
Editorial: Wisconsin Supreme Court Justice Hagedorn chose the rule of law over political pressure | Paul Higginbotham/Cap Times
A deeply divided Wisconsin Supreme Court dismissed President Trump’s claims of election irregularities by Dane County and Milwaukee County in the presidential and state elections earlier this week. The outcome of the Supreme Court’s decision is a reason for serious celebration. The wishes of Wisconsin voters have been given voice to a change in our government. The Supreme Court’s decision is notable for a few reasons, but two stand out. First, conservative Justice Brian Hagedorn authored the opinion for the majority. In his first term on the Supreme Court, Justice Hagedorn has demonstrated the sort of judicial independence we hope all judges and justices would display. This decision is notable for a second, and more disturbing reason — that three of the justices, Chief Justice Patience Roggensack, Rebecca Bradley, and Annette Ziegler — thought that upending a properly administered presidential election in a pique of partisan solidarity was acceptable. The partisan hacks of the Supreme Court failed to muster enough votes to overturn Wisconsin’s election, while sending a message to their far-right colleagues that they are ready and willing to ignore the law in a display of extreme judicial activism. The conservatives often excoriate liberal judges for judicial activism when a decision fails to meet their conservative and right-wing agenda. This time, though, reasonable heads prevailed, and a majority of the Supreme Court put a halt to President Donald Trump’s assault on Wisconsin’s election results. In his lawsuit, Trump sought to have over 220,000 votes tossed out based on alleged irregularities in how Dane County and Milwaukee County administered the election — an argument that could and should have been brought before the election.
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. 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.
Editorial: These Republicans may not be capable of shame, but you should know who they are | Ruth Marcus/The Washington Post
I never imagined that the aftermath of the election would pose a greater danger to American democracy than the four previous years. But here we are. Not just because of President Trump — his authoritarian impulses are a given — but because of the craven response of his fellow Republicans.With the always doomed-to-fail litigation at the Supreme Court, Republicans have gone beyond the indulge-the-toddler-while-he-cries-it-out phase of this debacle to a dangerous new stage: Incentivize the toddler. Reward his bad behavior. Encourage his belief, as poisonous to democracy as it is delusional, that the election was stolen.And they are laying the predicate for a contentious new phase of American democracy, if it can continue to be called that, in which election results — after appropriate recounts and audits and certifications — are no longer accepted. Instead they merely open the door for a second phase of legal and political guerrilla warfare in which no tactic, no lie, no baseless claim is off-limits. Democracy cannot function this way.It had looked like we dodged a bullet with Trump’s defeat. Turns out there were more in the gun.One interminable month ago, in response to Trump’s unsupported claims of electoral victory — then shocking, now routine — I wrote that history would judge the response of Republican leaders. Only those willing to ignore their gutless record over the past four years would have expected many profiles in courage. Still, what’s happened is even worse: not servile silence but vigorous incitement.Which brings us to Texas’s risible bid to have the Supreme Court throw out the election results — which the justices predictably rejected Friday evening. The dry legal language of the court’s order barely concealed its exasperation with Texas’s shenanigans. “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court noted tartly.
How low has the Party of Lincoln fallen? In answering this question, it is instructive to look at the example of Kevin McCarthy, a seven-term California congressman who, since 2019, has served as the House Minority Leader. Until Donald Trump appeared on the scene, McCarthy wasn’t regarded as particularly conservative—at least by the standards of today’s Republican Party. When, in 2015, he abandoned a bid to become Speaker of the House, some Tea Party activists celebrated. In the summer of 2016, McCarthy endorsed Trump for President, but only after the interloper from New York had sewn up the nomination. A year later, it emerged that, in June of 2016, McCarthy had told some of his fellow-members of the House Republican leadership that he believed—“swear to God”—that Trump was in the pay of the Russian President, Vladimir Putin. When the Washington Post eventually reported about these comments, McCarthy tried to laugh them off as a joke. The nature of the accommodation that McCarthy made with his conscience, when he jumped onto the Trump train, can only be speculated upon. It’s perhaps fair to assume that he didn’t realize exactly where the tracks would lead, but, given his comments in 2016, it’s also clear that he didn’t harbor any illusions about the man he was endorsing. In any case, after McCarthy took over as House Minority Leader, he followed Trump’s wishes so slavishly that the President started to refer to him as “my Kevin.” On Friday, McCarthy took the ultimate Trump-loyalist move and threw his backing behind the President’s outlandish bid to overthrow the 2020 election result. Along with a hundred and twenty-five other Republican representatives, McCarthy added his name to an amicus brief supporting the lawsuit filed by Ken Paxton, the attorney general of Texas, and backed by seventeen other Republican state attorneys general, that requested the Supreme Court throw out the duly certified election results from Georgia, Michigan, Pennsylvania, and Wisconsin.
Editorial: Republican officials have followed Trump along his dangerous and destructive path | Dan Balz/The Washington Post
President Trump’s unsuccessful but unceasing efforts to overturn the results of the 2020 election represent an unprecedented assault on the underpinnings of American democracy. They have been equally destructive to a compliant Republican Party. The depths to which the party has fallen played out in bold colors the past few days as first 17 Republican state attorneys general and then 126 Republican members of the House signed onto a lawsuit filed by Texas Attorney General Ken Paxton that asked the Supreme Court to reject the certified vote counts in Pennsylvania, Wisconsin, Michigan and Georgia and throw out the results of the election. The high court rejected the challenge late Friday, stating that Texas did not have standing to challenge how other states conduct their elections. The terse denial only underscored the folly of the support that came from members of Trump’s party. The decision came after the Trump campaign and its allies had filed dozens of other lawsuits. Those too were routinely dismissed, often in scathing language. In those prior lawsuits, no evidence of widespread fraud — certainly not enough to change the result in any of the affected states — was presented. In many cases, the lawyers did not even explicitly claim there was fraud.
Editorial: There’s Still a Loaded Weapon Lying Around in Our Election System | Richard H. Pildes/The New York Times
The 2020 election revealed longstanding fractures in the foundation of our system for conducting presidential elections. Before these lead to an earthquake in a subsequent presidential election, we need to shore up that foundation. The single most dangerous threat the election exposed was the prospect of legislatures directly appointing a state’s electors and overriding the vote of the people in that state. No state legislature has attempted to do this since at least the Civil War. But in the run-up to the 2020 election, this seemed the most likely means that might circumvent the voters and subvert the election. This concern has been proven warranted: After the Trump campaign’s postelection lawsuits failed around the country, its strategy was precisely to get state legislatures in key swing states to appoint the electors themselves. Indeed, President Trump continues to pursue that strategy even now — he reportedly twice called the Republican speaker of the Pennsylvania House of Representatives in recent days — despite these states having legally certified Joe Biden as the winner of their state’s popular vote. There is no legal basis for what the president is urging, but it calls attention to a previously obscure provision in federal election law. This provision, known as the “failed election” provision, lies around like a loaded weapon. It is the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors. The “failed election” provision traces back to the Presidential Election Day Act, first enacted in 1845. That act, after specifying the date for the presidential election, goes on to provide: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
Ken Paxton, the Texas Attorney General, seems intent on developing a name for himself as the patron saint of lost legal causes. He’s the father of the recent and long-shot case against ObamaCare, and this week he launched another implausible appeal to the U.S. Supreme Court to overturn state presidential election results.In Texas v. Pennsylvania, Mr. Paxton, joined by 17 other states and President Trump, claims that four states have harmed Texas by violating their election laws in ways that poisoned the result. He wants the Court to take the case directly, in “original jurisdiction,” and order the legislatures in Pennsylvania, Wisconsin, Michigan and Georgia to overturn election certifications for Joe Biden. The Court asked the four states to reply by 3 p.m. Thursday, but it would be a legal and political earthquake if the Court took the case. Cases of original jurisdiction—when a state bypasses lower courts and goes directly to the Supreme Court—are rare and typically involve interstate disputes. This one concerns election law in states other than Texas. The first issue is whether Texas has the legal standing to sue. To have standing, a plaintiff must point to a specific injury and there must be some possibility of a remedy. In this case, what is the injury? No one is interfering with Texas’s authority to deliver its Electoral College votes. Mr. Paxton argues that the four states have harmed his state and violated the Electors Clause of the Constitution by holding elections with major procedural irregularities. He’s saying Texas can be harmed by the way another state manages its elections. But if Texas can sue on these grounds, then some unhappy state will sue another state after every close election whose outcome it doesn’t like.
Editorial: Republicans are standing up to Trump. Unfortunately, it’s too little, too late | Rebecca Solnit/The Guardian
The first time I watched Georgia voting systems implementation manager Gabriel Sterling’s furious tirade about the threats against him and his coworkers, I was impressed. Here was a Republican, a self-described conservative, telling off the president and all the people making those threats. “Death threats. Physical threats. Intimidation. They have lost the moral high ground. I don’t have all the words for this because I am angry.” He was clearly furious. He talked about a young contract worker: “There’s a noose out there with his name on it. This kid just took a job and it’s just wrong. I just can’t begin to explain the level of anger I have right now … Mr President, it looks like you probably lost the state of Georgia. Stop inspiring people to commit acts of violence.” It didn’t take long for me to sour on his indignation. They never had the moral high ground. The death threats and intimidation against him and his co-workers are wrong. However, they’re not the first people to get them but in some sense the last, and if you care about people the president has attacked verbally and urged violence against, you could have started caring during the 2016 campaign. Nothing suggests Mr Sterling did, since he belongs to a party that has supported Trump and, more broadly, campaigns of hate and discrimination for the last 40 years and more. In recent years, Trump has urged police to treat arrestees more roughly, audiences to harass and even rough up journalists and dissidents in his crowds, and is well-known for the 26 credible accounts of sexual abuse and violence with which women have charged him. He’s the guy who pardoned Sheriff Joe Arpaio in 2017 for his conviction for disobeying a judge’s order to stop racial profiling.