As Trump lays the ground for another presidential run, Republicans impose further restrictions on voting rights. Daniel Lazare sees a looming constitutional crisis
More than six months after Donald Trump’s January 6 assault on the US Capitol, we now have a better understanding of what the event was all about.
Yes, it was an effort to seize hold of America’s decrepit constitutional machinery and twist it in such a way as to alter the outcome of a presidential election. No matter how inept, impetuous or poorly thought-out, the episode therefore still qualifies as an attempted coup d’état.
But where a coup implies a one-time power grab, it is now clear that January 6 was the opening salvo in something more complex: ie, a long march through Congress and states, aimed at taking power once and for all on behalf of the extreme right. Republicans may have seemed dazed and confused for a day or two, but, after pulling themselves together and pledging fealty to Generalissimo Trump, they have thrown themselves into a political offensive that is now growing from week to week.
The offensive is multi-dimensional. One line of attack is presidential, as Trump gears up for another White House run in 2024. Strutting, joking and rambling on seemingly at random - but always circling back to the main point at hand - the ex-president was at his most Mussolini-esque in Phoenix, Arizona, last weekend, as he raged against 2020 as “the most corrupt, dishonest and unfair election in the history of our country”. Apparently, the “Democrats know it, the corrupt media … they know it, big tech knows it, and, most importantly, we the American people know it”. He went on:
What’s happening to our country is sadly what happened to so many others. We are at the beginning of a communist system. Radicals are seizing power and destroying everything we hold dear as Americans. And it’s happening, and I said it was going to happen. They dismantle the rule of law, censor speech, take over the free press, imprison political opponents - you see what’s happening all over, look at what I’ve been through for years - and, of course, hold fake, phony elections.
Joe Biden a communist? The man who promised a roomful of wealthy campaign contributors that “nothing would fundamentally change” if he became president? Democrats will sneer, yet the implications are chilling. In the span of a generation, Democrats have gone from being ordinary opponents to existential foes hostile to everything America stands for and who must therefore be stopped at all costs. This in itself is a recipe for civil war.
The other implication is that if Republicans lose the next round, it will not be because they receive fewer votes, but because “the radical-left Democratic communist party rigged and stole the election”, as Trump put it in Phoenix.1 This is Trump’s central claim: because Democrats tried to use the Russian-collusion hoax to drive him out of office, starting in 2017, they must therefore have manipulated the vote to deprive him of victory in 2020. Hence, Republicans are justified in doing everything they can to prevent them from stealing another election in 2024.
This is also a recipe for civil war. Instead of settling matters, January 6 opened the door to two, three, many such election disputes, as America’s 234-year-old constitution continues its downhill slide.
But the presidency is not the only issue over which the Republican offensive is taking place. A second line of attack is unfolding on Capitol Hill, the scene of this winter’s riot, where Republicans voted overwhelmingly in late January against impeaching Trump for inciting insurrection and then, when the Democratic majority went ahead and did it anyway, voted 43-7 against convicting him in the Senate.
Trump was guilty as charged. His message on January 6 - “You’ll never take back our country with weakness. You have to show strength and you have to be strong” - sent thousands of maddened rightists surging past police barricades, as members of Congress scurried to safety. It resulted in the most dramatic breach of constitutional norms since the Civil War. But, while hundreds of small fry are now facing criminal prosecution for their role on January 6, Republicans have succeeded in blocking any effort to hold the instigator-in-chief to account, so he can be free to do the same thing in the next election cycle.
Meanwhile, Republicans are using their near-majority to bring Biden’s legislative initiatives to a crashing halt in the Senate, while sabotaging Democratic efforts to launch a formal inquiry into the insurrection in the House. Their strategy: demand that House speaker Nancy Pelosi fill the investigative panel with Trump loyalists and then accuse her of “politicising” the inquiry when she balks. House Republican leader Kevin McCarthy was at his demagogic best when he accused Pelosi of “an egregious abuse of power” for blocking two fiery Trump stalwarts, while insisting that his own motives were pure as snow. All he wanted, he insisted at a July 21 press conference, was to get to the bottom of two vital questions: “Why was the Capitol so ill-prepared for that day when they knew on December 14 they had a problem? And what have we done to make sure that never happens again?”2
But if McCarthy - an ultra-rightist from southern California - was really interested in preventing a reoccurrence, then punishing Trump for inciting the riot to begin with would have been a good place to start. (Needless to say, McCarthy voted against impeachment.) As to why the Capitol Hill police were unprepared, the answer is obvious: no-one knew how to respond to a chief executive openly preparing for an assault on congressional prerogatives.
Holding Trump to account would have been a good way of answering that question as well. But McCarthy does not want anyone getting to the bottom of January 6, because he knows that he and his fellow Republicans will be implicated if they do. For that reason, he is doing everything in his power to see to it that Congress ends up defenceless in the event of another assault.
Finally, there is a third Republican offensive underway, this time at the state level. It consists of a deluge of anti-voting bills, mainly in state legislatures in the west and south, aimed at scaling back the use of mail-in ballots, imposing harsh new personal-identification requirements - the poor in the US often lack drivers’ licences or other forms of ID - and limiting the number of polling places. Even worse, Republicans are expanding the power of activists doubling as poll watchers. Currently, poll watchers are required to observe from a distance and then report any improprieties that may arise - which they rarely do. But bills likely to pass in Texas and other states will allow them to range at will throughout voting areas, videotaping and snapping photos as they scrutinise ballots, registration forms and tabulation procedures. Opportunities for intimidation will be rife. Chances to interfere and disrupt will be boundless.3
Other state legislative initiatives will impose criminal penalties on election officials guilty of even minor procedural infractions. In Republican-controlled Texas, that could mean any action that “would make observation not reasonably effective” for a poll watcher. In Florida, it could mean failing to keep a ballot drop box under continuous supervision. Sending absentee ballots to voters who have not specifically requested them could result in criminal penalties as well.4
The goal is not only to make it more difficult to vote, but more difficult to hold an election that will survive a legal challenge. If, as a consequence, Republicans are in a better position to challenge state election tallies when it comes time for Congress to certify the outcome in early 2025, then the effect will be to throw the election into the House, where the party enjoys a distinct advantage, thanks to arcane voting rules dating from 1803. (The 12th amendment requires members to vote not as individuals, but as members of state delegations - a boon to Republicans, since they tend to control more states due to their rural predominance.) Republicans would emerge victorious despite losing the popular vote, just as they did in 2000 and 2016.
It is absurd. But, since such language is baked into America’s sacred constitution, it is unchangeable short of revolution. The upshot would be a defeat for electoral democracy - the greatest to date - and a victory for the notion that ancient constitutional machinery must prevail over anything resembling the popular will. The constitution will win, while “we the people” will end up crushed beneath a document created in their name.
2024 is a long way off, and so is even November 2022, so doom-and-gloom forecasts may be premature. Still, the overall pattern is unmistakable. A growing constitutional breakdown is what is allowing the ultra-right to run riot. After losing the popular vote in seven out of the last eight presidential elections, Republicans know they are in danger of slipping into permanent minority status. So they have thus resolved to use every device that an undemocratic constitution provides to maintain their grip. This means making full use not only of the filibuster, but of an Electoral College that favours small rural states over large urban ones, of a Supreme Court devoted to constitutional traditionalism, and of a painfully inadequate constitutional amending clause that all but closes the door to structural reform.
They are also making full use of a diffuse power structure composed of hundreds of ruling institutions - not just the White House, two houses of Congress and the federal judiciary, but similar quadripartite arrangements in nearly all of the 50 states. It is a leaderless swarm that functions as a kind of inertial guidance system, in which a power centre veering off in one direction automatically triggers an equal and opposite response by the others in the name of ‘checks and balances’ and states’ rights. For a party controlling 61% of state legislatures, the advantage in pushing American politics in an increasingly conservative direction is inestimable.
Biden may think he is the boss, but he is really just first among a multitude of equals determined to block him at every turn. While America’s founders equated democracy with mob rule, they ended up creating a new and expanded form of mob rule that is increasingly undemocratic. The more unresponsive the system grows, the more it is in danger of cracking wide open - again.
Donald Trump Phoenix, Arizona, Rally Speech Tanscipt Juy 24: https://www.rev.com/blog/.↩︎