By November 5, it had become clear that President Donald Trump was not going to win a second term. Trump’s lead in Pennsylvania was slipping, and with it went any real chance of electoral victory. Trump had spent months baselessly claiming that the election would be corrupted by the Democrats, so it wasn’t particularly surprising when Republicans immediately filed legal challenges to stop certain votes from being counted. Somewhat more unexpectedly, pro-Trump media figures began calling for the much more drastic measure of throwing out election results altogether.
Fox News host Mark Levin tweeted in all caps that Republican state legislatures “have the final say over the choosing of electors” and called on them to “get ready to do your constitutional duty.”
Levin’s suggestion closely mirrored a set of concerns published in The Atlantic in late September. The article’s writer, Barton Gellman, was scoffed at by some for promoting “political panic porn.” In hindsight, however, the very scenario he warned about has become the Trump campaign’s electoral strategy.
“Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states,” wrote Gellman. “Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice.”
In the weeks that followed, Levin’s call for an extreme last-ditch strategy to keep Trump in power was discussed on Fox News in unsettlingly casual terms.
Fox News senior political analyst Brit Hume alluded to this approach during the network’s election night coverage. “It’s worth keeping in mind as we follow these lawsuits, that what they’re really mostly about is what state law -- that is to say, the law passed by state legislators -- says are the rules and regulations of an election,” said Hume. “And some state legislatures adjusted their rules and regulations to accommodate COVID-19. Some states did not. But the Constitution grants the authority to set election rules to state legislatures, not state courts, not state election boards, but state legislatures.”
This was one of Fox's first attempts to push the “Independent State Legislature Doctrine,” at the time a little known legal theory that postulated -- contrary to constitutional history and precedent -- that state legislative bodies could override not only the other state branches of government, but also the popular vote, when it came to setting election procedures and choosing presidential electors.
Sean Hannity stopped just short of echoing Levin’s message during the November 5 edition of his eponymous Fox News show. Hannity claimed that “nobody can testify to the legitimacy of what [Pennsylvania’s] counting was,” and so the only reasonable remedy would be to hold a “do-over” election in that state. During his radio show, however, Hannity promoted Levin’s basic point.
During the November 6 edition of Fox Business’ Lou Dobbs Tonight, Tom Fitton, president of the right-wing group Judicial Watch, argued that Republican-led legislatures in Georgia, Pennsylvania, Michigan, Wisconsin, and Arizona should “make a stand on behalf of the rule of law.”
“Are they going to endorse what went on this week or are they going to appoint a clean slate of electors that supports President Trump?” Fitton asked before urging viewers to pressure members of Congress. “If I were in Congress, I'd be telling these states, ‘You better keep up on -- you better be honest here, because we're not going to accept your votes if your -- if your -- if your election is a sham.’”
On Sunday, November 8, former special counsel Ken Starr was interviewed on Life, Liberty & Levin, where he provided a few choice antidemocratic quotes. “To count every vote may be a crime ... under federal law. It's definitely a crime under state law.” Starr called it “shameful” that Biden supporters had adopted “count every vote” as a sort of unofficial motto, calling it “an invitation for absolute lawlessness.”
“If the legislature of a state -- let’s just say Pennsylvania -- believes that the election cannot be trusted, it can step in and determine how the electors are chosen from the commonwealth,” Starr said to Levin, who obviously agreed.
During a November 11 appearance on Bill Hemmer Reports, Fox News White House correspondent John Roberts said, “The anger out there in these red states is so deep and so palpable that GOP legislators may have a difficult time seating Biden electors,” without noting that this would be a massive blow to democracy.
On Fox’s website, Fox media commentator Brian Flood accused other media outlets of hypocrisy for voicing opposition to Trump’s end-run around the electorate. Flood cited right-wing Twitter personality Stephen L. Miller’s rebuttal to CNN political correspondent Abby Phillip after she said that Trump’s actions were “out of bounds.” Miller’s point was to highlight a handful of people who urged delegates to the Electoral College to go rogue back in 2016. Neither Flood nor Miller noted the obvious difference between the two situations: In 2016, the calls were from people not associated with Hillary Clinton’s campaign, whereas the current situation is being pursued by the candidate himself.
More recently, Fox & Friends Weekend co-host Will Cain this week pointed to the Trump campaign's strategy and said that “there may not be enough evidence for a court system [to overturn the election], but there should be enough evidence for state legislators to change their electors.”
Fox has also provided a platform for Trump’s campaign to make the case for this wild strategy.
On November 12, White House press secretary-cum-Trump campaign spokesperson Kayleigh McEnany joined Fox & Friends and defended the proposal as constitutionally “accurate.”
Trump lawyer Jenna Ellis appeared on the November 17 episode of Fox News @ Night with Shannon Bream. Ostensibly one of Fox’s “news-side” hosts, Bream allowed Ellis to make a direct call for the Michigan state legislature to “get involved.” Rather than pushing back on the undemocratic idea, Bream simply said, “All right. We want transparency -- across the board.”
On November 19, one-time Trump lawyer and all-time conspiracy theorist Sidney Powell made an appearance on Fox Business’ Lou Dobbs Tonight. “The entire election, frankly, in all the swing states should be overturned and the legislatures should make sure that the electors are selected for Trump.”
The strategy is a dangerous one to even entertain, but it shouldn’t come as a surprise. This has been decades in the making.
In the book How Democracies Die by Steven Levitsky and Daniel Ziblatt, the authors highlight why a reliance on norms as opposed to clear-cut rules leaves American democracy vulnerable to demagogues with strong party support.
Unwritten rules are everywhere in American politics, ranging from the operations of the Senate and the Electoral College to the format of presidential press conferences. But two norms stand out as fundamental to a functioning democracy: mutual toleration and institutional forbearance.
Mutual toleration refers to the idea that as long as our rivals play by constitutional rules, we accept that they have an equal right to exist, compete for power, and govern. We may disagree with, and even strongly dislike, our rivals, but we nevertheless accept them as legitimate. This means recognizing that our political rivals are decent, patriotic, law-abiding citizens—that they love our country and respect the Constitution just as we do. It means that even if we believe our opponents’ ideas to be foolish or wrong-headed, we do not view them as an existential threat. Nor do we treat them as treasonous, subversive, or otherwise beyond the pale. We may shed tears on election night when the other side wins, but we do not consider such an event apocalyptic. Put another way, mutual toleration is politicians’ collective willingness to agree to disagree.
Levitsky and Ziblatt explain the rise of autocrats through a soccer analogy.
To better understand how elected autocrats subtly undermine institutions, it’s helpful to imagine a soccer game. To consolidate power, would-be authoritarians must capture the referees, sideline at least some of the other side’s star players, and rewrite the rules of the game to lock in their advantage, in effect tilting the playing field against their opponents.
The authors explain in detail how Trump fits the criteria for an autocrat and why they believe such a label matters, but they also emphasize the extent to which he has been enabled by congressional Republicans.
What should worry the country now has less to do with Trump as an individual and much more to do with the Republican Party as an antidemocratic institution. Trump’s attempts to retain power will almost certainly fail, but the party infrastructure that allowed this to even be an option will remain. This makes for a messy reality that can be difficult for mainstream news media to accurately cover.
When one party has shown its willingness to abandon the norms that have kept the U.S. political system intact, and when that party is supported by tens of millions of Americans, it’s understandable that journalists may worry that accurate reporting can come off as biased against that party. The press needs to resist the urge to normalize autocratic party impulses and commit to reporting out the truth even if it makes for overwhelmingly negative coverage for one side of the political spectrum or the other.
This didn’t start with Trump; it won’t end with him, either.
Days before the 2000 election, the New York Daily News reported on a scheme being plotted by George W. Bush’s campaign that illustrates just how deeply asymmetrical the two main U.S. political parties are when it comes to a belief in norms and the rule of law.
Reporter Michael Kramer asked Democratic candidate and then-Vice President Al Gore’s team what would happen if Bush were to win the popular vote but Gore won the Electoral College.
“Then we win," he quoted a Gore aide. "You play by the rules in force at the time. If the nation were really outraged by the possibility, then the system would have been changed long ago. The history is clear.”
When Kramer asked the Bush team the same question, a Bush aide said, “The one thing we don’t do is roll over. We fight.” The campaign had been preparing for exactly that scenario, plotting what amounted to “a popular uprising” led by Bush and his supporters, calling for the Electoral College to be discarded and for Bush to be installed as president.
“We’d have ads, too,” a Bush aide told Kramer. “And I think you can count on the media to fuel the thing big-time. Even papers that supported Gore might turn against him because the will of the people will have been thwarted.”
As we all know, the 2000 election ended up going the opposite way, with Bush eking out an Electoral College victory while losing the popular vote. Gore’s team never made a concentrated appeal for the rules to be thrown out, but instead pinned its hopes on winning the state of Florida (and with it, the Electoral College).
The Electoral College may be a bad system. There are plenty of arguments to be made about its unfairness. But once you go into an election with the understanding that the Electoral College is what candidates need to win, those are the rules that need to be followed. Gore understood that. As vice president, Gore was tasked with leading a joint session of Congress to count the votes in the Electoral College. Every so often, a Democratic member of the House would object to the outcome, but Gore, understanding that he had lost according to the rules as written, gaveled them down, dismissing those objections.
In 2020, we are all witnessing just how fragile our democracy is, and how the same party that plotted out an uprising to overturn unfavorable results in 2000 is just as willing to do it today. When that Bush campaign aide said, “I think you can count on the media to fuel the thing big-time,” this is what that looks like: Fox News calling for entire elections to be thrown out because the network didn’t get the result it wanted. The problems of 20 years ago have only gotten worse, and unless the press is willing to take a stand in the name of democracy and against autocrats and their enablers, the future looks pretty bleak.