It Is Not Undemocratic to Call Trump’s Presidency ‘Illegitimate’

What happened in 2000 can happen again. Photo: BRENDAN SMIALOWSKI/AFP via Getty Images

Last week, the attorney general of the United States argued that mail-in ballots are inherently corrupt, that Democrats will likely produce 100,000 fake votes in Nevada on Election Night, and that liberals are “projecting” when they accuse Republicans of undermining confidence in the integrity of the upcoming presidential election.

Here is how Bill Barr phrased these arguments in an interview with Chicago Tribune columnist John Cass:

“There’s no more secret vote with mail-in vote. A secret vote prevents selling and buying votes. So now we’re back in the business of selling and buying votes. Capricious distribution of ballots means (ballot) harvesting, undue influence, outright coercion, paying off a postman, here’s a few hundred dollars, give me some of your ballots,” the attorney general said …


“You know liberals project,” Barr said. “All this bulls— about how the president is going to stay in office and seize power? I’ve never heard of any of that crap. I mean, I’m the attorney general. I would think I would have heard about it. They are projecting. They are creating an incendiary situation where there will be loss of confidence in the vote.


“Someone will say the president just won Nevada. ‘Oh, wait a minute! We just discovered 100,000 ballots! Every vote will be counted!’ Yeah, but we don’t know where these freaking votes came from,” Barr said, promising to watch “Key Largo.”

One might write off Barr’s remarks as ironic bluster, but his comments are more concerning in context than they are in isolation. Public polling suggests that there is a stark partisan discrepancy in voting methods; Democrats are more likely to mail in their ballots, and Republicans are more likely to cast them in person. And since several swing states forbid election authorities from processing mail ballots before Election Day, this discrepancy means that it’s quite possible Donald Trump will be in the lead on November 3, only to see his vote tally eclipsed over the ensuing days. Thus, when the head of federal law enforcement suggests that mail-in ballots are inherently suspect (and that any last-minute increase in the Democratic Party’s ballot share is likely to be a product of fraud), he is priming Republican voters to reject the accuracy of any vote that Trump loses.

The president, for his part, has done the same thing — only with less subtlety. Trump has argued that we “Must know Election results on the night of the Election,” not days later, suggesting that only the votes counted on the night of November 3 will be legitimate. And he has subsequently asserted that “the only way we’re going to lose this election is if the election is rigged.”

Two years ago, when ballots counted after Election Night cost Republicans several House seats — as a result of partisan discrepancies in voting methods that were anticipated by all informed election observers — the party’s leadership baselessly accused Democrats of foul play. Meanwhile, Republicans mobilized to oppose a potential recount in Florida’s Senate race, explicitly treating a battle over whose votes would be counted as an extension of the fight for voters’ loyalties. As the New York Times reported in November 2018:

The concerted effort by Republicans in Washington and Florida to discredit the state’s recount as illegitimate and potentially rife with fraud reflects a cold political calculation: Treat the recount as the next phase of a campaign to secure the party’s majority and agenda in the Senate.

… The Republicans’ strategy in Florida reflects their experience in the 2000 presidential recount in the state. Party strategists and lawyers say they prevailed largely because they approached it as they did the race itself, with legal, political and public relations components that allowed them to outmaneuver the Democrats, who were less strategic and consistent with their lawsuit targets and public remarks about the recount.

So: The president and the head of federal law enforcement are both saying that the voting method favored by Democrats is corrupt and that the public should be suspicious of belated vote counts that redound to Joe Biden’s benefit. Republican operatives say that they view manipulating public impressions about the legitimacy of counting every vote — and seeking the help of judicial-branch allies to frustrate attempts to count all ballots — as an extension of the campaign process. And they see the 2000 election as proof of concept for this idiosyncratic mode of electioneering.

To Brookings fellow Shadi Hamid, none of this should trouble liberals.

In a column for The Atlantic this week, Hamid suggested that fears of Trump retaining power by subverting the electoral process are mere “catastrophism.” To the contrary, Hamid finds himself “truly worried about only one scenario: that Trump will win reelection and Democrats and others on the left will be unwilling, even unable, to accept the result.”

The argument that some Democrats have exaggerated Trump’s authoritarianism is defensible. Given the decentralized nature of America’s election process, there is no way for the president to “rig” the vote in any systematic fashion; if Biden wins in a landslide, there will be little that the GOP’s strategists and lawyers can do to subvert the electorate’s will. And Hamid’s concern that blue America would have difficulty reconciling itself to another unexpected loss — particularly to an impeached nativist who won fewer votes than their candidate — is also reasonable.

What is difficult to understand is how Hamid arrives at the conclusion that Democratic disaffection with a Trump victory poses a greater threat to the Republic than the president himself. Specifically, the columnist appears to think it more corrosive to democracy for liberal intellectuals to describe the Electoral College as “illegitimate” than it is for the U.S. to have a president who flouts the law, encourages political violence, strips legal status from hundreds of thousands of longtime U.S. residents, and expresses open contempt for the bedrock principles of a liberal democracy.

In isolation, an Atlantic column that makes a few fair points in service of a flawed thesis might not merit extended criticism. But in its sweeping imprecision, Hamid’s argument risks validating the Republican Party’s more demagogic efforts to portray liberal dissidence as the real authoritarianism and stigmatize modes of rhetoric and resistance that may prove necessary for disempowering the conservative movement. So it’s worth scrutinizing Hamid’s argument in some detail.

Hamid writes, “A loss by Joe Biden under [present] circumstances is the worst case not because Trump will destroy America (he can’t), but because it is the outcome most likely to undermine faith in democracy, resulting in more of the social unrest and street battles that cities including Portland, Oregon, and Seattle have seen in recent months.”

This is a curious thesis in multiple respects. Perhaps having a president who strong-arms foreign nations into investigating his domestic political opponents, defends extrajudicial killings of criminal suspects as necessary “retribution,” describes journalists as enemies of the people, and baldly lies to the public about matters as serious as a historic pandemic will not “destroy” America. But then, a bit of social unrest in a few cities won’t either. Further, it is not clear why liberals shouldn’t lose faith in the justice of their political system if such a president retains power while receiving fewer votes than his opponent yet again, nor why they should refrain from expressing their disaffection through street demonstrations — a form of mass political participation with a storied place in America’s democratic tradition.

Nevertheless, to substantiate his claim that liberals will refuse to accept Trump’s victory — thereby precipitating some unspecified social cataclysm — Hamid observes:

Liberals had enough trouble accepting the results of the 2016 election. In some sense, they never really came to terms with it. The past four years have witnessed the continuous urge to explain away the inexplicable, to find solace in the fact that the voters betrayed them. How could so many of their fellow Americans side with a racist and a fabulist, someone so callous and seemingly without empathy? It was easier to think that those Americans had been lackeys, manipulated and deceived, or that they simply hadn’t understood what was best for them …


… Liberals have convinced themselves that Republicans are, in one way or another, cheating. In addition to all of Trump’s norm-breaking, the GOP is gerrymandering, purging voter rolls, and shutting down polling places in Black neighborhoods. Yet Republicans wouldn’t have been able to do these things if they hadn’t won enough statewide and local offices in the first place. They have put themselves in a position to enact their favored redistricting and election procedures by finding candidates and pursuing policies that made them competitive in formerly Democratic states, demanding a level of party discipline that Democrats can seldom muster, and getting their supporters to turn out for down-ballot races. 

Here, Hamid posits an expansive definition of what it means to “accept” the outcome of an election. It was not sufficient for Hillary Clinton to concede Trump’s victory, or for liberals to tacitly honor his right to rule by continuing to pay taxes and obey federal laws. Rather, accepting the 2016 election results would have apparently required Democrats to believe that Trump’s voters were neither “manipulated,” nor “deceived.” Given that Trump ran a historically dishonest campaign (even by the mendacious standards of American electoral politics), it is not clear why Democrats shouldn’t believe his supporters were misled (especially when individual Trump backers routinely demonstrate their own bamboozlement in interviews). Meanwhile, to the extent that liberals subscribe to a universalist conception of good government (rather than to moral relativism), they must necessarily believe that Trump’s voters did not understand what was “best for them,” in the final, enlightened analysis.

Hamid’s comments on Republican voter suppression and gerrymandering are puzzling in a similar respect. The columnist asserts that the reason the GOP succeeded in taking power in so many states over the past decade was because they pursued policies that made them competitive. This is a plausible hypothesis. But considering the unpopularity of many state-level Republican policy priorities — cutting rich people’s taxes and poor people’s Medicaid, for example — it’s not obvious that the tea-party wave was powered by the public’s thirst for small government. To the contrary, the weight of the political-science evidence would suggest that Republicans leveraged the natural advantage of out-parties in midterms, the weakness of the economy in 2010, white revanchism in the face of a Black president, and the strength of conservative propaganda networks into a landslide in spite of an economically libertarian agenda that had little innate appeal to the median voter. Republicans then used the fortuitous coincidence of their wave election with a census year to insulate their power against democratic rebuke through aggressive gerrymandering. In some places, the combination of this gerrymandering with the natural tendency of winner-take-all districting to overrepresent (predominately white) rural areas has made it effectively impossible for the Democratic Party to gain control of state governments — even when their candidates win a large majority of votes.

Hamid never explicitly says what he fears liberals will do if Trump wins reelection. If his argument is merely that Democrats must not foment secessionist movements, court faithless electors, or embrace fatalism, then it wouldn’t be objectionable. Having a lawless president secure reelection against the will of a plurality of the voting public — and with the aid of myriad acts of discriminatory disenfranchisement — will do grievous harm to our fragile facsimile of a democracy. But attempting to nullify a clear and clean Trump victory, whether through violent unrest or other means, is more likely to abet his personal authoritarianism and accelerate the Republic’s collapse than it is to curb or avert those evils. So long as an electoral path to disempowering right-wing authoritarianism remains remotely plausible, it is preferable to any alternative (especially in a nation with our history and ratio of firearms to people).

But throughout the essay, and in subsequent Twitter commentary on it, he implies a different argument — that liberals must forswear rhetoric that calls the legitimacy of America’s status-quo political institutions into question. Thus, Democrats must not call the Electoral College “illegitimate,” or the president’s voters’ “deceived,” or Republican voter suppression “cheating.” As Hamid wrote on Twitter Wednesday, “If Democrats claim EC results are ‘illegitimate’ without the popular vote, this is fundamentally undemocratic. The Electoral College is itself the product of the democratic process … What happens if we can’t change the Electoral College? Does that mean every single election the Republicans win with the EC but not the popular vote for, say, the next 20 years will be considered illegitimate? How exactly would our democracy survive that?”

Illegitimate is a word with a variety of definitions. The Electoral College awarding the presidency to a candidate who loses the popular vote is obviously legitimate in the sense of being “in accordance with the laws” (assuming Trump does not secure his Electoral College majority by blocking a full ballot count through lawsuits). But it is not necessarily legitimate in the sense of being “in accordance with the established standards” of democratic republics. Further, it is debatable whether a president elected with fewer votes than his opponent would meet the modern understanding of John Locke’s threshold for political legitimacy, which holds that a government “is not legitimate unless it is carried on with the consent of the governed.” Separately, to the extent that Donald Trump has committed “high crimes and misdemeanors” in office — as the weight of the evidence and multiple conservative members of Congress suggest — then his continued occupation of the Oval Office is at least arguably illegitimate in every sense of the word.

The point here is not merely semantic. At this moment in history, the tension between lawfulness and democratic legitimacy is acute. Trump’s handpicked head of federal law enforcement declared Wednesday night that “all prosecutorial power is vested” in himself. Barr has used that authority to provide extraordinary leniency to Trump’s allies and to threaten exceptional punishments against the administration’s adversaries. Assuming a judiciary stacked with conservative-movement operatives declines to censure Barr’s actions, his selective “sedition” prosecutions will boast formal legality. Are small-d democrats therefore obligated to declare Barr’s endeavors “legitimate”? Hamid’s argument would suggest as much. After all, Barr wouldn’t have been able to launch nakedly partisan investigations of the FBI — or float the idea of prosecuting the Democratic mayor of Seattle for her undue skepticism of law enforcement — if Trump hadn’t won an election through a democratic process in the first place.

Such reasoning is patently absurd. More importantly, it’s strategically unwise. The law is less stone than it is plastic. Popular perceptions of legitimacy inform formal definitions of legality. Throughout its history, the Supreme Court has demonstrated a sensitivity to public opinion, bending established juridical orthodoxy to appease the forces of the majority and safeguard its own authority. This point is relevant to the unlikely (but far from impossible) scenario of a contested vote this November for reasons that Republican election lawyers made explicit to the New York Times two years ago: There is a “public relations component” to winning a legal battle over how votes will be counted. Republicans are preemptively trying to delegitimize one tool that Democrats will have for shaping opinion in such a scenario: mass street protests. In recent days, the president has vowed to “put down” Election Night demonstrations with overwhelming force, while Tucker Carlson has instructed his viewers to interpret mass protests following Election Day as one facet of a looming “coup.” In this context, liberal intellectuals should be pushing back against this equation of dissent with anti-democratic insurrection, not validating it.

Finally, in the far more likely scenario that Democrats win control of the federal government through a decisive electoral victory, liberals must pressure the party to make our established political institutions more democratic. The conservative movement owes its present power to structural biases within these institutions that overrepresent its white rural base. Given that this movement has spent the Trump era broadcasting its indifference to liberal democracy — and that, in a polarized, two-party system, Republicans are unlikely to be in the wilderness for long — if Democrats secure a brief moment in power, they must use it to enhance popular sovereignty in a manner that erodes the political basis for ongoing minority-led rule by the right. Doing that will require overcoming the public’s status-quo biases and reflexive deference to established institutions — which itself will involve, among other things, contesting the legitimacy of the legislative filibuster and of a Senate that denies representation to U.S. residents in Washington, D.C., Puerto Rico, and other territories, while awarding wildly disproportionate influence to America’s white majority. (Mitch McConnell and other conservative apparatchiks are already condemning Democratic proposals to award statehood to D.C. and Puerto Rico as assaults on “the nation’s small ‘d’ democracy.”)

Hamid and other liberal critics of anti-Trump “catastrophism” are surely well intentioned. One way to read the former’s vaguely worded column is as an argument for Democrats to reject fatalism and modify their agenda to better appeal to white rural America. This would be a reasonable (if fraught) prescription. But if this was Hamid’s point, he could have made it without downplaying the authoritarianism of the present administration or implying that non-electoral forms of resistance to a lawless president are anti-democratic — or pretending that small-d democrats have nothing to fear but fear of Trump itself.

It Isn’t Undemocratic to Call Trump’s Rule Illegitimate