This is a dangerous time in our country’s history. Our system of government relies on two strong political parties that, whatever their disagreements on policies, share a common agreement to abide by the outcome of free and fair elections. Elections alone are not sufficient to sustain our democracy. It is what comes after those elections — a peaceful transfer of power — that is as essential to democracy as fair election rules themselves.
But just as peace is not simply the absence of war, the peaceful transfer of power requires more than simply avoiding bloodshed. Rather, defeated candidates must accept the outcomes of elections and urge their supporters to do the same. If one side refuses to admit defeat, even when that defeat is clear, then democracy cannot survive.
Our nation’s leaders on both sides of the aisle used to accept defeat gracefully. When President Jimmy Carter lost his reelection to Ronald Reagan, he sent a message to the new president-elect: “I congratulate you and pledge to you our fullest support and cooperation in bringing about an orderly transition of government in the weeks ahead.” When President George H. W. Bush faced a similar defeat in 1992, he told his supporters on election night that “there is important work to be done, and America must always come first. So we will get behind this new President and wish him — wish him well.”
Even in the more recent partisan era, defeated candidates have conceded defeat after exploring their legal options. In 2000, Al Gore came within one vote on the U.S. Supreme Court from winning the presidential election. When he lost, however, he gave a televised address in which he stated clearly his support for the new president: “I say to President-elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country. Neither he nor I anticipated this long and difficult road. Certainly, neither of us wanted it to happen. Yet it came, and now it has ended, resolved, as it must be resolved, through the honored institutions of our democracy.” In 2016, Hillary Clinton began her concession speech — delivered the morning after the election — as follows: “Last night, I congratulated Donald Trump and offered to work with him on behalf of our country. I hope that he will be a successful president for all Americans.”
Compare those concessions with the words of former President Trump. Even before the first ballots were counted, he was falsely claiming the results were “rigged.” Since Election Day, he has willfully spread false information about the outcome of the 2020 election. He never once pledged to support President Joe Biden, congratulated him or even showed the common decency to offer him well wishes. To this day, despite mounting dozens of failed legal challenges to election results across the country, he maintains he won the election.
But it is not just Trump; the entire Republican Party is doubling down on the Big Lie.
First, Republican legislatures are politicizing the composition of the election officials responsible for tabulating ballots and certifying elections. What was once a ministerial act performed by bipartisan or nonpartisan officials is now hostage to the whims of Republican-dominant election boards.
Second, Republicans are undermining confidence in our election systems through misinformation about the 2020 election results, as well as bogus audits and reviews aimed at casting doubt on the accuracy of our elections.
Finally, Republicans have made clear that if they lose an election — even as far in the future as the 2022 midterms — that their loss is the result of fraud. That is, the Republican Party is closing the window for candidates to accept that they lost because the Democratic candidate received more votes. The GOP is setting the framework for making heroes of losers who won’t concede while villainizing the members of their party who congratulate their opponents.
There simply is no historical analog in American politics to the current war the Republican Party is waging on election results and the transfer of power. Republican critics will say that I am being unfair in painting this as a partisan issue and will argue that I am overlooking the fact that Democrats have also refused to accept the outcome of close elections.
The two examples they most often cite are the 2000 and 2016 presidential elections. While both were close, hard-fought campaigns, both ended with concessions and pledges of support by the defeated candidate. While in each case, a handful of individual Democratic members of Congress protested the results, neither effort was supported by the losing candidate and neither effort led to a wholesale rejection of the results by the Democratic Party, its officeholders or supporters.
With little more than a year until the midterm elections, we must act now to fix this. This won’t be easy, because the real, long-term solution is the recommitment of Republican Party leadership to the ideals of democracy — and that is nowhere in sight. There are, however, some processes that can be put in place now to help protect us from the worst outcome.
First, the U.S. House and Senate must strengthen their rules to prevent members from undermining democracy. This can be done either through legislation or via internal rules. Candidates who cast doubt on the validity of an election in which they were also on the ballot should not be seated prior to the completion of a formal inquiry into the validity of their own election and credentials. Put simply, if a candidate claims there is fraud before the election, they cannot expect to simply be seated afterwards. Likewise, if a candidate for the House claims that the Senate race in their state was marred by fraud, the House member’s own election should be subject to review prior to seating.
Second, every election-related lawsuit, filed either pre-election or post-election, should have to explicitly state in the complaint or answer’s caption whether any party to the case is claiming fraud. Claims of fraud should be required to be pled with specificity. When a lawsuit in which fraud is alleged is resolved, judges should be required to make specific findings as to whether there were proven instances of fraud.
Finally, lawyers who use their licenses to undermine democracy should face disbarment. State bar associations must promulgate rules before November 2022 that make clear that undermining democracy, either inside or outside of the courtroom, is unethical and prohibited.
As James Madison said, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Unfortunately, there are no angels among Republican Party leadership. Until we see a recommitment by the Grand Old Party to the ideals of liberal democracy, these controls are more critical than ever.