Americans, and indeed people around the world, have tried to make sense of the US election, in particular its incomprehensible system of tallying Electoral College votes, as well as a plethora of legal challenges to elections across the country. A quick scan of the latest news items from around the world reveal claims of a range of nebulous ‘crises’ in the US: a political crisis, a crisis of democracy, a constitutional and potentially post-election crisis, a crisis of bourgeois democracy, and even a crisis of the American Dream.
But do any of these depictions of ‘crisis’ really help us understand what has been happening? And why is it that the courts rather than the voter (or Electoral College for that matter) seem to end up deciding an election, as Trump hoped would happen for this presidential election when he complained about electoral fraud?
Simplistic descriptions of ‘crises’ without a deeper examination of the root causes won’t help us understand what is transpiring. As my ISS colleague Karim Knio has consistently argued, we should not waste a good crisis. Accordingly, he insists that one must resist the simplistic tendency to speak of a crisis IN or a crisis OF something, but rather should seek to understand the potential of such events to trigger political change.
To be sure, this is not to dismiss the importance of potentially calamitous events – whether they are political, economic, ecological, sociological or indeed medical (the COVID-19 pandemic comes to mind). However, the crucial thing is to learn from how such events have been (mis)managed to get to the underlying causes. In other words, explaining the pedagogy of crisis management is much more important than the crisis itself.
Amidst a cacophony of voices, each seeking to provide their own explanation of the ‘crisis’ in the US, and even how to solve it, very few speak of the underlying reasons why the US is in such a mess. This is a far more fundamental matter, including the insidious ways in which law is instrumentalised to suppress basic democratic and legal values, and indeed to suppress people as well. I argue that the illegitimate misuse of the legal system in the US through the use of lawfare is underpinning many of these ‘crises’.
It was evident from the very beginning of the Trump administration that it would use lawfare to accomplish its goals. Lawfare is about instrumentalising law to suppress people and to undermine rule of law values. This use of law assumes “delegitimising and oppressive forms, justifying retrogressive policies and even reinforcing the hegemonic actions of states”.
Throughout the four years of the Trump administration, there has been an expansive mis-use of the law through lawfare to accomplish what would otherwise have been impossible through legitimate legal procedures. All branches of government have been affected by it. In the legislature, following an impeachment by the Democrat-controlled House of Representatives, Trump’s strong alliance with key members of the Republican-held Senate ensured that, through lawfare, he would be duly acquitted in a sham trial that failed to call any witnesses. Trump also waged lawfare in the judiciary: he appointed two Justices with right-wing political views – Brett Kavanaugh and Amy Comey Barrett – to the US Supreme Court, the latter one week before the presidential election. But most of all, Trump made extensive use of lawfare by way of executive orders, from the so-called ‘Muslim ban’ to the separation of migrant children from their families after being detained at the US border.
Trump was hardly the first president to make use of Executive Orders—Bush and Obama made extensive use of them as well. Indeed, Trump capitalised on this expansion of executive power. Notwithstanding their shaky legality (they were frequently overturned after being challenged in court), it seems that this form of lawfare has mainly been intended as a source of distraction, for example from the administration’s ‘dangerously incompetent’ handling of the COVID-19 pandemic or the Republican party’s systematic unravelling of the US social safety net.
However, Trump arguably took lawfare to a whole new level in the context of the 2020 Election. In the run-up to the election and even as Biden was proclaimed victorious, lawfare has been Trump’s principal strategy, his endgame for attempting to win re-election in 2020 by way of voter suppression, which another commentator refers to as a ‘crisis’ in itself.
Voter suppression through lawfare has a long history that is rooted in the country’s racist past. This has involved the systematic use of lawfare at municipal and state levels, and has taken various specific forms. A common form has been to require voters to produce specific IDs, based on a spurious claim (i.e. little to no evidence) that voter fraud was rampant. A second form of lawfare has been to exclude those with a previous felony conviction (i.e. record of having committed a serious crime). A further form of lawfare has been to re-design voter districts so that Republicans have a greater chance of winning elections according to a particular set of demographics. Much of these lawfare aimed at voter suppression were pushed by a private organisation known as the American Legislative Exchange Council (ALEC).
In the weeks prior to election day on 3 November, Trump and his associates issued frequent warnings of the potential for voter fraud, citing mail-in ballots as a major cause. As often accompanies lawfare, there was little to no evidence for making such claims.
By 8 November, it became increasingly clear that Biden would win the US Presidential election by more than 4 million votes. By then he had already collected well more than the 270 electoral votes needed to win and was on track to secure more than 300 in total. Accordingly, every single major US news network—including the Trump-friendly FOX news— projected by 8 November that Biden would win the election.
The response of Trump and his associates was not to concede, but to step up their lawfare game by launching multiple lawsuits in different states, albeit lacking the support of large law firms that are required to mount such complex litigation. As with many other previous lawfare actions, this action was also led by former New York mayor Rudy Giuliani, again alleging ‘fraud’, though still based on little to no evidence. Nevertheless, these false allegations have been bolstered by Trump’s allies in the Senate—in particular Lindsey Graham and Ted Cruz—all aimed at questioning the legitimacy of the 2020 presidential election, or potentially at maintaining the Republican voter base.
This all reveals the importance of learning how lawfare has been used to undermine fundamental pillars of governance. Despite the claims of pundits that the US is facing innumerable, unspecified crises, the biggest crisis facing the US is much deeper and fundamental. It is a crisis in how lawfare is systematically used to undermine the very fundaments of liberal democracy and, most recently (and visibly), the integrity of the electoral system.
Learning from how Trump and his associates have misused the law through their disingenuous campaign of lawfare is also key to understanding why challenging the election is not as important as Trump’s lawyers make it out to be. Lawfare is used to exclude legitimate voters and to foster a deep and growing polarisation that will make it all the more possible for right-wing Republican candidates—even those with no qualifications or experience other than starring in a reality TV programme or running loss-making businesses—to seek presidential office in future.
In other words, Trump’s endgame of lawfare is a crude strategy for undermining basic principles of governance in order to secure re-election. While this strategy of polarisation is proving unlikely to work for this election, it may well secure a Republican victory in future.