Editor’s Note: Laurence H. Tribe is the Carl M. Loeb University professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy. The views expressed in this commentary are their own. Read more opinion at CNN.
Last week, the all-Republican Otero County commission in rural New Mexico showed us how deeply former President Donald Trump’s disinformation has penetrated our country’s election institutions.
Acting in its capacity as an election canvassing board, the county commission abandoned its legal duty to certify the county election results because, as the commissioners declared, they just “don’t trust” the Dominion voting machines that New Mexico uses to tabulate votes.
The commissioners had evidently fallen hook, line and sinker for the completely debunked 2020 election conspiracy theory spread by Trump and his acolyte, lawyer Sidney Powell, that Dominion Voting Systems’ machines secretly switched votes from Trump to Joe Biden. On Wednesday, the New Mexico Supreme Court ordered the commission to reverse course and certify the June 7 election results.
That’s the good news. Courts – at least those below the US Supreme Court – continue to be reliable institutions affirming truth and the rule of law.
The bad news is that judges are unlikely to be able to sustain the heavy burden required to extinguish the disinformation wildfires that have now spread to the election certification process.
Republican election sabotage, in which GOP officials refuse to certify the winners, has started. It will be up to citizens to block it. We can do that at the ballot box and in other ways.
The first step is to acknowledge our dangerous reality. An analysis by NPR earlier this year found at least 20 Republican candidates in secretary of state races across 17 US states who question the legitimacy of Biden’s 2020 election victory. According to the Washington Post, there are at least 120 candidates for statewide office or running for the US Congress who have echoed Trump’s election lies.
On Tuesday, in Nevada, a battleground state, election denier Jim Marchant won the Republican primary for secretary of state. Marchant says he would not have certified Joe Biden’s 2020 Nevada victory. And he has said he is open to sending to Congress a slate of electors in 2024 who would not vote for Nevada’s popular vote winner.
Need further cause for alarm at the prospect of partisan, power-hungry advocates taking away our right to choose our leaders? Consider this: Among the political players who are in a position to put a heavy thumb on the electoral scale are the US Supreme Court’s reactionary majority.
The court is considering whether to hear a North Carolina case that presents an opportunity to adopt what conservative theoreticians call the “Independent State Legislature Theory” (ISL). Four justices on the right have already signaled their support for hearing an ISL case.
The anti-democracy premise of ISL is that state legislatures can do whatever they want in federal elections, including ignoring the winner of the state’s popular vote.
The ISL theory is pockmarked with legal holes, as law professors Vikram David Amar and Akhil Amar have ably demonstrated in multiple articles. But if you think that will stop the court majority from favoring legislatures’ ability to destroy majority rule, think again.
Over the last decade, the conservative majority has given Republican-controlled legislatures carte blanche to adopt measures suppressing the voting rights of Blacks and other large blocs of voters. The majority has also approved partisan legislative gerrymandering that effectively chokes “one-person, one-vote” to death.
Americans can and must stand up to election sabotage to ensure that public officials certify the candidates with the most votes. Here are five things to do.
First and most obviously, voters must cast their ballots against “election denier” candidates in November. It’s no coincidence that “election deniers” are all in the same party.
Second, citizens should support lawsuits and take other formal action against those who make false election claims. That’s what New Mexico Secretary of State Maggie Toulouse Oliver did on Tuesday to get the Otero county commission to do its job. She filed an emergency request with the state’s Supreme Court, which ordered them to certify the primary results.
It’s also what Dominion and rival balloting machine company Smartmatic have done against Trump election adviser Sidney Powell and others, including right-wing networks like Fox News, One American News Network (OANN) and Newsmax.
Newsmax quickly backed off of the phony Dominion conspiracy, but a federal judge last week ruled that the company’s defamation suit against Newsmax can go forward – one of several legal actions proceeding against companies and individuals that they alleged have spread false information that they engaged in election fraud.
Ironically, Powell sought to have Dominion’s defamation suit against her dismissed by asserting that “no reasonable person” would believe her claims. On that premise, the Otero county commissioners are not “reasonable persons.” More concerning for Powell and her associates is that they are now defendants themselves in a defamation complaint by Dominion, an action that Powell could not get dismissed.
Third, Americans can speak up via social media and letters to the editor, urging the business community to use its voice and money to support candidates devoted to preserving our vote. A stable democracy is vital to business success.
Some 85 corporations, including Nike, PepsiCo, Lyft, Target and Zillow kept their promise after January 6 to withhold financial contributions to elected officials who objected to certifying Biden’s election, according to the political finance watchdog group CREW – Citizens for Responsibility and Ethics in Washington. Consumers should patronize and reward those companies, and withhold their business from companies that have broken that pledge.
Fourth, we need a national campaign to support nonpartisan officials of integrity who count votes and certify winners. Many capable and honest election administrators are resigning, given the increasing pressures and threats that sadly now go with the job. These officials need pay raises and security, along with augmented budgets to address the new challenges of running impartial elections.
Finally, citizens need to write, call or text their senators to encourage the finalization of the new bipartisan agreement to amend the Electoral Count Act.
The measure would clarify the vice president’s limited, ceremonial role in counting states’ electoral votes and would make it harder for renegade congressional representatives to reject legitimate electors in favor of the kind of bogus slates that Trump’s campaign advanced in December 2020. If amended, the law would require blocs of members to initiate an objection, rather than allowing a single lawmaker to stall the certification process.
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Hearing by hearing, the House Select Committee investigating January 6 is telling us, via documents and sworn testimony, two basic truths: First, that the multifaceted effort that Trump initiated to overturn the will of the people began months before January 6. Second, follow-up efforts to institutionalize that scheme are now underway.
We just saw in New Mexico how broadly the disinformation fueling the conspiracy has spread. Only We The People can stop it.