No Legitimate President

By W. David Montgomery

There is no chance at this point that the 2020 presidential election will restore consensus on the legitimacy of the Presidency.   We have noted in these columns several times over the last year that a successful democratic republic depends in no small measure on the consent of the losers.  No matter the outcome of the upcoming election, some of the losing side’s supporters will not consent to the victors. A large number of voters will be convinced that one or the other of the candidates has won by illegitimate means: whether by voter suppression; ballot stuffing; buying votes; or by advancing a multitude of untruths and outright fabrications about the other side.  A number of commentators declare that the victory of one of the candidates will be the “end of democracy” in the United States.  An article in the Wall Street Journal suggests that should Mr. Trump prevail, the State of Oregon will actually choose to secede. This would perhaps be a good thing, as it would remove two democratic senators and, as its own country, Oregon could maintain its chosen status as a police-free sanctuary for criminals of all stripes, illegal immigrants as well as others. It would be an excellent natural experiment to test the progressive idea of nirvana.

Those who have rejected Trump’s victory since election night 2016 will be exponentially more outraged if he snatches victory from defeat again, with a plethora of new complaints about October surprises along with an even greater conviction that the office should be theirs.   They believe again that Trump has conspired with Russians, this time to manufacture the Hunter Biden laptop bruhaha, and will believe that he could not have won otherwise.  They are already claiming electoral interference and intimidation.  Should election disputes reach the Supreme Court, and should Justice Amy Coney Barrett cast a decisive vote that rules in favor of Trump, we will see further rioting and chaos.   Anticipating a Biden victory, formerly rational pundits are redefining the meaning of “packing the court” to include the Trump administration’s filling of vacancies that have occurred naturally in his term of office.  This redefinition seems plainly to envision actually expanding the court should Biden win, simply a tit-for-tat move they will say.

If, as may happen, Biden-Harris gain a plurality of the popular vote but lose the electoral college, a war-game exercise conducted by leading Democrats described how they might attempt to negate the electoral college. One such scenario involves Biden alleging “voter suppression” by Republicans and persuading governors of states won by Trump – for example, Wisconsin and Michigan — to send pro-Biden electors to the Electoral College. According to the Washington Post, in this scenario “They even floated the idea of encouraging secessionist movements in California and the Pacific Northwest unless GOP congressional leaders agreed to a series of reforms, including the division of California into five smaller states to ensure better Senate representation of its vast population, and statehood for D.C. and Puerto Rico.”

On the other side, a number of voters are convinced that Biden is a senile cardboard cutout held up as a screen for the most radical Vice-Presidential candidate ever.  The suspicion here is that not long after his administration begins, he will be in some fashion declared incapacitated, thus allowing Kamala Harris to assume the presidency.  Then there is the suspicion, based on events involving Ukraine and China, that Biden has headed a corrupt family business and is in the pocket of the Chinese.  The fact that the mainstream media (including social media) have been aggressively suppressing news of the Hunter Biden laptop/China imbroglio will enrage and infuriate many conservatives, many of whom will believe that any Biden victory is been the result of a massive media/blue state conspiracy to harvest ballots and otherwise engineer voter fraud in  swing states. Their fury will be amplified by their belief that Democrats’ perceived tolerance for violence, looting and indoctrination in Critical Theory are an existential threat to the nation. 

Then there is the Vice-Presidential candidate, who is probably more divisive than Biden himself.   Some find her selection as Biden’s running mate inherently improper because of her sexual relationship with the married political boss of California, a relationship that is claimed to have purchased her start in California politics.  Her record as the furthest-left Senator who on her own could get only 5% of the vote of her party voters stokes more fears that she is a Trojan horse for progressives in general. To most conservatives, even conservative Democrats, the takeover of the Biden White House by Harris will challenge the electorate in ways that we have not seen in more than a century. They will have a choice of calling it a planned fraud on the American people put across by the Biden campaign, or simply a left-wing coup. [There is, of things, the choice of simply accepting the outcome of a constitutional process, however discomforting it might be]

And this does not even get into the hardened positions on policy and personality that inform the deeply polarized electorate.  A hard core of Democrats and many former leading Republicans never accepted Trump’s election as legitimate.  Before the revelations about Hunter Biden’s influence peddling, it was possible for commentators to believe that “Biden is a return to deeply cherished American values of decency and goodwill” without widespread derision.  More importantly, the inbred willingness of conservatives to accept election outcomes could be expected to allow return to at least the level of bipartisanship and civility of the Obama Administration.  Now, however, it is likely that voters on either losing side will refuse to accept the winner as a legitimate President.

It is not possible to predict what overt actions will follow, in part because different voting outcomes and post-election scenarios could produce very disparate effects.  An election that is unresolved into January opens so many possibilities for disaster that it deserves separate analysis – which will be forthcoming in The Chesapeake Observer if that is how things go after November 3.  But should the election be thrown into the House, and putting to one side various opportunities for judicial mischief, each state gets but a single vote, which would favor Mr. Trump.

Even if the election result is clear, it is hard to envision a good outcome for the country as a whole. Maybe the best that can be hoped for is some form of divided government.  No matter the victor in such a situation, the President would have little power, especially if the party controlling the White House does not control the Senate.  In these circumstances, the policy outcome would likely be inaction on all serious problems, domestic or foreign – much like the past several years in short.  

At worst, there could be widespread rioting, possibly violent conflict between opposing ideological sides, maybe even some pockets of armed resistance to the Federal government.  Cities could burn even more than last summer, the progressives seeming to be far more inclined to violence that the conservatives.   Such outcomes could be triggered by the election of either candidate, since each side considers the other candidates to be not just illegitimate, but his supporters hateful.  Should Mr. Trump win, the availability cascade discussed in the past two articles could grow into widespread acceptance of extreme views on gender, race and radical redistribution of wealth. If Biden-Harris win, a cascade could create a dissident group of sufficient size to try to control their geographic regions or engage in open warfare with leftwing militias. All of this sounds extreme and alarming. And maybe it is wrong and overwrought. Maybe the losing side will consent to governance by the winning side.  But that seems unlikely. What form the lack of consent will take is fair ground for speculation.  

The political map of the United States does not divide easily between polarized political convictions.  Colorado and New Mexico vote for Democrats and break up the solid block of Republican states in the Middle and South of the country.  The upper Midwest Democrat states are linked to the Northeast only by the Great Lakes.  Moreover, few states are homogeneously the one color depicted in electoral maps.  In Maryland, 14 counties form one political pole and 7 more populous counties plus one city form the other.  Northern and southern Illinois are as different as Massachusetts and Missouri. Michigan, Pennsylvania – indeed, all the battleground states – are deeply divided between their biggest cities and the rest.  This suggests that a breakup would cause sibling on sibling warfare mirroring Maryland’s Civil War experience on a massive scale.

Reactions to a Trump Victory

The immediate response to a Trump victory is likely to be protests, riots and violence in the streets of major cities, possibly extending to suburbs or small towns if BLM and Antifa choose to mobilize in that direction.  An inaugural parade would likely be impossible without armored vehicles lining the sides of Pennsylvania Avenue.  Washington and Oregon are already calling Federal law enforcement agencies an “occupying army” and “stormtroopers,” which could escalate to resistance or secession if Trump should use U.S. troops to restore peace.  (This would not be unprecedented and perfectly legal; President Eisenhower was praised for sending paratroopers from the 101st Airborne to Little Rock to protect students enrolling in newly desegregated schools.)  Now, however, such action might produce actual urban warfare between U.S. troops and armed radical groups in places like Portland.

Historically, it has been the left that takes to the streets to overturn a government through protests and civil unrest; conservatism by its definition has a predilection to retain the good things of the past while working for realistic improvements.  It does not try to tear down.  Say what you will about Fascist coups in Europe and South America, no sane conservative in the United States would advocate overthrow of our democratic system in favor of some form of apartheid or right-wing authoritarianism.  Even among the group that views a Biden/Harris administration as illegitimate, vanishingly few would support anything like that.  Thus, I see far greater prospects for defiance of federal authority, bloodshed, and forms of secession if Trump wins than if Biden wins.  But the consequences could be dire in either case.

Reactions to a Biden-Harris Victory with a Divided Congress

Those who, like Ross Douthat, have wished for a clear Trump loss combined with a Republican majority in the Senate are probably correct that this would be the least divisive scenario.  It would satisfy the Republican Never-Trumpers that he is out of office and possibly tone down their doomsday predictions about the consequences of a second Trump term.  Democrats could not complain about losing their rightful spot in the White House, and President Biden or President Harris would be unable to carry through on their most divisive proposals like the Green New Deal, DC and Puerto Rico statehood and packing of the Supreme Court.  Biden could well be dogged by a special prosecutor or maintained in office purely due to fear of what his Vice President would do, perpetuating an aura of illegitimacy.

Other policy proposals like major tax increases would likely be blocked, but increased deficit spending is generally acceptable to both parties when there is no threat of Presidential veto.  There is a chance, giving Douthat the benefit of the doubt, that the country would remain no more divided than it is now.  But if Biden or Harris start to press the agenda of the far left of their party through use of Presidential authority that a divided Congress could not check, the outcome might be little different from that with a full Democrat sweep. 

Reactions to a Democrat Sweep 

Should Democrats take advantage of a sweep of Congress and the Presidency to enact some of their more extreme policies, the perceived illegitimacy of a Biden-Harris presidency would likely extend to an over-reaching Democrat leadership in Congress.  What reactions that will produce depends largely on how far the Democrats go to satisfy the Progressive wing.  Their promises to raise taxes, equalize outcomes, and create a Green New Deal and their likely reconciliation with China and Iran are unlikely to provoke more than a war of words from the conservative side. 

The reaction could be much stronger if Democrats carry through on threats to pack the Supreme Court; add two Democratic states (and four Democratic Senators); and get rid of the filibuster for all legislation.  These actions would truly cement the perceived illegitimacy of Democrat rule in the minds of all those voters who still recognize (and would resist) the soft totalitarianism of the left.

The most serious reaction would come if, after removing these impediments to one-party rule, President Biden or President Harris launch an aggressive attack on the First and Second Amendments.  If they follow Canada and European countries with confiscation of firearms, suppression of “offensive” free speech, lockdowns for COVID or other reasons, criminalization of pro-life activities and jail sentences for criticism of LGBTQ lifestyles, outright resistance on some scale would be inevitable. 

With a Supreme Court recently packed with justices ready to emasculate the First and Second  Amendments, such actions by a Biden-Harris presidency could lead to immediate defiance and arrests rather than resort to the courts.  Already religious leaders and clergy are defying lockdown orders by governors and mayors that discriminate against religious establishments, and that resistance would multiply with enforcement of progressive social rules.   There are enough solidly conservative cities and states to expect declarations of sanctuary or outright efforts at nullification by states, mirroring reactions to Trump’s policies on immigration.  The perceived illegitimacy of the Biden-Harris administration will have prepared the way for strong reactions.

A Far-fetched Dream

If Biden fulfills the dreams of Never-Trumpers, turns into Bill Clinton, tames Pelosi and Schumer, and somehow hangs on for four years to keep Harris out of the Oval Office, these outcomes might be avoided.  Likewise, if Trump learns to keep quiet, stops tweeting and negotiates compromises his acceptance will increase except among the hard-core of progressives and Never-Trump Republicans.  But absent these unexpected conversions, the likely doubts of their legitimacy will prevent Trump from ever being accepted by the left and an ethically compromised Biden or far-left successor Harris from ever being accepted by the right. The only question is how widespread and deep the reaction to the perception of illegitimacy will be.  The wild card is the succession of Harris to the Presidency.  The chances this election will turn out well for the country are small.