Donald Trump’s campaign for the presidency was a waste-pit wallow through a sludge of fear and hate. That millions of Americans voted for him presumably without hating anyone says a great deal about the extent of the economic desperation he vows to address. As to how he’ll address it, without starting trade wars that likely would just compound the damage…well, we’re waiting.
But besides lashing out at immigrants and seemingly everybody else whom he strained to scapegoat for the country’s ills, Trump injected a current of cynicism into the election that could have been profoundly corrosive.
He plainly didn’t expect to beat Hillary Clinton. So what the country heard for week after week was the candidate protesting that the outcome was “rigged” – in other words, that his defeat couldn’t and shouldn’t be accepted as legitimate.
Americans are proud of their traditions of the peaceful transfer of power. Even when campaigns have been brutal and no love has been lost between an outgoing president and his successor, the Jan. 20 inauguration rituals take place by the book, without violence, and in celebration that our democratic system has been sustained.
Trump, however, was encouraging his partisans to be bitter-enders, unwilling to accept that they’d been outvoted in a fair and honest process. There’s no point in suggesting that the seething anger he sowed could have erupted into anything close to revolution. But it was dangerous enough for him to signal that his supporters should not be reconciled to defeat, should not honor the decision made by the majority of their fellow citizens.
Then, by some reckonings out of nowhere but probably as something we should have seen coming, Trump won.
Suddenly, the talk of a rigged election disappeared. Imagine that.
The irony is that some components of Trump’s party, while there’s no sign of election fraud, seem willing to rig the political system itself to achieve goals they couldn’t achieve via the ballot box. North Carolina offers a case in point.
The last ditch – and beyond
With Trump at the top of the ticket and carrying the state, North Carolina Republican candidates in the Nov. 8 elections generally did well. The most significant exception involved Gov. Pat McCrory, who will lose his bid for a second term unless the final, official tally gives him a surprising boost. Preliminary results — challenged by McCrory in several counties, most notably Durham — showed him trailing his Democratic rival, Attorney General Roy Cooper, by some 4,800 votes out of 4.7 million.
The governor has every right to insist that any suspected irregularities in the election be reviewed and that the vote count be verified as accurate. If the final margin ends up being less than 10,000 votes, by law he’ll be entitled to ask for a statewide recount.
Still, it’s not hard to see how legitimate scrutiny of the results could cross the line into obstructionism intended to deprive Cooper of a win no matter what.
The governor’s Durham protest went before the county Board of Elections on Nov. 18. After an attorney for McCrory was allowed to try to show that the county’s vote totals had been incorrectly reported because of a computer error — and with various witnesses testifying under oath that nothing improper had occurred — the three-member, Republican-controlled panel voted unanimously to dismiss the protest. The next stop for McCrory’s campaign would be the state elections board.
If the governor’s lawyers continue to complain even without clear evidence of a problem, the suspicion will grow that they’re trying to set the stage for an election review that could wind up being settled by the General Assembly, which remains firmly in Republican hands.
That would be in accord with an obscure law enacted a decade ago to resolve contested elections for the 10 Council of State posts, which include the governorship, and invoked only once – to settle a disputed race for superintendent of public instruction. (A Democratic-controlled legislature found in favor of the Democratic candidate.)
There’s nothing inherently wrong in such disputes with giving legislators the final call, which is supposed to reflect their finding as to which candidate did in fact receive the highest number of valid votes.
But what if a candidate essentially had ginned up the controversy out of nothing, when an impartial examination of the results showed no significant problems with the initial count? Or even if there were problems, that none was large enough to cast real doubt on the initial outcome?
A legislature with strong Republican majorities might be tempted to side with McCrory’s arguments, but lacking solid evidence of miscounting or misdeeds, the process would have been abused. No matter how deep the frustration, any candidate must be statesmanlike in accepting defeat when to keep fighting on flimsy grounds risks a result that indeed would appear to have been rigged, eroding public confidence in the election system as a whole.
Is nine the number?
For Tar Heel Republicans, another big election disappointment came in the race for a seat on the state Supreme Court. Veteran Justice Bob Edmunds was denied re-election by Superior Court Judge Mike Morgan. The posts are nominally non-partisan, but the court’s ideological divide – correlated with party affiliation — has been clear. With Morgan on board, the balance will shift 4-3 in the Democrats’ favor.
That is, unless legislators follow through with an idea being talked up in some conservative circles. The state constitution specifies that the court shall have seven members while allowing the legislature to add two additional seats. The idea – wait for it – is that the court could be expanded and McCrory could then name two members who would put Republicans back in the majority.
Again, there’s nothing inherently wrong with the legislature having some leeway to enlarge the court. Increasing the court’s capacity to handle cases, should that become advisable, would be one reason for expansion. Enhancing the diversity of its membership would be another.
But “packing” the court to ensure that the conservative, or make that the Republican, view would prevail in ideologically divided rulings would be an intensely cynical move to further the Republican agenda. The legislature would be manipulating the judiciary to override the voters’ choice of Morgan over Edmunds, and hence of a progressive majority over a conservative one.
Even casual students of American history know that President Franklin D. Roosevelt’s plan to pack the U.S. Supreme Court came unglued in the face of conservative resistance. The North Carolina situation is kind of a mirror image in terms of the ideological stakes, but the arguments against tampering with courts’ membership for political purposes are much the same.
Even if the new packing scheme advances, McCrory would have to follow up with suitable appointments. Here’s a thought: Especially if in the next weeks it becomes clear that his time as governor is about to end, why would he necessarily want to cooperate with a move so contemptuous of judicial independence and also of the clear outcome of the Morgan-Edmunds race? Anyway, what did his purported Republican allies in the legislature do for him – other than hang the House Bill 2 millstone around his neck for him to drag through the campaign?
If McCrory has to leave the governorship, he could help shine a positive light on the wind-up of his term by saying to any court-packers, “Sorry, but it’s not going to happen.” And surely, GOP legislators wouldn’t want to let Cooper finish the packing job!
Tied in knots
The court’s ideological make-up has become even more sensitive while the legislature, in the throes of conservative dogma, has enacted several measures eliciting constitutional challenges. Scenarios that could yet unfold are complicated, but it’s a sure bet that the justices will not be on the sidelines as key issues continue to play out. Their rulings as to which laws pass constitutional muster and which don’t will continue to have major impact.
In that light, a new process adopted by the court to avoid tie votes warrants skepticism as to how the process would work in practice, whether the court was entitled to embrace such a rule and whether its motives were unduly tied to partisan goals.
Tie votes are not ideal in the sense that the state’s highest court fails to resolve matters before it – leaving a lower court ruling in place, but without a binding precedent. Of course, some interested parties may like the lower court ruling just fine, while others would like to see the Supreme Court countermand it.
Ties typically occur when a justice has to recuse himself or herself, often because of a conflict of interest, and when the remaining six justices are divided across the ideological fence. A new rule – adopted as it happens on Election Day – allows a “substitute justice” to participate in a decision when a tie is seen as possible. The substitute would be chosen from among a “neutral rotation” of retired justices – presumably neutral as to party affiliation.
Without getting too far into the details of how this process could or would work, let it suffice to say that opportunities for politically tinged gamesmanship seem abundant. With the court’s credibility already on somewhat thin ice because of partisan alignments, there’s simply no good reason to continue fiddling around with the court’s makeup. UNC law professor John V. Orth – probably the leading expert on the state constitution – throws a harsh light on the rule’s uncertainties and defects in this Nov. 17 op-ed article.
It’s said that politics is a contact sport, and participants go to considerable lengths to gain and/or hold power and to advance their goals. Sometimes they go too far. Donald Trump’s execrable campaign, with all its insults, scapegoating and flaunted ignorance, was this election season’s Exhibit A.
North Carolina’s Republican legislators already had skewed the likely election outcome in their own favor with gerrymandering so extreme it’s been panned by federal judges. Threatened with their party’s loss of the governor’s office and facing a Supreme Court controlled by Democrats, what might they do next?
If they’re the ones who do rig the system, they’ll be the ones undermining trust in elections as the means by which the public charts the course of its government – hopefully, a course toward equal opportunity, justice and compassion for those who can’t seem to catch a break.