UNDAUNTED: Take The Wins

🚨46 Days to the Midterms🚨

Sometimes, it is hard for pro-democracy forces to take “yes” for an answer. Wary of “crediting” the egregiously partisan U.S. Supreme Court majority with any principled ruling, and conditioned to expect another assault on democracy, many Democrats greeted even a win as convincing and critical as a decision on the merits in the U.S. Post Office case with shrugs and eye-rolling. Worse, many remain suspicious about mail-in voting (which is entirely safe, secure, and vital to maximizing turnout).

The Supreme Court decision blocking Donald Trump’s war on mail-in voting is an undiluted win for democracy. Trump knew how big it was, and lashed out at the justices he had appointed in response, thereby confirming the enormity of his defeat.

It’s important to emphasize the magnitude of the victory defending mail-in voting, not only to reassure Americans that voting by mail is safe and secure, but to sustain voters’ sense of agency, a critical part in any battle against an authoritarian regime.

Political science research confirms, unsurprisingly, that people want to be on the winning side in political contests, writes voting advocate and litigator Tyler J. Hagenbuch. He explains:

Political scientists Erica Chenoweth and Maria Stephan spent years studying why some movements against authoritarians succeed while others fail. … People are very good at deciding whether a fight is worth their effort, and their decision usually comes down to whether the fight seems like it’s working. This is exactly why political campaigns are always talking about who has “momentum.” More people join the side that seems to be winning.

In the context of Trump’s total failure to hobble the Post Office, which would have disenfranchised potentially millions of voters, it is critical to remind voters that the authoritarians do not have some magical powers or secret sauce for staying in power. “[E]very time an attack on our elections fails so completely and so publicly, the country learns that none of this is inevitable and that we aren’t powerless. Americans have agency in this moment, and that terrifies Trump,” Hagenbuch observes.

Voting law guru Rick Hasen agrees about the importance of the convincing legal win. “[T]he court’s conservatives and liberals came to the brink, saw that ruling the other way risked serious election subversion, and said ‘No,’” Hasen wrote. “The Supreme Court has been terrible on voting rights, but so far, it has held the line on actual election rigging. Let’s celebrate that, even as we gird for more battles to come.”

This does not mean that Democrats need to declare the crisis of confidence in the Supreme Court created by its MAGA partisan majority is over. A broken clock is right twice a day, so an occasional decision striking down such an obvious constitutional power grab hardly cures the crisis at the court or alleviates the urgency for systemic, dramatic reform. And let’s readily concede that Justice Sam Alito’s dissent, joined by Justice Clarence Thomas, is among the most factually inaccurate and intellectually dishonest of his career, which is saying something. But refusing to recognize the significance of Trump’s humiliating defeat is counterproductive and unwise for multiple reasons.

Whether it is the USPS case, his slap-down in the companion Post Office case in the District of Columbia, or the critical rebuff of MAGA Republicans’ appeal from their devastating loss in the Missouri redistricting case, Trump has been losing repeatedly of late and finding himself on the receiving end of judges’ unsparing, harsh rebukes.

It is vital to recognize the stalwart work not only of litigators — including our own Norm Eisen — but of lower court judges (whose stellar opinions set the predicate for the win at SCOTUS on the Post Office case). Operating under a constant barrage of physical and personal attacks in retaliation for standing up to Trump, they deserve support and praise. Their continued service is essential if our democracy is to survive the rest of the Trump years. And when the Supreme Court upholds their work, they and their peers on the bench must understand that their work is not futile.

Moreover, victories in key election cases at this point in the midterm cycle are critical to maintaining voters’ faith in the electoral process and keeping the edge in enthusiasm/turnout. It is not false bravado or misguided Pollyanna-ism to recognize when things go in favor of democracy forces. There is no virtue in telling people wins don’t matter because something else bad will come along (or that Trump won’t follow the law or that he will invent a new maneuver to cheat).

Defeatism is the death knell of a popular democracy movement, playing into the hands of despots who spend endless energy and time trying to convince the opposition that resistance is hopeless. What is crucial for pro-democracy forces at this stage is to realize that many of the guardrails are holding. Though re-redistricting and other voter suppression techniques make it harder for pro-democracy forces to prevail, robust participation in the midterms brings us closer to the end of Trump’s span of uncontested trifecta power.

Recognizing legitimate victories and spreading a sense that our elections will be secure and meaningful help spur citizen volunteers to participate in voting protection efforts (as state parties and unions are now doing); encourage early voting (which helps build momentum toward Election Day), and drive participation at live, in-person campaign events. Keeping voters engaged and turning out the vote may now be the most essential component in preservation of our democracy.

Right now, Democrats not only lead in generic polling and a wide array of House and Senate races critical to taking both houses; they are outpacing Republicans considerably in enthusiasm. They have far surpassed Republicans in turnout in the primaries, a strong indication of relative turnout in the general election. By nearly every measure, Republican voters are down in the dumps, not even bothering to watch Trump’s cringeworthy fascist rally in Dallas. In polling, Republicans are increasingly willing to register disapproval of him, his policies, and of the economy’s performance. (A sizeable share don’t even buy into his $5000 check scam!)

Especially for Trump and his cult, who rely on Trump puffery as a “winner” and denigration of opponents as “losers,” frequent embarrassment in court (and in failed wars and in our economy) can be demoralizing, which in turn spreads in MAGA ranks. Running down Texas attorney general Ken Paxton, the Republicans’ Senate nominee, signals to voters he is damaged goods. Michigan Senate nominee Mike Rogers ducking a debate (leaving his opponent to debate and mock an empty podium) hardly inspires Republicans to trek to the polls. Republicans now are the ones at risk of self-fulfilling defeatism.

In sum, we salute the undaunted, unwavering, and unbowed litigators and judges who are holding the line for democracy, and providing reassurance that if the people do their part and turn out to vote, the darkest era in modern American political history will end. It now is up to you, the voters who value democracy, to do the work necessary to defeat the MAGA regime.

I will be off on Monday for Yom Kippur. I wish all who are observing a meaningful holiday and an easy fast.