Yesterday, the Electoral College met and cast their ballots for President, once and for all settling the 2020 election and allowing the country to look forward to the swearing-in of President-Elect Joe Biden and Vice President-Elect Kamala Harris on January 20th. As the President of a nationwide network founded in the wake of the Supreme Court’s now infamous Bush v. Gore decision, I can’t help also note the occasion of its 20th anniversary last Saturday, with relief that our nation has avoided another constitutional crisis.
The peaceful transition of power, gravely imperiled this year by the actions of Donald Trump and those who enabled him, will nonetheless survive his presidency and remain the backbone of American democracy. The courts rejected time and again efforts to drag them into this election with baseless claims of election fraud, the most powerful example being the opinion of a Pennsylvania federal court judge who wrote that “speculative accusations … cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.” Suits still linger, but even the Supreme Court has shown little interest in these cases, as evidenced by their quick dismissal of the filing from the Texas Attorney General, joined by 17 other AGs and President Trump, asking for the results in other states to be thrown out entirely.”
We also avoided another Bush v. Gore thanks to the tireless efforts of a variety of players who refused to be cowed by anti-democratic forces: the lawyers throughout the country who pushed for meaningful access to the ballot box and against attempts to disenfranchise millions of voters; the legislators, Secretaries of State, municipal clerks, and members of Boards of Elections who were critical to ensuring a safe and secure election; and the volunteers who, in the midst of a pandemic, did their part by serving as poll workers and participating in Election Protection efforts. It is no exaggeration to say that this coordinated effort helped save American democracy in 2020.
Of course, this does not mean we should rest comfortably. All around us threats to our democratic system remain. Election officials face threats to themselves and their families. And while the courts for the most part stood firm this year, we know that the Trump Administration has spent the last four years packing the federal bench with hyper-partisan judges. At the Supreme Court, ignoring their predecessors’ admonition in the Bush v. Gore opinion that it should be “limited only to the present circumstances,“ at least four Justices appear open to following the late Chief Justice Rehnquist’s concurrence, which would empower federal courts considering election disputes to overrule state supreme courts in determining their own state legislature’s intent.
The past four years have brought a sustained assault on our norms and rapidly growing and pervasive mistrust of our electoral system. Soon the Trump Administration will end, but the fight for our democracy continues. If we are to truly vanquish the threat of another Bush v. Gore, it will take persistent and coordinated action from all of us.
Russ Feingold is the President of the American Constitution Society. He served as a United States Senator from Wisconsin from 1993 to 2011.