DONALD JOHN TRUMP stands credibly accused of insurrectionism and should be barred from 2024 ballots on account of his unconstitutional insurrectionist activities. See Fourteenth Amendment, Sec. 3.
Veteran civil and constitutional rights attorney John Vail has filed a once-in-a-life-time truly inspired and awe-inspiring "Brandeis brief." This 2024 "Brandeis brief" is truly worth of the name, and in the inspired spirit, voice and Weltanschauung of our late learned Supreme Court Justice Louis Dembitz Brandeis. Thanks to learned counsel John Vail and his well-informed historian clients, Dr. Ben-Ghiat, Dr. Berman, Dr. Diamond, Dr. Kleinfeld, Dr. Levitsky, and Dr. Snyder:
Dr. Ruth Ben-Ghiat, Professor of History and Italian Studies at New York University;
Dr. Sheri Berman, Professor of Political Science, Barnard College, Columbia University;
Dr. Larry Diamond, William L. Clayton Senior Fellow, Hoover Institution; Mosbacher Senior Fellow in Global Democracy, Freeman Spogli Institute for International Studies, Stanford University;
Dr. Rachel Kleinfeld, senior fellow, Carnegie Endowment for International Peace;
Dr. Steven Levitsky, Professor of Government and Director of the David Rockefeller Center for Latin American Studies at Harvard, Harvard University; and
Dr. Timothy Snyder, Richard C. Levin Professor of History and Public Affairs, Faculty Advisory of Fortunoff Archive for Video Holocaust Testimonies, Yale University.
Amici’s titles and affiliations are listed for identi- fication only; amici submit this brief in their personal capacities.
No. 23-719
In the
Supreme Court of the United States
DONALD J. TRUMP,
v.
NORMA ANDERSON, ET AL.,
Respondents.
On Writ of Certiorari
to the Supreme Court of Colorado
BRIEF OF EXPERTS IN DEMOCRACY AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
JOHN VAIL
Counsel of Record
John Vail Law PLLC 1025 Thomas Jefferson
St., NW
Suite 810
Washington DC 20007 (202) 589-1300 john@johnvaillaw.com
Counsel for Amici Curiae
Petitioner,
ii
TABLE OF CONTENTS
INTEREST OF THE AMICI CURIAE .................1 INTRODUCTION AND SUMMARY OF
ARGUMENT .........................................................2 ARGUMENT .........................................................4
I. International experiences of democratic corrosion through violence are instructive. .........6
A. The refusal to cede power is particularly dangerous to democracies. ............................. 6
B. Some leaders use state violence to
remain in power.............................................. 8
C. Other leaders turn to mob violence to retain power.................................................... 9
II. Trump’s actions in the wake of the November 2020 election are alarmingly similar to activities that have destroyed democracies in other countries. .............................................................13
III.Trump continues to undermine the rule of
law and threaten our governing institutions.....21
IV.
B.
.......................... 28 V. Courts must be guardians of democracy. .....31
U.S. democracy is being corroded by the
normalization of political violence.
A. Our electoral administration is buckling under threats. ............................................... 26
Rising threats of violence are affecting
.....................25
defenders of democratic institutions
regardless of political affiliation and may
reduce the willingness of some Americans
to engage in public service.
A.
iii
......................................... 31
Courts internationally have played an
essential role in restoring the guardrails of
their democracies.
B. Our Founders recognized the gravity of the threat to the Republic, and
contemporary custodians of our Republic should as well. .............................................. 34
iv
TABLE OF AUTHORITIES Other Authorities
Aamer Madhani & Kevin Freking, Trump Won’t Commit to Peaceful Transfer of Power if He Loses, Associated Press (Sept. 23, 2020), http://tinyurl.com/ybavz2uc...................................13
Aaron Blake, Who Could Have Predicted the Capitol Riot? Plenty of People – Including Trump Allies, Wash. Post (Jan. 28, 2021), http://tinyurl.com/yc87vwew .................................20
ABC 7 Chi., US Rep. Kinzinger Reveals Over a Dozen Threatening Messages Sent To Republican Amid Jan. 6 Hearings (July 6, 2022), http://tinyurl.com/bdpnbxre ..................................30
Adriano Machado, Bolsonaro Backers Ransack Brazil Presidential Palace, Congress, Supreme Court, Reuters (Jan. 8, 2023, 11:17 PM), http://tinyurl.com/4vafnpe8 ...................................32
Alex Bellos, Chavez Rises from Very Peculiar Coup, Guardian (Apr. 15, 2002), http://tinyurl.com/4tsmjm4c ..................................11
Alexa Corse, Election Officials Plead for More Protection from Threats, Harassment, Wall St. J. (Aug. 3, 2022), http://tinyurl.com/yc634cz3 ..........27
v
Andrew Harding, South Africa Riots: The Inside Story of Durban’s Week of Anarchy, BBC (July 28, 2021), http://tinyurl.com/3hpy9cpf........................12
Aristotle, The Basic Works of Aristotle (Richard McKeon ed., trans., Random House New York, 1941) .......................................................................34
...................................16 ..................................17
Brennan Ctr. For J., Local Election Officials Survey (Mar. 2022), http://tinyurl.com/2s46fz93 ........26, 27
Brennan Ctr. for Just. & Bipartisan Pol’y Ctr.,
Election Officials Under Attack: How to Protect Administrators and Safeguard Democracy (June 16, 2021), http://tinyurl.com/29av7hhr .................23
Brian Jenkins & Chris Millington, France and Fascism: February 1934 and the Dynamics of Political Crisis (2015) ..............................................4
http://tinyurl.com/2s3v3hh8 .........18
Ashton Carter et al., All 10 Living Former Defense
Secretaries: Involving the Military in Election
Disputes Would Cross Into Dangerous Territory,
Wash. Post (Jan. 3, 2021),
http://tinyurl.com/zb592fx5
Ben Schreckinger, Meet the Vigilantes Who Patrol
Trump’s Rallies, Politico (Apr. 25 2016),
http://tinyurl.com/2bfpmtxb
Bridging Divides Initiative, Report: Election 2020
Political Violence Data and Trends (last accessed
Jan. 25, 2024),
vi
Carol D. Leonnig & Philip Rucker, I Alone Can Fix It: Donald Trump’s Catastrophic Final Year (2021)
................................................................................15
http://tinyurl.com/493znr8v...................................11
Citizens for Resp. & Ethics in Wash., The Evidence in Support of Couy Griffin’s Removal from Office (Sept. 6 2022), http://tinyurl.com/32khshds .........18
CivicPulse & Bridging Divides Initiative, Local Government Threats and Harassment Benchmarking Report (Nov. 30, 2023), http://tinyurl.com/ybrtpwh3 ..................................30
CivicPulse, Threats and Harassment in Local Government: Initial Benchmarking Report, (Sept. 25, 2023), available at http://tinyurl.com/4dvw6zsh
................................................................................29
Craig Mauger, Trump Recorded Pressuring Wayne County Canvassers Not to Certify 2020 Vote, Detroit News (Dec. 22, 2023), http://tinyurl.com/dhhrc2nr...................................14
David Klepper, Trump’s Angry Words Spur Warnings of Real Violence, Associated Press (Aug. 16, 2022), http://tinyurl.com/4yac2vmz.................24
Diane Jeantet & Carla Bridi, EXPLAINER: Bolsonaro Knocks Brazil’s Voting System, AP News
Chávez prepara grupos paramilitares por si pierde
las elecciones, Libertad Digital (Sept. 22, 2012),
vii (Sept. 6, 2022, 1:45 PM),
http://tinyurl.com/mb7js8x5 ..................................31
Diego A. Zambrano et al., How Latin America's Judges Are Defending Democracy, 35 J. Democracy, no. 1, 118 (2024)http://tinyurl.com/yc2b6j83 ...................................32
Donald J. Trump (@realDonaldTrump), Truth Social (Dec. 24, 2023, 5:32 PM),http://tinyurl.com/5bptjwef....................................24
Donald J. Trump (@realDonaldTrump), Truth Social (Jan. 10, 2024, 5:19 PM),http://tinyurl.com/bde3aw6r..................................24
Truth Social http://tinyurl.com/nh5m3hwv................................23
Donald J. Trump (@realDonaldTrump), X (Dec. 19, 2020, 1:42 AM), http://tinyurl.com/5dvpnj84........21
.......19
Donald J. Trump, Former President Trump Campaigns in Claremont, New Hampshire, CSPAN (Nov. 11, 2023), http://tinyurl.com/43csjkt2
................................................................................25
Economist, Jair Bolsonaro Is Barred from Office For Eight Years (June 30, 2023),http://tinyurl.com/2ssyakay...................................32
Donald J. Trump (@realDonaldTrump),
(July
4, 2022, 9:28 AM),
Donald J. Trump (@realDonaldTrump), X (Jan. 3,
2021, 8:57 AM), http://tinyurl.com/2uhjvamt
viii
Economist, Might Jair Bolsonaro Try to Steal Brazil’s Election? (July 14, 2022), http://tinyurl.com/bdfzv4wt ...................................31
End of the Third Republic in France, Guardian (July 11, 1940), available at http://tinyurl.com/57brkk6k
..................................................................................6
Erica Orden, Trump Lashes Out at Judge in Closing Arguments of Civil Fraud Trial, Politico (Jan. 11, 2024), http://tinyurl.com/467p6rcr ........................24
Flavia Chacon, On the Eve of Brazil's Military Coup Anniversary, Democracy Faces Historical Challenges (Lucas Peresin trans., Mar. 31, 2023, 2:31 PM), http://tinyurl.com/yyz8sx2v ..................32
.....................................9 http://tinyurl.com/4p92a2rs...........................7, 8, 10 ..................................10
...................................3
Freedom House, Freedom in the World 2009 (Arch
Puddington, et al., eds., 2009),
http://tinyurl.com/4djbpdkk
Freedom House, Freedom in the World 2011 (Arch
Puddington, et al., eds., 2011),
Freedom House, Freedom in the World 2023: Côte
d’Ivoire (last accessed Jan. 25, 2024),
http://tinyurl.com/26jt9hm5
Freedom House, New Report: Global Freedom
Declines for 17th Consecutive Year, but May Be
Approaching a Turning Point (Mar. 9, 2023),
http://tinyurl.com/bd47uyms
ix
Garen J. Wintemute et al., MAGA Republicans’ views of American democracy and society and support for political violence in the United States: Findings from a nationwide population-representative survey, PLoS One (2024)..................................28, 29
Giorgio Agamben, State of Exception (Kevin Attell, trans.) (2004), available at http://tinyurl.com/4cbnv586 ....................................6
..9
...14, 15, 19, 20
http://tinyurl.com/2p8y46a7.......19
Henry J. Gomez, Threats Linger Over Members of Congress As a Trump Adversary Calls It Quits, NBC News (Sept. 23, 2021, 2:16 PM), http://tinyurl.com/427xws2w .................................30
http://tinyurl.com/yf2wayvm .................................12 ...................................10
Glaister Leslie, Confronting the Don: The Political
Economy of Gang Violence in Jamaica, Small Arms
Survey (Sept. 2010), http://tinyurl.com/rkvkbc6u
H.R. Rep. No. 117-663, Final Report: Select
Committee to Investigate the January 6th Attack
on the United States Capitol (2022)
H.R. Select Comm. To Investigate the Jan. 6th Attack
on the U.S. Capitol, Interview of Russell Bowers
(June 19, 2022),
How Organised Crime is Blighting South Africa’s
Economy, Economist (Oct. 20, 2022),
Hum. Rts. Watch, Côte d’Ivoire: No Amnesty for
Serious Crimes of 2010-11 Crisis (Aug. 7, 2018),
http://tinyurl.com/zejjmrbu
x
Jack Detsch & Robbie Gramer, More Top Pentagon Officials Out After Trump Sacks Esper, Foreign Pol’y (Nov. 10, 2020), http://tinyurl.com/463ehjad
................................................................................15
Jennifer G. Cooke, The Election Crisis in Côte d’Ivoire, Ctr. for Strategic & Int’l Stud., (Dec. 7, 2010), http://tinyurl.com/mr4xx2xa ..................7, 10
......................16
Joel Day et al., Threats and Harassment Against Local Officials Dataset, Bridging Divides Initiative & ADL (Oct 20, 2022), http://tinyurl.com/4dhbhtys
................................................................................26
Jonathan Lehrfeld, Milley Says He’ll Ensure Family Safety after Trump’s Execution Remark, MilitaryTimes (Sept. 28, 2023), http://tinyurl.com/ytbvnadz ...................................25
Josef Federman & Melanie Lidman, Israel’s Supreme Court Overturns a Key Component of Netanyahu’s Polarizing Judicial Overhaul, AP News (Jan. 1, 2024, 2:54 PM), http://tinyurl.com/yk6dwsth .......33
.........10
Jim Garamone, Joint Chiefs Stress Service Members’
Commitment to Constitution, DOD News (Jan. 13,
2021), http://tinyurl.com/5347wmcj
Joseph V. Micallef, The Night Wolves: Russian
Motorcycle Club or Kremlin Militia?, Military.com
(Sept. 4, 2018), http://tinyurl.com/2htn3t2x
xi
http://tinyurl.com/2awmuy6b ........8
Leo Wolfson, By Her Voting Record, Liz Cheney Is a Staunch Conservative but Her Rift With Trump May Be Too Much to Overcome, Cowboy State Daily (Aug. 1, 2022), http://tinyurl.com/4s5h4wyv
................................................................................23
Leo Wolfson, Cheney Will Not Be Attending Wyo GOP Convention Because Eathorne Is “Oath Keeper”, Cowboy State Daily (May 5, 2022), http://tinyurl.com/ymc7u737 .................................23
Linda So & Jason Szep, U.S. Election Workers Get Little Help from Law Enforcement As Terror Threats Mount, Reuters (Sept. 8, 2021), http://tinyurl.com/43v842am .................................23
Linda So, Special Report: Trump-Inspired Death Threats Are Terrorizing Election Workers, Reuters (June 11, 2021), http://tinyurl.com/3yhjt47h..19, 20
http://tinyurl.com/4cj6x4hw.......14
Luke Barr, Special Counsel Jack Smith Targeted with Swatting Call in Late December: Sources, ABC News (Jan. 9, 2024), http://tinyurl.com/mu4j9u9 ...................................24
Kostya Manenkov & Daria Litvinova, Belarus Poll
Workers Describe Fraud in Aug. 9 Election, AP
(Sept. 1, 2020),
Lisa Mascaro, et al., Despite Trump Attacks, Both
Parties Vow Orderly Election, Associated Press
(Sept. 24, 2020),
xii
Mark Moore, Trump rips ‘despicable’ Liz Cheney after she suggests Jan. 6 charges for ex-president, NY Post (July 4, 2022), http://tinyurl.com/4eakez23
................................................................................23
Michael Beckel et al., Issue One, The High Cost of Turnover (Sept. 2023), http://tinyurl.com/4afu2y82
..........................................................................27, 28
Molly Amman & J. Reid Meloy, Stochastic Terrorism: A Linguistic and Psychological Analysis, 15 Perspectives on Terrorism, no. 5, 2 (Oct. 2021), http://tinyurl.com/5e5xn73w .................................22
.................................15 .........................................................8
.................................17
Oliver Stuenkel, Brazil’s political risk plummets
amid January 8 reaction, The Brazilian Report (Aug. 15, 2023, 9:33 AM), http://tinyurl.com/bdf72swm .................................32
National Task Force on Election Crises, Authorities
Governing the Deployment of Troops during the
Election and Post-Election Season (Sept. 2020),
http://tinyurl.com/3uus2pms
Nicholas Cheeseman & Brian Klaas, How to Rig an
Election (2018)
Nick Carey, From Bikers to Truckers, Pro-Trump
Groups Plan Forceful Presence in Cleveland,
Reuters (Apr. 29, 2016),
http://tinyurl.com/mr269asw
Org. for Sec. & Coop. Eur., Off. for Democratic Insts.
& Hum. Rts., Post-Election Interim Report: 20
xiii
Paul Gronke et al., Democracy Fund, Understanding the Career Journeys of Today’s Local Election Officials and Anticipating Tomorrow’s Potential Shortage (Apr. 20, 2021), http://tinyurl.com/56ah5y6z ..................................28
...................................12
Peter Eisler et al., Anatomy of a Death Threat, Reuters (Dec. 30, 2021),http://tinyurl.com/yeybed29...................................26
http://tinyurl.com/5n8txenj ..................13
Press Briefing, Ari Fleischer, White House Press Secretary, Press Briefing by Ari Fleischer (Apr. 12, 2002), http://tinyurl.com/y7crtrm2........................11
Press Release, U.S. Dep’t of Justice, Readout of
Election Threats Task Force Briefing with Election Officials and Workers (Aug. 1, 2022),http://tinyurl.com/5n7hb8m4.................................26
Qaanitah Hunter et al., Eight Days in July: Inside the Zuma Unrest That Set South Africa Alight(2021)......................................................................12
February – 3 March 2008 (2008),
http://tinyurl.com/4k9v7xs2
................................8, 9
Pauline Bax, Riots Reveal South Africa’s Enduring
Rifts, Int’l Crisis Grp. (July 23, 2021),
http://tinyurl.com/3tcd3avu
President Cyril Ramaphosa, Update on Security
Situation in the Country, South Africa Gov’t (July
16, 2021),
xiv
Rachel Kleinfeld & David Solimini, What Comes Next? Lessons for the Recovery of Liberal Democracy, Democracy Fund (Oct. 2018), http://tinyurl.com/2p8fbfdm ..................................33
Rachel Kleinfeld & Elena Barham, Complicit States and the Governing Strategy of Privilege Violence: When Weakness Is Not the Problem 215, 21 Ann. Rev. Pol. Sci. (2018), http://tinyurl.com/bdfpmude.9
http://tinyurl.com/5cef5kz8.......29, 30 ...........................12, 13
Ricardo Brito et al., Brazil’s Bolsonaro Does Not Concede to Lula, But Authorizes Transition, Reuters (Nov. 1, 2022, 9:33 PM), http://tinyurl.com/3rym88dk .................................31
Rob Kuznia & Scott Bronstein, The Cowboy, CNN (last accessed Jan. 26, 2024), http://tinyurl.com/2tjwsaue ...................................17
Robert A. Pastor, The United States Administration of Elections: Decentralized, Pre-modern, and Contented, Ace Project (2014), http://tinyurl.com/bdenw7p9 .................................27
Robert Burns & Lolita C. Baldor, Trump Fires Esper As Pentagon Chief After Election Defeat, Associated
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Diego (2023),
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Unrest (Nov. 29, 2021), available at
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xv
Press (Nov. 9, 2020), http://tinyurl.com/44rhv8wd
................................................................................15
...................................15
Ryan Lucas, Where the Jan. 6 Insurrection Investigation Stands, One Year Later, NPR (Jan. 6, 2022), http://tinyurl.com/2e8wtwbs.......................20
........................3
Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century(1993)........................................................................7
Sarah Repucci, Freedom in the World 2020: A Leaderless Struggle for Democracy, Freedom House (last accessed Jan. 25, 2024), http://tinyurl.com/22dah2cn ..................................34
Scott Wilson, Venezuela’s ‘Bolivarian Circles’ Get a Direct Line to President, Wash. Post, (Dec. 4, 2001), http://tinyurl.com/4tnbdn3j ........................11
...................................11
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Command: The Pentagon, The President, and
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http://tinyurl.com/57axep3s
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Democracy, no. 2, 12
(1991), http://tinyurl.com/4cynurxa
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Ousted, Wash. Post (Apr. 12, 2002),
http://tinyurl.com/55y2s3v7
xvi
http://tinyurl.com/3rmdesu3 ...9
Second Hearing on Investigation of January 6 Attack on the U.S. Capitol before the Select Comm. to Investigate the Jan. 6
YouTube (June 13, 2022), http://tinyurl.com/5hyrtcf4 ...................22
Sheri Berman, Democracy and Dictatorship in Europe: From the Ancien Regime to the Present Day (2019) ................................................................6
South Africa Looting: Government to Deploy 25,000 Troops After Unrest, BBC (July 15, 2021),http://tinyurl.com/yxj5dmn3..................................13
Steffi Feldman, Maine Secretary of State Says Home Was “Swatted” after Removing Trump from Presidential Ballot, Tag24 (Dec. 31, 2023), http://tinyurl.com/2kjb84ts....................................25
........................10
................................................................................19
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Commissioner, Philadelphia City),
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Uprooted by Conflict: UNHCR, Reuters (Mar. 25,
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xvii
.................................................................3
Susan Benesch, The Insidious Creep of Violent Rhetoric, Noema (Mar. 4, 2021), http://tinyurl.com/yyy54ecs ...................................21
Tarunabh Khaitan, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India, 14 L. & Ethics Hum. Rights, no. 1, http://tinyurl.com/2p8hm6vu..........34
The Federalist No. 1 (Alexander Hamilton).............34
...............................16
..............................3
Tom Ginsburg, Democratic Backsliding and the Rule of Law, 44 Ohio N. Univ. L. Rev. 351 (2018),http://tinyurl.com/yd5jwrpn ............................32, 33
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Die (2019)
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and Damage to Our Democracy: Testimony Before
the Select Comm. to Investigate the Jan. 6th Attack
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Endowment for International Peace), available at
http://tinyurl.com/yvnmumxu
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Comparative Experiences and Insights, in
Democracies Divided: The Global Challenge of
Political Polarization 257 (Thomas Carothers &
Andrew O’Donohue, eds., 2019)
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xviii
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18, 2018), http://tinyurl.com/56zjwvyk
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William L. Shirer, The Collapse of the Third Republic: An Inquiry Into the Fall of France in 1940 (1969)...........................................................4, 5
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.................11
BRIEF OF EXPERTS IN DEMOCRACY AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
BRIEF OF EXPERTS IN DEMOCRACY AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
INTEREST OF THE AMICI CURIAE1
Amici curiae are among the world’s leading ex- perts on democracy, political violence, and the rule of law. They have studied and written extensively about the fragility of democracy and the role of political vio- lence in contributing to democratic decline. Amici are uniquely positioned to provide a perspective to this Court on the ways that the experience of American de- mocracy leading up to, during, and after January 6, 2021 echoes patterns from around the world of the cor- rosion of democratic government by political violence.
Amici are:
• Dr. Ruth Ben-Ghiat, Professor of History and Italian Studies at New York Univer- sity;
• Dr. Sheri Berman, Professor of Political Science, Barnard College, Columbia Uni- versity;
• Dr. Larry Diamond, William L. Clayton Senior Fellow, Hoover Institution; Mosbacher Senior Fellow in Global Democ- racy, Freeman Spogli Institute for Interna- tional Studies, Stanford University;
1 Pursuant to Rule 37.6, no party’s counsel authored this brief in whole or in part, no party or party’s counsel contributed money intended to fund this brief, and no person other than amici and their counsel contributed money to fund this brief.
2
Dr. Rachel Kleinfeld, senior fellow, Carne- gie Endowment for International Peace;
Dr. Steven Levitsky, Professor of Govern- ment and Director of the David Rockefeller Center for Latin American Studies at Har- vard, Harvard University; and
Dr. Timothy Snyder, Richard C. Levin Pro- fessor of History and Public Affairs, Faculty Advisory of Fortunoff Archive for Video Holocaust Testimonies, Yale University.
Amici’s titles and affiliations are listed for identi- fication only; amici submit this brief in their personal capacities.
INTRODUCTION AND SUMMARY OF ARGUMENT
This brief seeks to provide the Court with an un- derstanding of how the events surrounding the 2020 election and the violence on January 6, 2021, appear in relation to events that have caused democratic ero- sion and collapse in other countries.
Democracy is historically rare. For the vast major- ity of human history, people have been the subjects of despots, monarchs, and empires. Some of these socie- ties were ruled well, and some poorly – but in none of them were citizens able to choose their leaders, peace- fully express the policies by which they wished to be governed, and thereby alter their country’s course when needed. Democracy has proven to be a uniquely self-correcting system that has created the wealthiest, freest societies that have ever existed.
But democracy is fragile. In the 1930s and 1940s, as democracies fell to authoritarians on the left and
3
right, America became one of just 12 surviving democ- racies by 1942.2 The years since saw democracy gain ground globally. But over the last 17 years, democra- cies have once again been culled.3
While the Cold War was marked by democracies collapsing via coups and wars, the majority of decline and failure today occurs under democratically elected politicians who use their popularity to undermine con- stitutions, laws, and norms from within. Most democ- racies die now at the hands “not of generals but of elected leaders — presidents or prime ministers who subvert the very process that brought them topower.”4 The decline and loss of democracy can be ex- tremely rapid. Severe polarization that enables lead- ers to erode democracy with voter support unfolds in- tensely, often in a handful of years.5
Since our founding, Americans have understood our system of government to be precious. That com- mitment has allowed us to build what is now the old- est and longest-standing democracy on our planet.
But the longstanding vigor of our democracy also creates a unique vulnerability: most of our nation
2 3
4 5
Samuel P. Huntington, Democracy’s Third Wave, 2 J. Democ-
racy, no. 2, 12, 12, (1991), http://tinyurl.com/4cynurxa.
Freedom House, New Report: Global Freedom Declines for 17th
Consecutive Year, but May Be Approaching a Turning Point
(Mar. 9, 2023), http://tinyurl.com/bd47uyms.
Steven Levitsky & Daniel Ziblatt, How Democracies Die 3
(2019).
Thomas Carothers & Andrew O’Donohue, Comparative Experi-
ences and Insights, in Democracies Divided: The Global Chal- lenge of Political Polarization 257, 265 (Thomas Carothers & An-
drew O’Donohue, eds., 2019)
.
4
takes our strong institutions for granted. While the experience of government collapse was very much within the living memory of the drafters of the Four- teenth Amendment when they sought to create checks against the overthrow of America’s constitutional or- der in 1868, Americans today have no reference point for an experience that could end our form of govern- ment.
This brief steps outside the limits of our firsthand experience to consider historical and comparative ex- periences of how democracies are attacked from within, weakened, and at times, destroyed.
ARGUMENT
France was Europe’s oldest democracy in 1934, when it was beset by polarization between its left and right. On February 6, a series of far-right and veter- ans’ groups rallied in protest of what they believed was a conspiracy that presaged a far-left government takeover. 6 The 10,000 or so protestors were composed of a mix of committed members of violent ideological groups, and hangers-on. 7 As night came on and the incoming left-wing Prime Minister, Édouard Daladier tried to invest his new cabinet, the crowd marched to- wards the Parliament building.8 The police tried to hold them back, but the mob threw metal grates and
6 Brian Jenkins & Chris Millington, France and Fascism: Febru- ary 1934 and the Dynamics of Political Crisis 1-2, 48-50, (2015); William L. Shirer, The Collapse of the Third Republic: An Inquiry Into the Fall of France in 1940 193-200 (1969).
7 Jenkins & Millington, supra n. 6, at 1. 8 Shirer, supra n. 6, at 193-200.
5
rocks. 9 Wielding long poles with razor blades at the ends, they slashed the legs of police horses.10 Fourteen people were killed.11 Though the violent groups failed to breach the Parliament building, they had support from Members inside.12 Right and left-leaning mem- bers fought, and as the violence continued outside Parliament’s walls, they held a series of no-confidence votes that undermined the new Prime Minister. 13 Un- able to lead a government, Daladier resigned the next day and made way for a new leader who satisfied the far-right.14 An attempt to hold a balanced investiga- tion of the incident fell victim to partisan polarization. Members of Parliament excused violent extremists as martyrs and refused to participate.15 The politician accused of masterminding the violence refused to be shamed, claiming, “there are moments when insurrec- tion is the most sacred of duties.”16
The French Republic endured the night of Febru- ary 6, but the events left it fatally injured. The next center-left premier was nearly beaten to death by a
9 Id. at 194.
10 Id.
11 Id. at 200.
12 William D. Irvine, French Conservatism in Crisis: The Repub- lican Federation of France in the 1930s 100, 107–9 (1979).
13 Shirer, supra n. 6, at 196. 14 Id. at 202.
15 Irvine, supra n. 12, at 118. 16 Id. at 116–17.
6
far-right extremist.17 Workers launched crippling strikes.18 Governing became impossible, and leaders grew used to ruling through executive decree.19 In 1940, when presented with the choice of how to govern the third of the country it controlled following Ger- many’s invasion, parliament voted to kill France’s re-maining democracy without even a discussion.20 They erected an authoritarian state in its stead.21
I.
International experiences of democratic corrosion through violence are instruc- tive.
A. The refusal to cede power is partic- ularly dangerous to democracies.
There are many risk factors that make democra- cies more likely to falter or fail. But no single element is as important as an elected leader conceding power peacefully based on the will of the voters. Countries whose leaders take that action are democratic – how- ever illiberal or flawed they may be. The peaceful transition of power is so important that one of the 20th century’s foremost political scientists, Samuel Hun-tington, established the benchmark that no democ- racy could be considered safely consolidated until one
17 Sheri Berman, Democracy and Dictatorship in Europe: From the Ancien Regime to the Present Day 181 (2019).
18 Id.
19 Giorgio Agamben, State of Exception (Kevin Attell, trans.)
(2004), available at http://tinyurl.com/4cbnv586.
20 End of the Third Republic in France, Guardian (July 11, 1940),
available at http://tinyurl.com/57brkk6k. 21 Id.
7
party had peacefully transferred power to another, and the same had occurred in the other direction.22
The United States is not the first democracy to have an incumbent leader refuse to concede after legal challenges were exhausted. But there are no parallels among strong, consolidated democracies. The events of January 6 unfortunately bear closer resemblance to what happens in some of the world’s weakest democ- racies.
Globally, incumbents who wish to hold power reach first for bureaucratic means to alter election re- sults. They pressure the organizations and individu- als who have power over the vote count to find in theirfavor. In Cote d’Ivoire’s 2010 election, for instance, the independent electoral commission released provi- sional results showing that incumbent president Lau- rent Gbagbo had lost.23 The President refused to con- cede.24 He instead pressured his loyalists on the Con- stitutionalCounciltoact.25 Claimingthatwidespread fraud had occurred in northern districts that sup- ported the challenger, the Constitutional Council an- nulled the results of those geographies.26 The next
22 Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century 266-67 (1993).
23
http://tinyurl.com/4p92a2rs.
24 Jennifer G. Cooke, The Election Crisis in Côte d’Ivoire, Ctr. for Strategic & Int’l Stud., (Dec. 7, 2010), http://ti- nyurl.com/mr4xx2xa.
25 Id. 26 Id.
Freedom House, Freedom in the World 2011 177 (Arch Pud-
dington, et al., eds., 2011),
8
day, the Constitutional Council named Gbagbo the winner with 51% of the vote.27
In more authoritarian countries, politicians are more direct in their election manipulation. In Equato- rial Guinea, an election official was forced to sign off on the official results as a gun was held to his head.28 In Belarus’ recent elections, President Lukashenko simply ordered election officials to decide the election by a specific percentage of votes.29
B. Some leaders use state violence to remain in power.
Bureaucratic efforts to retain power against the
will of voters are generally carried out long before election day. Those that occur after an incumbent has
lost tend to require force.
In weak democracies with strong security sectors,
parties that want to maintain their power after losing elections often rely on government forces. After Arme- nia’s 2008 election, the central Election Commission
announced that
Suspicious of fraud, protestors took to the
streets.31 Early days of the protest were peaceful, until
Prime Minister Serzh Sargsyan had
won.30
27 Freedom House, supra n. 23. 28
.
29 Id. at 160, 199; see also
Nicholas Cheeseman & Brian Klaas, How to Rig an Election
24 (2018)
Belarus Poll Workers Describe Fraud in Aug. 9 Election, AP
(Sept. 1, 2020),
Org. for Sec. & Coop. Eur., Off. for Democratic Insts. & Hum.
30
31 Id.
http://tinyurl.com/2awmuy6b.
.
Kostya Manenkov & Daria Litvinova,
Rts., Post-Election Interim Report: 20 February – 3 March 2008
1 (2008), http://tinyurl.com/4k9v7xs2
32 Id. at 4. 33
34 Id. at 45.
.
9
the president deployed the police and armed forces to
take “determined and sharp” actions to preserve “sta- bility.”32 The ensuing violence killed ten people.33 The unrest provided an excuse for the President to intro- duce a 20-day state of emergency during which he and
the Prime Minister consolidated control.34
C. Other leaders turn to mob violence to retain power.
In Jamaica, pol- iticians have engaged criminal gangs.37 Vladimir
In less authoritarian contexts, however, leaders
often wish to use force to retain power, but seek to maintain plausible deniability. These politicians cul- tivate violent groups willing to deploy force to achieve the politician’s goals without explicit direction from the politician.35 These groups may be highly organized paramilitary forces, or euphemistically named “youth
wings” of the ruling political party.36
Freedom House, Freedom in the World 2009, 43, (Arch Pud-
dington, et al., eds., 2009), http://tinyurl.com/4djbpdkk
35 Rachel Kleinfeld & Elena Barham, Complicit States and the Governing Strategy of Privilege Violence: When Weakness Is Not the Problem 215, 221-23, 225-26, 21 Ann. Rev. Pol. Sci. (2018), http://tinyurl.com/bdfpmude.
36 Sebastian Angzoorokuu Paalo, Political Party Youth Wings and Political Violence in Sub-Saharan Africa: A Case of Ghana, |
8 Int’l J. Peace & Dev. Stud., no. 1 (2017), http://ti- nyurl.com/3rmdesu3. |
37
Glaister Leslie, Confronting the Don: The Political Economy of
Gang Violence in Jamaica, Small Arms Survey, 12-13 (Sept.
2010), http://tinyurl.com/rkvkbc6u
.
10
Putin uses the Night Wolves motorcyclists, whose leader carried the torch in the Sochi Olympics and whose rank and file were among the groups sent to invade Crimea.38
In Cote d’Ivoire’s 2010 election, after the altera-
tion of election results, the challenger, Alassane Ouat-
tara, held an inauguration ceremony that conflicted with the ceremony of President Gbagbo.39 The presi- dent rallied violent supporters to attack opposition supporters.40 The latter fought back, and the ensuing unrest killed at least 3,000 Ivorians and forced a mil- lion more to flee their homes.41 While unrest eventu- ally ended, Cote d’Ivoire’s democratic experiment did not recover. Future elections were so tilted towards the incumbent party that opposition forces had little chance of winning, and political violence has become
an entrenched means of political contestation.42
In Venezuela, after winning free and fair elections in 1998 and 2000, Hugo Chavez began organizing
38
. 39 Cooke, supra n. 24.
40 Wairagala Wakabi, Prosecution Lays Out Evidence in Support of Continuation of Gbagbo’s Trial, Int’l Just. Monitor (Nov. 5, 2018), http://tinyurl.com/ycyumzx5.
Joseph V. Micallef, The Night Wolves: Russian Motorcycle Club
or Kremlin Militia?, Military.com (Sept. 4, 2018), http://ti-
nyurl.com/2htn3t2x
41
42
; Freedom House, supra n. 23.
Hum. Rts. Watch, Côte d’Ivoire: No Amnesty for Serious Crimes
of 2010-11 Crisis (Aug. 7, 2018), http://tinyurl.com/zejjmrbu;
Stephany Nebehay, Nearly One Million Ivorians Uprooted by Conflict: UNHCR, Reuters (Mar. 25, 2011), http://ti-
nyurl.com/bd5s2d9c
Freedom House, Freedom in the World 2023: Côte d’Ivoire (last
accessed Jan. 25, 2024), http://tinyurl.com/26jt9hm5.
11
grassroots supporters into “Bolivarian Circles” that
were loyal to Chavez himself.43 In April of 2002, vast numbers of Venezuelans turned out to protest his placing loyalists in charge of a crucial government body.44 Members of the military refused to fire on the protestors.45 The Bolivarian Circles came to Chavez’s
support and violently routed the protestors, after which the military high command attempted to re- place Chavez.46 However, Chavez sidestepped the at- tempted coup and regained control.47 He later re-named the Bolivarian Circles “colectivos” and institu- tionalized them after his landslide election in 2006, providing them with arms.48 The colectivos attacked Chavez’s opponents as Chavez systematically de-
stroyed what remained of Venezuelan democracy.49
43 Scott Wilson, Venezuela’s ‘Bolivarian Circles’ Get a Direct Line to President, Wash. Post, (Dec. 4, 2001), http://ti- nyurl.com/4tnbdn3j;
.
44 Alex Bellos, Chavez Rises from Very Peculiar Coup, Guardian
(Apr. 15, 2002), http://tinyurl.com/4tsmjm4c.
45 Press Briefing, Ari Fleischer, White House Press Secretary, Press Briefing by Ari Fleischer (Apr. 12, 2002), http://ti- nyurl.com/y7crtrm2.
Venezuela Investigative Unit, The Devolu-
tion of State Power: The ‘Colectivos,’ InSight Crime (May 18,
2018), http://tinyurl.com/56zjwvyk
Scott Wilson, Venezuelan Military Says Chavez Is Ousted,
46
zuela Investigative Unit, supra n. 43.
47 Venezuela Investigative Unit, supra n. 43.
48 Id. 49
yurl.com/493znr8v.
; Vene-
http://tin-
Wash. Post (Apr. 12, 2002), http://tinyurl.com/55y2s3v7
Chávez prepara grupos paramilitares por si pierde las eleccio-
nes, Libertad Digital (Sept. 22, 2012),
12
In South Africa, former President Jacob Zuma had cultivated a personal militia of military veterans,50 and his “Radical Economic transformation” (RET) fac- tion of the African National Congress was connected to a variety of organized criminal groups.51 Zuma was facing a judicial inquiry into corruption that had oc- |
curred during his presidency – and having avoided the court for months, had been sentenced by the Consti- tutional Court to 15 months in prison for his “ongoing assaults on the integrity of the judicial process.”52 Just after his arrest, the country exploded into eight days of anarchy. Mass looting, arson and unrest killed 300 people.53 At first, the violence appeared to be a spon- taneous outburst of anger from Zuma supporters. But many people knew of the plans ahead of time.54 The Expert Panel into the July 2021 Civil Unrest coined the term “organized spontaneity” to describe violence that was catalyzed by a pre-planned effort and supple- mented by opportunists. They described a political |
50 Qaanitah Hunter et al., Eight Days in July: Inside the Zuma Unrest That Set South Africa Alight, 23-25 (2021).
51
http://tinyurl.com/yf2wayvm.
52 Sec’y of Jud. Comm’n of Inquiry into Allegations of State Cap- ture, Corruption & Fraud in the Pub. Sector including Organs of State v. Zuma [2021] ZACC 18 at 17 para. 30.
53 Andrew Harding, South Africa Riots: The Inside Story of Dur- ban’s Week of Anarchy, BBC (July 28, 2021), http://ti- nyurl.com/3hpy9cpf.
54
How Organised Crime is Blighting South Africa’s Economy,
Economist (Oct. 20, 2022),
Report of the Expert Panel into the July 2021 Civil Unrest 38-
39 (Nov. 29, 2021), available at http://tinyurl.com/22wxzzzw; see also Pauline Bax, Riots Reveal South Africa’s Enduring Rifts,
Int’l Crisis Grp. (July 23, 2021), http://tinyurl.com/3tcd3avu.
13
faction willing to destroy the country in order to make it ungovernable and force President Ramaphosa to free Zuma, then step down.55 President Ramaphosa maintained South Africa’s democracy, but only through the largest deployment of troops since apart-
heid.
He explained: “
the events of the past week were nothing less than a deliberate, coordinated and well-planned attack on our democracy. . . . Using the pretext of a political grievance, those behind these acts have sought to provoke a popular insurrection.”57
II. Trump’s actions in the wake of the No- vember 2020 election are alarmingly simi- lar to activities that have destroyed de- mocracies in other countries.
Refusal to concede power: On September 23, 2020 a reporter asked President Trump if he would accept a peaceful transfer of power. He replied, “We’re going to have to see what happens,” and spoke of hisconcerns regarding ballot fraud.58 The grave danger to
55 Report of the Expert Panel, supra n. 54, at 38-39.
56 South Africa Looting: Government to Deploy 25,000 Troops Af-
ter Unrest, BBC (July 15, 2021), http://tinyurl.com/yxj5dmn3. 57
http://ti-
nyurl.com/5n8txenj.
58 Aamer Madhani & Kevin Freking, Trump Won’t Commit to Peaceful Transfer of Power if He Loses, Associated Press (Sept. 23, 2020), http://tinyurl.com/ybavz2uc.
56
During and since the 2020 election, Trump’s ac-
tions have echoed these overseas experiences in
alarming ways.
President Cyril Ramaphosa, Update on Security Situation in
the Country, South Africa Gov’t (July 16, 2021),
14
democracy of an incumbent refusing to concede was clear to other political leaders. Multiple members of Congress felt the need to publicly state that the tradi- tion of peaceful presidential transitions would con- tinue. Senate Majority Leader Mitch McConnell, for instance, wrote,
59
candidate60
.61 Trump’s the Republi- can Secretary of State of Georgia explaining, “So look.
59
http://ti- nyurl.com/4cj6x4hw. In fact, the first transfer of power between parties occurred in 1801, when John Adams stepped down and
Thomas Jefferson assumed the Presidency.
60 Craig Mauger, Trump Recorded Pressuring Wayne County Canvassers Not to Certify 2020 Vote, Detroit News (Dec. 22, 2023), http://tinyurl.com/dhhrc2nr.
“The winner of the November 3rd
election will be inaugurated on January 20th. There will be an orderly transition just as there has been
every four years since 1792.”
Pressure to alter the election through bu-
reaucratic means: Incumbent leaders who wish to retain power after losing an election first try to apply bureaucratic pressure to alter the vote. President Trump’s calls to Wayne County officials in Michiganpressuring them not to certify the results of votes in a
geography likely to support his opposing
resemble President Gbagbo’s strategy in Cote d’Ivoire.
The effort to create multiple slates of electors in the hopes that the confusion would enable loyal Members of Congress to decide the election in his favor is a sim-
ilar bureaucratic tactic
call to
Lisa Mascaro, et al., Despite Trump Attacks, Both Parties Vow
Orderly Election, Associated Press (Sept. 24, 2020),
61
H.R. Rep. No. 117-663, Final Report: Select Committee to In-
vestigate the January 6th Attack on the United States Capi-
tol, at 41 (2022) (hereinafter “J6 Report”)
.
15
All I want to do is this. I just want to find 11,780 votes, which is one more than we have,”62 echoes President Lukashenko’s direction to finalize specific percent- ages of votes in Belarus.
Exploring the use of state violence:
According
to multiple senior security officials, Trump explored
using state violence to retain power
.63
The then-
Chairman of the Joint Chiefs of Staff, Mark Milley told historians he was concerned that Trump ““wasstoking unrest, possibly in hopes of an excuse to in- voke the Insurrection Act” to remain in office, the
strategy employed in Armenia in 2008.
were heightened when Trump fired senior Pentagon officials days after Biden had been declared the win-
64
Concerns
ner, and replaced them with loyalists.65
62 Id. at 263. 63
Discussion of the president’s
potential use of the Insurrection Act was so widespread that the National Task Force on Election Crises (on which Dr. Kleinfeld serves) drafted a report on the authorities governing troop de- ployment during the election and post-election season:
64 Carol D. Leonnig & Philip Rucker, I Alone Can Fix It: Donald Trump’s Catastrophic Final Year 437 (2021).
65 Robert Burns & Lolita C. Baldor, Trump Fires Esper As Pen- tagon Chief After Election Defeat, Associated Press (Nov. 9, 2020), http://tinyurl.com/44rhv8wd; Jack Detsch & Robbie Gramer, More Top Pentagon Officials Out After Trump Sacks Es- per, Foreign Pol’y (Nov. 10, 2020), http://tinyurl.com/463ehjad.
Ryan Goodman & Justin Hendrix, Crisis of Command: The
Pentagon, The President, and January 6, Just Sec. (Dec. 21,
2021), http://tinyurl.com/57axep3s.
Task Force on Election Crises, Authorities Governing the Deploy- ment of Troops during the Election and Post-Election Season
National
(Sept. 2020), http://tinyurl.com/3uus2pms.
16
However, the highly professional U.S. military was unwilling to be misused in this manner. On Jan- uary 3, 2021, all ten living former Secretaries of De- fense published an unprecedented joint op-ed in sup- port of a peaceful transfer of power.66 After January 6, the institution appears to have felt the need to erect further guardrails. On January 13, every member of the serving Joint Chiefs of Staff signed a memo to the entire active-duty force reaffirming that Biden was the rightful president and reminding members of the military that “Any act to disrupt the Constitutional process is not only against our traditions, values, and oath, it is against the law.”67
Cultivating ties to private groups willing to
use violence: President Trump began cultivating re- lationships with potentially violent groups of loyalists for years prior to the 2020 election. He allowed the Oath Keepers to serve as security for multiple election rallies in 2016 and 2020.68 The vigilante group Bikers for Trump, provided volunteer security to multiple Trump rallies, and Trump’s head of security
66
67
68
Ashton Carter et al., All 10 Living Former Defense Secretaries:
Involving the Military in Election Disputes Would Cross Into Dangerous Territory, Wash. Post (Jan. 3, 2021), http://ti-
nyurl.com/zb592fx5.
Jim Garamone, Joint Chiefs Stress Service Members’ Commit-
ment to Constitution, DOD News (Jan. 13, 2021), http://ti-
nyurl.com/5347wmcj.
The Rise in Political Violence in the United States and Damage
to Our Democracy: Testimony Before the Select Comm. to Investi- gate the Jan. 6th Attack on the U.S. Capitol, 117th Cong. 12 (2022) (testimony of Rachel Kleinfeld, Senior Fellow, Carnegie Endowment for International Peace), available at http://ti-
nyurl.com/yvnmumxu.
17
, “I'm anticipating we'll be doing a victory dance,” but, “if the Republican Party tries to pull off any backroom deals [to prevent Trump’s nomination] . . . our role will
change."70
In 2019, a New Mexico County Commissioner
named Couy Griffin came to Trump’s attention after starting a group called Cowboys for Trump. Trump called Griffin personally and met with him in the oval office in September 2019.71 When Griffin posted a video of himself speaking at a New Mexico rally claim- ing that
reportedly embraced Chris Cox, its leader, and con- ferred with him during a 2016 rally when a reporter was present.69 As with the Bolivarian Circles in Ven- ezuela, these groups are willing to engage in acts of lawless violence out of personal loyalty to Trump. Cox, the leader of Bikers for Trump, explained at the 2016
Republican National Convention in Cleveland
“I’ve come to a place where I’ve come to the
conclusion that the only good Democrat is a dead Democrat,” Trump retweeted this clip, but cut the por- tion when Griffin backtracked, claiming that he
“[doesn’t] say that in a physical sense.”72
Ben Schreckinger, Meet the Vigilantes Who Patrol Trump’s
69 70
71 Rob Kuznia & Scott Bronstein, The Cowboy, CNN (last ac- cessed Jan. 26, 2024), http://tinyurl.com/2tjwsaue.
72 Id.
Rallies, Politico (Apr. 25 2016), http://tinyurl.com/2bfpmtxb.
Nick Carey, From Bikers to Truckers, Pro-Trump Groups Plan
Forceful Presence in Cleveland, Reuters (Apr. 29, 2016), http://ti-
nyurl.com/mr269asw.
18
Griffin organized a series of armed Stop the Steal
rallies in New Mexico in the fall of 2020.73 Griffin later took part in a cross-country bus tour where he rallied supporters to the January 6 rally with apocalyptic language, and he took part in the January 6 rally it- self.74 He was later disqualified from holding office un-
der the Fourteenth Amendment.75
Deploying private violence to pressure offi-
cials who could alter election results: The vio- lence that emerged from these vigilante groups fol- lows the pattern of violence used to pressure oppo-
nents in weak democracies.
In the 11 weeks between the election and Inaugu- ration Day, organized paramilitary groups at protests grew by 96% compared to the 11 weeks prior.76 As President Trump made hundreds of claims of election fraud, a fifth of all Stop the Steal rallies nationally came to feature armed or paramilitary actors.77
Trump spoke to Russell Bowers, Speaker of the Arizona House of Representatives, multiple times in November and December asking him to deliver
73 New Mexico v. Griffin,
74 Citizens for Resp. & Ethics in Wash., The Evidence in Support of Couy Griffin’s Removal from Office (Sept. 6 2022), http://ti- nyurl.com/32khshds.
Trump used his supporters’ intimations of force to
pressure election officials into altering the vote.
4295619, at *5 (N.M. 1st Jud. Dist., Sept. 6, 2022).
No. D-101-CV-202200473, 2022 WL
75 Griffin, 2022 WL 4295619, at *25 . 76
nyurl.com/2s3v3hh8. 77 Id.
http://ti-
Bridging Divides Initiative, Report: Election 2020 Political Vi-
olence Data and Trends 10 (last accessed Jan. 25, 2024),
19
Arizona’s electors to Trump.78 After Bowers’ home ad- dress and personal cell phone were posted online on December 8, demonstrators, some of them armed, pro- tested with bullhorns outside of his family home where his adult daughter lay dying.79
In Georgia in November, as two recounts failed to
alter Georgia’s election results in Trump’s favor, Oath
Keepers arrived on the street where Secretary of State Brad Raffensperger lived. Earlier that day, their wid- owed daughter-in-law’s home had been broken into.80 The family went temporarily into hiding.81 AfterRaffensperger refused Trump’s request to “find” votes, the President tweeted that Raffensperger was unable or unwilling to do anything.82 A deluge of death threats against Raffensperger and his family fol- lowed.83
On December 5, Trump spoke to a rally of his sup-
porters and showed them a video of Fulton County’s
elections director, Richard Barron. He accused Barron and his office of tampering with ballots, after which
78 J6 Report, supra n. 61, at 286-89. 79
http://tinyurl.com/2p8y46a7.
80
81 Id. 82
83 Linda So, Special Report: Trump-Inspired Death Threats Are Terrorizing Election Workers, Reuters (June 11, 2021), http://ti- nyurl.com/3yhjt47h.
H.R. Select Comm. To Investigate the Jan. 6th Attack on the
U.S. Capitol, Interview of Russell Bowers, at 52-55 (June 19,
2022),
Steve Fennessy & Jess Mador, Georgia Today: Behind Relent-
less Death Threats Against Raffenspergers, Georgia Election Of-
ficials, GPB News (June 18, 2021), http://tinyurl.com/yes2euxm
Donald J. Trump (@realDonaldTrump), X (Jan. 3, 2021, 8:57
AM), http://tinyurl.com/2uhjvamt.
20
Barron was inundated with threats, one detailed enough to warrant a police detail outside his home.84
On January 6, Oath Keepers and the Proud Boys (with whom they appear to have coordinated), formed two of the core groups of armed instigators who would jumpstart the violence that day. The Proud Boys did not attend Trump’s speech at the Ellipse but gathered separately and marched to the Capitol hours earlier, and one of their members would be the first to breach the building.85 Oath Keepers pre-stocked munitions, money, and armaments in a hotel just across state lines and created a stack formation to enter the capitol with purpose and preparation.86
Like the “organised spontaneity” of Jacob Zuma’s insurrection in South Africa, such pre-organized groups are provocateurs who can precipitate more spontaneous violence from others in a crowd who may not have begun with that intent. But the planning was clear to violence researchers who monitor online dis- cussions within far-right communities. On December 21, violence researcher Arieh Kovler predicted:
84 Id.
85 J6 Report, supra n. 61, at 644-45, 653.
86 Ryan Lucas, Where the Jan. 6 Insurrection Investigation Stands, One Year Later, NPR (Jan. 6, 2022), http://ti- nyurl.com/2e8wtwbs.
87 Aaron Blake, Who Could Have Predicted the Capitol Riot? Plenty of People – Including Trump Allies, Wash. Post (Jan. 28, 2021), http://tinyurl.com/yc87vwew.
January 6, armed Trumpist militias will be rallying in DC, at Trump's orders. It's highly likely that they'll try to storm the Capitol after it certifies Joe Biden's
“On
win.”87
21
Like other politicians with ties to violent follow- ers, Trump does not directly order violence – but his audience nonetheless receives what they believe to be a clear understanding of his intent. On December 19 when
As
one of Trump’s supporters explained
III. Trump continues to undermine the rule of law and threaten our governing insti- tutions.
The violence of January 6 did not shock President Trump into altering his behavior to avoid rousing his followers to violence. Instead, his continuing mes- sages to supporters evoke a technique researchers call
88 Donald J. Trump (@realDonaldTrump), X (Dec. 19, 2020, 1:42 AM), http://tinyurl.com/5dvpnj84.
89 Susan Benesch, The Insidious Creep of Violent Rhetoric, Noema (Mar. 4, 2021), http://tinyurl.com/yyy54ecs.
90 Id.
Trump tweeted: “Big protest in D.C. on January
6th. Be there, will be wild!”88 the online community,
TheDonald “immediately reacted with posts like: ‘Well, shit. We’ve got marching orders, bois’ and ‘We have been waiting for Trump to say the word.’” To that, another replied, ‘’Then bring the guns we shall,’ and they went on to describe plans for attacking the
Capitol and arresting or even killing legislators.”89
, “He can’t exactly
openly tell you to revolt. This is the closest he’ll ever
get.”90
22
stochastic terrorism.91 Stochastic violence occurs when a figure with a large following publicly demon- izes a target, knowing that it is impossible to predict who among the followers will act violently, but almost a certain probability that someone will aim for the de- sired mark.
Philadelphia’s election commission, described to the January 6 Select Committee, that “Prior to [Trump’s tweet] the threats were pretty general in na- ture . . . . after the president tweeted at me by name . ..
92 These threats led Schmidt’s
91 King Henry II’s exhortation, “Will no one rid me of this med- dlesome priest?” which led to Archbishop Thomas Beckett’s mur- der, may be the first use of this technique. Molly Amman & J. Reid Meloy, Stochastic Terrorism: A Linguistic and Psychologi- cal Analysis, 15 Perspectives on Terrorism, no. 5, 2, 2 (Oct. 2021), http://tinyurl.com/5e5xn73w.
92 Second Hearing on Investigation of January 6 Attack on the U.S. Capitol before the Select Comm. to Investigate the Jan. 6
YouTube (June 13, 2022), http://tinyurl.com/5hyrtcf4.
Trump has repeatedly targeted individuals who
uphold the rule of law against his wishes, particularly fellow Republicans. Al Schmidt, the only Republican
on
the threats became much more specific, much more
graphic, and included not just me by name, but in- cluded members of my family, by name, ages, our ad- dress, pictures of our home – just every bit of detail
you can imagine.”
Attack on the U.S. Capitol, 117th Cong. 02:45 – 03:27 (2022) (tes- timony of Al Schmidt, Commissioner, Philadelphia City),
th
23
family to temporarily evacuate his home and receive a personal security detail.93
Representative Liz Cheney (R-WY), one of two Republicans who served on the House Select Com- mittee to Investigate the January 6th Attack on the United States Capitol, faced villainizing Trump tweets on after she recommended that he face crimi- nal charges in July 2022.94 She was barely able to campaign for reelection in her own state that fall be- cause of threats.95
Trump has used the same technique to threaten governing institutions. On August 8, 2023, he pub- lished a long statement and a post to Truth Social de- scribing how his Mar-A-Lago home was “under siege, raided, and occupied by a large group of FBI agents”. A Trump follower named Ricky Shiffer replied to the message the following day, and later tried to breach
93 Linda So & Jason Szep, U.S. Election Workers Get Little Help from Law Enforcement As Terror Threats Mount, Reuters (Sept. 8, 2021), http://tinyurl.com/43v842am; Brennan Ctr. for Just. & Bipartisan Pol’y Ctr., Election Officials Under Attack: How to Protect Administrators and Safeguard Democracy 3 (June 16, 2021), http://tinyurl.com/29av7hhr.
94
nyurl.com/4eakez23.
95 Leo Wolfson, By Her Voting Record, Liz Cheney Is a Staunch Conservative but Her Rift With Trump May Be Too Much to Over- come, Cowboy State Daily (Aug. 1, 2022), http://ti- nyurl.com/4s5h4wyv; Leo Wolfson, Cheney Will Not Be Attending Wyo GOP Convention Because Eathorne Is “Oath Keeper”, Cow- boy State Daily (May 5, 2022), http://tinyurl.com/ymc7u737.
Truth Social (July 4, http://tinyurl.com/nh5m3hwv; Mark Moore, Trump rips ‘despicable’ Liz Cheney after she suggests Jan. 6charges for ex-president, NY Post (July 4, 2022), http://ti-
Donald J. Trump (@realDonaldTrump),
2022, 9:28 AM),
24
the FBI’s Cincinnati office armed with an assault rifle
and body armor, exchanging gunfire with police.96
On January 10, 2024, at 5:19 pm, Trump posted to Truth Social about the “Trump Hating Judge” in his New York civil case.97 Twelve hours later, at 5:30 am on January 11, police responded to a hoax bomb threatcalled in at Judge Arthur Engoron’s home in a swat- ting incident intended to bring a mass police re-
sponse.98
Trump posted an angry message about Depart-
ment of Justice Special Counsel Jack Smith to Truth Social at 5:32 pm on Christmas Eve, 2023.99 On Christmas Day, Smith was swatted at his family’s home. 100
The day after Maine’s Secretary of State, Shenna
Bellows, issued a decision removing Trump from the state ballot, he posted on Truth Social with a link to
96 David Klepper, Trump’s Angry Words Spur Warnings of Real Violence, Associated Press (Aug. 16, 2022), http://ti- nyurl.com/4yac2vmz.
97 Donald J. Trump (@realDonaldTrump), Truth Social (Jan. 10, 2024, 5:19 PM), http://tinyurl.com/bde3aw6r.
98 Erica Orden, Trump Lashes Out at Judge in Closing Argu- ments of Civil Fraud Trial, Politico (Jan. 11, 2024), http://ti- nyurl.com/467p6rcr.
99 Donald J. Trump (@realDonaldTrump), Truth Social (Dec. 24, 2023, 5:32 PM), http://tinyurl.com/5bptjwef.
100 Luke Barr, Special Counsel Jack Smith Targeted with Swat- ting Call in Late December: Sources, ABC News (Jan. 9, 2024),http://tinyurl.com/mu4j9u9.
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her biographical page on the Maine Secretary of State website. Later that day, her home was swatted.101
These events are made more troubling by state- ments from the former President indicating a willing- ness to undermine the rule of law directly if he regains power, such as his Veterans Day pledge to “root out the communists, Marxists, fascists, and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections,” and his intimations that former Chairman Milley de- serves to be executed.102
IV.
continues to damage institutions key to U.S. democracy due to Trump’s choices to propagate the belief that American elections are intentionally being manipulated and to
101 Steffi Feldman, Maine Secretary of State Says Home Was “Swatted” after Removing Trump from Presidential Ballot, Tag24 (Dec. 31, 2023), http://tinyurl.com/2kjb84ts.
Trump’s willingness to continue stoking violence
bodes ill for America’s future. In countries such as
Venezuela, Hungary, and Nicaragua, leaders willing
to circumvent democracy who are forced from power and return were much more dangerous the second
time.
U.S. democracy is being corroded by the
normalization of political violence.
The damage done to U.S. democracy from Trump’s
actions on and in the weeks prior to January 6 did not
end that day. The Pandora’s box he opened
102 Jonathan Lehrfeld, Milley Says He’ll Ensure Family Safety af- ter Trump’s Execution Remark, MilitaryTimes (Sept. 28, 2023),http://tinyurl.com/ytbvnadz; Donald J. Trump, Former President Trump Campaigns in Claremont, New Hampshire 1:47:34 –1:47:48, CSPAN (Nov. 11, 2023), http://tinyurl.com/43csjkt2.
26
convince his followers that threats and intimidation are a normal part of U.S. political discourse.
A. Our electoral administration is buckling under threats.
The officials who administrate our elections were almost unknown to the public prior to the 2020 elec- tion; threats against them were so uncommon that no one bothered to record them. But Trump’s claims that the election was being – or had been – stolen have made such threats so common that in 2021, the De- partment of Justice created a special unit to address them. To date, the unit has received over 1,000 re- ported threats, 11% of which they consider prosecuta- ble “true threats.”103 Threats peaked during the 2022 election, and sixty percent of the threats were made against election officials in the “battleground” states of Pennsylvania, Georgia, Michigan, Wisconsin, and Arizona.104 A 2022 survey by the Brennan Center sug- gests this number is an undercount: one in six election officials claim to have been threatened, half of them in person rather than simply online or by phone, but the majority had not been reported to law enforce- ment.105
103 Peter Eisler et al., Anatomy of a Death Threat, Reuters (Dec. 30, 2021), http://tinyurl.com/yeybed29; Press Release, U.S. Dep’t of Justice, Readout of Election Threats Task Force Briefing with Election Officials and Workers (Aug. 1, 2022), http://ti- nyurl.com/5n7hb8m4.
104 Joel Day et al., Threats and Harassment Against Local Offi- cials Dataset 20, Bridging Divides Initiative & ADL (Oct 20, 2022), http://tinyurl.com/4dhbhtys.
105 Brennan Ctr. For J., Local Election Officials Survey 6-7 (Mar. 2022), http://tinyurl.com/2s46fz93.
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These threats have led to an exodus that may af- fect the future quality of US elections. One study found that in 11 Western states, nearly 40% of chief election officials have left their positions since 2020.106While some turnover occurs after every election, this level is astronomical. In Arizona, which faced particu- lar accusations of fraud, 80% of counties have a new chief local election official since 2020, and 98% of res- idents will have their elections run by someone new to the job since 2020.107 Nearly one in three election workers knows of a colleague who has left because of fears for their safety, intimidation, or increased threats.108 The executive director of the National As- sociation of State Election Directors testified to the Senate Judiciary Committee that
America’s elections are extraordinarily decentral- ized and rely on workers to master local information across 13,000 jurisdictions.110 The work involves cy- bersecurity and computer savvy to correctly handle computerized ballots and hacking threats. The
106 Michael Beckel et al., Issue One, The High Cost of Turnover 2 (Sept. 2023), http://tinyurl.com/4afu2y82.
107 Id. at 4.
108 Brennan Ctr. For J., Local Election Officials Survey, supra n.
105, at 3.
109 Alexa Corse, Election Officials Plead for More Protection from Threats, Harassment, Wall St. J. (Aug. 3, 2022), http://ti- nyurl.com/yc634cz3.
110 Robert A. Pastor, The United States Administration of Elec- tions: Decentralized, Pre-modern, and Contented, Ace Project (2014), http://tinyurl.com/bdenw7p9.
for the worst. Until recently, this was not a field you
“We are all braced
went into thinking it could cost you your life.”109
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median election official has served in her role for 12 years – in the largest districts, most have served 15 to 20 years.111 In the 161 counties in the West which lost chief election officials, the average experience dropped from 8 years to 1.112 As Trump continues to spread fears of fraud, and as threats from his followers cause professionals to quit, new hires will be challenged to quickly master the role. Elections are likely to face more human errors in an environment of partisan re- crimination, which will further erode trust in our sys- tem.
B.
Rising threats of violence are af-
fecting defenders of democratic in-
stitutions regardless of political af-
filiation and may reduce the will-
ingness of some Americans to en-
gage in public service.
Compared to other Republicans and Democrats,
Trump supporters who believe the 2020 election was fraudulent are more likely to justify political vio- lence.113 They also admit to a greater willingness to threaten or intimidate a person to achieve a political
111 Paul Gronke et al., Democracy Fund, Understanding the Ca- reer Journeys of Today’s Local Election Officials and Anticipat- ing Tomorrow’s Potential Shortage (Apr. 20, 2021), http://ti- nyurl.com/56ah5y6z.
112 Beckel et al, supra n. 106.
113 Garen J. Wintemute et al., MAGA Republicans’ views of Amer- ican democracy and society and support for political violence in the United States: Findings from a nationwide population-repre- sentative survey, PLoS One 15-19 (2024).
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objective.114 There are also signs that the left is grow- ing more willing to engage in political violence, sug- gesting that the country could witness the kind of tit for tat political reprisal that can be devastating for de- mocracies.115
In 2023, a non-election year when the American
people tend to be less politically engaged, nearly 1 in 5 local elected politicians had experienced a threat in the previous 3 months,116 with Republicans and Dem- ocrats reporting equal numbers of threats.117 The problem is even more severe in large cities.118 In San Diego, 75% of county officials reported being threat- ened or harassed.119 Moderates received the greatest number of threats (which often come from more ex- treme co-partisans, particularly for Republicans). More than half of those who have been threatened
have considered leaving public office as a result.120
Threats may disproportionately dissuade particu-
lar groups from public service.
For instance, of the in-
dividuals Trump’s followers harassed, parents of
young children such as Al Schmidt of Philadelphia, as 114 Id.
115 See id. at 21 (willingness to use violence against those who don’t share political beliefs).
116 CivicPulse, Threats and Harassment in Local Government: In- itial Benchmarking Report, 4 (Sept. 25, 2023), available athttp://tinyurl.com/4dvw6zsh.
117 Id. at 9. 118 Id. at 14.
119
http://tinyurl.com/5cef5kz8. 120 Id. at 5.
Rachel Locke, “How Scared Are You?”, Univ. San Diego, at 11
(2023),
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well as Representatives Adam Kinzinger and Anthony Gonzalez (two of ten Republicans who voted to im- peach Trump for his role in January 6), were particu- larly likely to decide not to run for reelection, citing the threats against their children as important to that decision.121 Women and minorities consistently re- ceive more threats than men and may also be more moved to act on them. Minority officials report double the concern about a future attack compared to other local officeholders.122 And in San Diego County, nearly twice as many women as men were considering leaving their jobs due to threats.123
Yet nobody is immune. When Stephen Richer,
Maricopa County’s Recorder, tried to explain that Ar- izona’s election had been carried out fairly, fellow Re- publicans screamed, grabbed him, and banged on his windshield as he tried to leave the parking lot.124 While his office was provided with an armed police presence, multiple staff members quit immediately
121 ABC 7 Chi., US Rep. Kinzinger Reveals Over a Dozen Threat- ening Messages Sent To Republican Amid Jan. 6 Hearings (July 6, 2022), http://tinyurl.com/bdpnbxre; Henry J. Gomez, Threats Linger Over Members of Congress As a Trump Adversary Calls It Quits, NBC News (Sept. 23, 2021, 2:16 PM), http://ti- nyurl.com/427xws2w.
122 CivicPulse & Bridging Divides Initiative, Local Government Threats and Harassment Benchmarking Report 13 (Nov. 30, 2023), http://tinyurl.com/ybrtpwh3.
123 Locke, supra n. 119, at 5.
124 Zach Beauchamp, How Death Threats Get Republicans to Fall in Line Behind Trump, Vox (Jan. 2, 2024, 7:00 AM), http://ti- nyurl.com/mw9aavak.
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As Republican Senator Mitt Romney explained, “it takes only one really dis-
turbed person”.127
V. Courts must be guardians of democracy.
A.
Democracies do not always die after violent insur- rections. The attack on Brazil’s institutions of govern- ment on January 8, 2022 looked similar to the U.S. events of January 6, 2021. Jair Bolsonaro spent months claiming that the election would be marred by rigging.128 When he lost his election, he refused to con- cede.129 Tens of thousands of his supporters protested for weeks, culminating in their ransacking the
125 Id. 126 Id. 127 Id.
128 Economist, Might Jair Bolsonaro Try to Steal Brazil’s Elec- tion? (July 14, 2022), http://tinyurl.com/bdfzv4wt; Diane Jeantet & Carla Bridi, EXPLAINER: Bolsonaro Knocks Brazil’s Voting System, AP News (Sept. 6, 2022, 1:45 PM), http://ti- nyurl.com/mb7js8x5.
129 Ricardo Brito et al., Brazil’s Bolsonaro Does Not Concede to Lula, But Authorizes Transition, Reuters (Nov. 1, 2022, 9:33 PM), http://tinyurl.com/3rym88dk.
after such confrontations.125 He has testified in three federal cases against people who threatened to kill him.126 This may be why so many Republicans who have been outspoken in their support for the rule of
law have left public service.
Courts internationally have played
an essential role in restoring the
guardrails of their democracies.
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Congress, Supreme Court, and Presidential Palace.130 But many Brazilians remembered and drew parallels with the 1964 coup that had snuffed their country’s freedom, a freedom that was only restored in 1985.131 The Supreme Court barred Jair Bolsonaro from run- ning for future office for eight years, and democracy has steadied itself.132
As in Brazil, it has fallen to the courts to uphold the guardrails of democracy in other countries where leaders threatened the constitutional order. In June of 2023, Mexico’s Supreme Court stopped President Andrés Manuel López Obrador from enacting an elec- toral overhaul that would have destroyed the coun-try’s independent election commission.133 In Colom- bia, the Supreme Court prevented former President Álvaro Uribe from running for an unconstitutional third term in office.134 In Israel, the Supreme Court
130 Adriano Machado, Bolsonaro Backers Ransack Brazil Presi- dential Palace, Congress, Supreme Court, Reuters (Jan. 8, 2023, 11:17 PM), http://tinyurl.com/4vafnpe8.
131 Flavia Chacon, On the Eve of Brazil's Military Coup Anniver- sary, Democracy Faces Historical Challenges (Lucas Peresin trans., Mar. 31, 2023, 2:31 PM), http://tinyurl.com/yyz8sx2v.
132 Economist, Jair Bolsonaro Is Barred from Office For Eight Years (June 30, 2023), http://tinyurl.com/2ssyakay; Oliver Stuen- kel, Brazil’s political risk plummets amid January 8 reaction, The Brazilian Report (Aug. 15, 2023, 9:33 AM), http://ti- nyurl.com/bdf72swm.
133 Diego A. Zambrano et al., How Latin America's Judges Are Defending Democracy, 35 J. Democracy, no. 1, 118, 118 (2024)http://tinyurl.com/yc2b6j83.
134 Tom Ginsburg, Democratic Backsliding and the Rule of Law, 44 Ohio N. Univ. L. Rev. 351, 359 (2018), http://ti- nyurl.com/yd5jwrpn.
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rejected the first part of a judicial overhaul package that would have provided the Prime Minister with outsized powers, in a country with no constitution and no separately elected legislature to check executive overreach.135 Courts have been similarly essential to returning slipping democracies onto steadier demo- cratic ground in Italy, South Korea, Argentina, and other countries.136
This brief is not submitted lightly. There are grave issues to consider in removing a presidential candidate from deliberation by the voters. Taking a popular candidate out of consideration can breed dis- trust in the system. And yet, this concern is equally valid if the court fails to act: distrust in the system is precisely what has been fueled by the insurrection and claims of fraud perpetuated by the former President.
In countries where courts have avoided their role as an equal, independent branch with the power to override Executives on issues of constitutionality, de- mocracy continues to slip away. So does the independ- ence of the courts themselves.137 In India, where a re- spected and independent court once presided, the ju- diciary’s refusal to safeguard the constitution has al- lowed massive democratic erosion and has
135 Josef Federman & Melanie Lidman, Israel’s Supreme Court Overturns a Key Component of Netanyahu’s Polarizing Judicial Overhaul, AP News (Jan. 1, 2024, 2:54 PM), http://ti- nyurl.com/yk6dwsth.
136 Rachel Kleinfeld & David Solimini, What Comes Next? Les- sons for the Recovery of Liberal Democracy, Democracy Fund 4 (Oct. 2018), http://tinyurl.com/2p8fbfdm; Ginsburg, supra n. 134, at 353.
137 Ginsburg, supra n. 134, at 367-368.
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undermined judicial independence.138 Previously the
world’s largest democracy, India was downgraded by Freedom House in 2020 to only “partly free”.139
B. Our Founders recognized the grav- ity of the threat to the Republic, and contemporary custodians of our Republic should as well.
The ancient democratic tradition studied so closely by our Founding Fathers understood the dem- agogue to be the greatest threat to popular sover- eignty. In the first Federalist paper, Alexander Ham- ilton recognized the threat “of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obse- quious court to the people; commencing demagogues and ending tyrants.”140
As Aristotle wrote: “The demagogues make the decrees of the people override the laws . . . . Such a de- mocracy is fairly open to the objection that it is not a constitution at all; for where the laws have no author- ity, there is no constitution.”141
Following the bloodiest war our country has ever fought, our Constitution was amended so that no
138 Tarunabh Khaitan, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India, 14 L. & Ethics Hum. Rights, no. 1, http://tinyurl.com/2p8hm6vu.
139 Sarah Repucci, Freedom in the World 2020: A Leaderless Struggle for Democracy, Freedom House (last accessed Jan. 25, 2024), http://tinyurl.com/22dah2cn.
140 The Federalist No. 1 (Alexander Hamilton).
141 Aristotle, The Basic Works of Aristotle 1213 (Richard McKeon ed., trans., Random House New York, 1941).
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person shall hold any office if he had previously taken an oath as an officer of the United States to support the Constitution of the United States and subsequently engaged in insurrection against the same. In doing so, American leaders with firsthand experience of the fragility of democracy tried to give our country and our courts tools to avoid re-living their experi- ence.
The American people rely on the United States Supreme Court to serve as the guardian of the Consti- tution. It is needed to uphold this role today.
Respectfully submitted.
January 31, 2024
1 comment:
What will happen to the Trump dumb bums, crumb bums, and scum bums next time they try to overturn a free and fair election on behalf of the loser? They need new terrorism and sedition statutes.
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