“You shall appoint for yourselves”— The moral case against Bush v Gore 2020
We have arrived at at point of moral decision. As a citizen and as a rabbi who takes the principles of democracy very seriously, I have joined many others over the past months in being deeply concerned about the threats to our democratic ideals presented by this election. Much of the discussion centered around unprecedented threats, such as the risk that there will not be a peaceful transfer of power if President Trump loses the election. That scenario and other previously unheard of situations may still begin to unfold; certainly the President declaring victory when he is nowhere near winning is a dangerous precedent in and of itself. However, from the beginning — and now more than ever — the possibility that most keeps me up at night does not involve unprecedented scenarios. Rather, I am worried that history will repeat itself. In 2000, the Supreme Court handed the Presidency to George W. Bush despite his having lost the popular vote and despite the very real possibility that he also would have lost the Electoral College if all the votes had been accurately counted. In other words, my greatest fear is not that the election will be stolen illegally; what I fear most that it will be stolen legally. All of us who want to live in a true democracy must prepare for the possibility that a similar situation will replay itself, this time centered on legal technicalities regarding mail-in voting, and to act to prevent it from happening this year or ever again.
Where I live in Washington State, the rules and norms around mail-in voting are well established, but in states where it is not the default, the lack of long-established rules opens the door for thousands if not millions of votes to be thrown out, potentially handing the Presidency to a losing candidate. In the months leading up to the election, President Trump’s actions and rhetoric surrounding mail-in voting, coupled with worrisome signs from the Supreme Court, have pointed in this very ominous direction. And indeed, with the polls barely closed, the president reiterated his threat to throw the election to the Supreme Court. The case of Pennsylvania — where ballots sent on or before Election Day but arriving after it are already being “segregated” (an ominous term) precisely because the Supreme Court may rule them uncountable — is particularly troubling in the regard. It is impossible to predict the future, but we cannot ignore the distinct possibility that a Supreme Court consisting of five members nominated by presidents who lost the popular vote, including several confirmed by Senate majorities that received millions of fewer votes than the minority, would rule to decide the election without counting the votes of many thousands of Americans. Bush v Gore may replay itself in 2020.
We all believe that every citizen has the right to vote, and that every vote should count. It is fundamental to our democracy, or should be. Yet, it is not yet true. As a Jew, I believe that all humans are created in the image of God, each one no more and no less worthy than any other. And as a rabbi I teach and preach from a Torah that was already, thousands of years ago, deeply mistrustful of tyrants — and indeed rulers of any kind — and that prescribed in its proto-democratic way that “You shall appoint for yourselves magistrates and officials […], and they shall govern the people with due justice.” (Deut. 16:18) That same Torah was uniquely obsessed with counting people, over and over again. Perhaps there is a lesson for us in these seemingly dry and boring censuses — everyone should be counted. We the people must be allowed to appoint our own officials by means of votes that are counted fairly and equally, and their governance must actually conform to due justice.
Now is the time ask ourselves what we are willing to do to prevent votes from going uncounted, to stop the Supreme Court from deciding the election for us again, to prevent the actual loser of both the popular vote and the Electoral College from being President for the next four years. The legal process may fail us as it did in 2000. Will we join with others in massive non-violent civil protest, strikes and boycotts, and mobilization of all sectors of civil society — as the thinking currently goes among those planning to prevent a take-over recommend — demanding that all our votes count, and that our election conforms to true democracy and justice? We will have to do this in a way that was both powerful enough to work and disciplined enough to avoid even seeming like we ourselves are making a grab for power.
And even if the election plays out another way — a result that happens to conform to the will of the people — what will we do to prevent the risk of this ever happening again? The problems built into our system would remain a constant threat, a game of Russian roulette we would continue to play with our country every four years until the bullet is removed. A lot would need to be changed to remove this risk — barriers to voting removed, voter suppression outlawed, the Electoral College banished, an affirmative right to vote and have one’s vote counted enshrined in the Constitution, disparate state election regulations standardized and rationalized to maximize participation and ensure accurate and full counts that cannot be prevented or changed by any court or official, and more. We the people won’t have many natural allies in the halls of power, no matter who wins, since those elected by a system rarely see the need to change that same system. What could we do to change our 18th-century system to ensure that in four years and every election thereafter, we go into it not under a cloud of fear, but with absolute certainty that the process will lead to the people’s choice being chosen, that the will of the people will prevail? The time to start answering these questions is now.
