"Is the United States of America a Democracy... or Is It Not?"

 

On Thursday, in The New Republic, conservative judge J. Michael Luttig published a dire warning to the Republican Party…and to all Americans. In the piece, Luttig outlined how Republicans could refuse to seat elected Democrats in January after a Democratic victory in the 2026 midterm elections of November. “The coming crisis,” the piece says, would be “The Final Battle for America’s Democracy.”

Luttig spelled out that Trump is fighting a war against America’s democracy. While the refusal of Vice President Mike Pence to assist his power grab made it fail in January 2021, Luttig notes, today Trump and his Republican congressional allies are more determined than ever to take over the country.

Luttig focuses on the ability of House speaker Mike Johnson (R-LA) to prevent the recognition of duly elected Democratic representatives on January 3. Johnson has the power, Luttig says, to remove the current House clerk, Kevin McCumber, and replace him temporarily with a MAGA loyalist who will refuse to list Democrats on the roll of those elected to the 120th Congress.

In this scenario, once Democrats are eliminated, they will have to get a federal court to order the temporary clerk to list their names. If a court does so, another crisis point will arrive if the clerk simply refuses to obey the order. Then it’s possible the courts will stay out of the fight until the 120th Congress formally convenes and the Republicans vote not to seat the Democrats. That vote would be reviewable by the courts, including the Supreme Court.

But that review would take weeks, if not months, paralyzing the United States and leaving the country “helplessly vulnerable to all the world’s evil, as it would have been in January 2021 had Mike Pence not thwarted Donald Trump’s plan to overturn the 2020 presidential election.” And at that point, how would the current Supreme Court answer the question: 

“Is the United States of America a democracy, in which ‘We the People’ elect our representatives to the Congress and to the presidency, or is it not?”

As if to illustrate Luttig’s warning, House speaker Johnson told attendees at Trump’s convention in Dallas on Thursday: “We cannot and will not allow them to take the majority in the Congress. We’re not gonna do it.”

Trump’s attempt to use the United States Postal Service to screen mail-in voting has recently had a test run. Yesterday, Jim Saksa of Democracy Docket picked up a story from Jeff Berlew of the Tallahassee Democrat to report that the USPS rejected mailed ballots from Leon County, in Florida, because the words “return service requested” were only 0.236 inches from the election office’s return address. They were supposed to be a full quarter inch apart. So, the delivery of that mail-in ballots came down to a federal complaint about a spacing issue of 0.014 of an inch. 

“It’s ridiculous,” Supervisor of Elections Mark Earley told Berlew. But, as Saksa notes, the rejection of ballots for such a petty flaw shows what will likely happen if the Supreme Court lifts the injunction blocking the postal service from implementing the new rules it has put in place since Trump ordered such interference in a March executive order.

On Thursday, September 10, Nick Corasaniti of the New York Times reported that the Department of Justice (DOJ) under Trump has sent threatening letters to at least thirty top election officials in the states, warning that those officials “are currently under investigation” and are subject to “ongoing litigation,” and so must not destroy any records relating to the 2024 election. As Corasaniti notes, the administration has sued 30 states for their voter lists and has lost 23 of the cases and won none. Trump has claimed to be the victim of voter fraud since the 2016 primaries but has never produced any proof of his claims.

In July, Harmeet Dhillon, who heads the civil rights division in the DOJ, threatened state election officials with criminal prosecution if any noncitizens cast a ballot in their state (although it is already illegal for noncitizens to vote), and Secretary of Homeland Security Markwayne Mullin threatened election officials with criminal prosecution if they did not put Trump’s election changes into effect.

Election officials already follow the laws about retaining documents, so the letters seem to be about threatening them. Nevada secretary of state Francisco Aguilar, a Democrat, told Corasaniti: “It’s the constant ‘flood the zone’ of harassment and intimidation and threats of legal action hoping we’d fold at some point.” But, he added, “We’re going to continue to follow the law and do what’s in the best interest of our voters.”

And what of the MAGA Republicans Trump would like to see in Congress?

Liz Goodwin of the Washington Post reported yesterday that 25-year-old Stephen Woytek, a top campaign staffer for Senator Jon Husted (R-OH), has recently cultivated a public playlist of songs celebrating the former country of Rhodesia, in which a white minority rule over a Black majority, captioning it “homesick for a place that no longer exists.” Rhodesia is a rallying cry for white supremacists who deplore the change that created Zimbabwe. Woytek also appears to be a historical reenactor who appears to have both worn Nazi uniforms and used a photo of Nazi soldiers as his Facebook profile picture.

Ohio governor Mike DeWine appointed Husted to the Senate to replace J.D. Vance after Vance was elected to the vice presidency, and Husted is now locked in a battle for that seat with former senator Sherrod Brown, a Democrat known for his defense of labor. A statement for Husted said that while Woytek “denies negative intent,” the campaign was parting ways with him.

As Goodwin notes, growing numbers of younger Republicans have been expressing support for white nationalism and the Nazis.

Indeed, in his warning, Luttig did not single out Democrats to protect democracy; as he noted in a piece on his Substack in August, plenty of people are already fighting. He called out Republicans.

“There was a time not long ago when virtually every member of Congress could be expected to commit to the peaceful transfer of congressional power in advance of an election,” Luttig wrote. But now, “[i]n a damning indictment of the president and today’s congressional Republicans, it would be hard to find even one congressional Republican with the integrity, sense of duty to country, honor, and courage to put America above the Republican Party, let alone above Donald Trump.”

He urged Republicans “to decide that they are not going to betray their oaths and their country one last time for Donald Trump,” and to make it clear to Trump and Johnson that they will not participate in any unconstitutional plan to deny Democrats seats in the new Congress.

He warned them that should Republicans go along with such machinations and the Supreme Court overrule them, the Republican Party “would finally meet the fate to which it has been destined since January 6, 2021, and cement its place in history as the most corrupt political party ever to emerge in the United States of America for its second attempt in six years to defy the will of the American people on Election Day.”

“The writing is already on the wall, Republicans,” the conservative jurist wrote. “The Republican Party in particular must finally lose the chains of its political and moral enslavement to Donald Trump and separate itself from the MAGA political party cult.”

Today, in Ireland, where he traveled for the Irish Open at his golf club in Doonbeg, Trump told reporters: “We had a rigged election. As you know, it was totally rigged. Because I won three times. I didn’t win twice. I won three times.”

—Heather Cox Richardson