Almost a year ago, I wrote about the challenges facing the legal commentariat. The “timelines and richness” of their contributions to the democracy debate is indisputable. The apparent risk is that the arguments made map “too neatly on the authors’ political preferences.”  The commentators “do best when resisting the powerful pressures of polarization and ideology that are among the very sources of disquiet in American democracy.”

Now, with the midterms only weeks away, a new challenge for that community arises in the form of what some have referred to as “fearmongering” and “electoral-process porn.” This style of writing is stridently alarmist about what the current government might successfully—not just try to do but successfully do—to subvert the electoral process this fall. Certainly, the threshold question of what qualifies as “fearmongering” is complicated. Trump’s rhetorical and legal assault on our voting systems warrants a healthy measure of concern, perhaps sometimes rising to a level of alarm. Putting before the public thoughtfully stated assessments of the threats and proposed responses is a service. The care with which it is done also matters. On one side of the challenge is informing the public; on the other is avoiding undue and damaging alarmism, which potentially drives voters from the polls and undermines their confidence in the legal institutions on which they depend for ultimate protection of their voting rights.

A recent case in point is former federal judge Michael Luttig’s New Republic article entitled “The Final Battle for America’s Democracy.” He worries that the decisive conflict may occur on or about January 3, if the current Republican majority in the House of Representatives adopts a scheme to prevent the seating of Democrats elected this November.  He is not alone in working through the potential for such a scenario. And, as a commentator on this and Trump Administration abuses of power, Luttig occupies an important role: a noted former jurist, both a Republican and a conservative, speaking out on these issues to fellow Republicans. But his recent warnings about the “final battle for America’s democracy” on January 3 warrant a few cautionary notes.

The Luttig New Republic version of this scenario is different from the one he advanced on Substack in August.  In the first version, Luttig suggested that Mike Johnson and the current Republican majority would act to block the seating of new members. But, as election law scholars like Derek Muller and Ned Foley pointed out, the House is not a continuous body: Republican control ends on January 3, which means that, if the Democrats win the House, the Republican Party is no longer, as of that date, the majority party. Their power as a minority to then seize majority control—to prevent the seating of members in the new Congress—would seem exceptionally hard to pull off, not that they might not try.

In the second version published in The New Republic, Luttig built the disaster scenarios around the actions of a temporary Clerk of the House who would do Speaker Johnson’s bidding in rigging the rolls of newly elected Democratic members eligible to vote for the new Speaker. By this move, the Republicans would alter the composition of the new Congress, unlawfully preserving the Republican majority until the courts could step in and restore constitutional order. While “weeks, if not months” passed before decisive judicial intervention, however, the United States would suffer a “paralyzing constitutional crisis, helplessly vulnerable to all the world’s evil.” China might move against Taiwan, Russia against Estonia.

For various reasons noted by other commentators, I do not rate these risks as particularly likely. But my focus here is not on the legal and other probabilities of these disaster scenarios, one of which predicts national and the other also international calamities. Two additional features of his presentation illustrate the challenges legal writers face as the vote draws nearer: the depiction of the courts, and the lure of politics.

On the courts

The Judge calls on and expects the courts to stop any January 3 electoral subversion. He applauds the federal courts for blocking “every one” of the unlawful Trump administration’s attempts “to rig the midterm elections.” Yet, he then suggests, in the same paragraph, that the federal courts will be “institutionally incapable of checking [Trump’s] final unlawful rampage” on January 3. Several paragraphs later, Luttig shifts course yet again and concludes that “whether the House constitutionally exercises its power not to seat members-elect will ultimately be determined by the federal courts and the Supreme Court.” And he emphasizes that the Supreme Court “will have the final word as to who will be seated in the 120th Congress of the United States.”

Judge Luttig does not intend for his audience to draw too much reassurance from this prospect of judicial intervention. To the contrary, he is not “overly sanguine about this Supreme Court.” He upbraids it for “betray[ing] the Constitution” when it refused (in what was a 9-0 decision) to decide that Trump could be removed from the 2024 ballot. He charges it with having “cynically authorized Trump’s lawlessness for the past two years” on the shadow docket. And he continues: “But surely by now this court must understand what it has wrought for the U.S. and the Constitution, and is aghast as we all are, even if it is not penitent.”

The message here is thoroughly mixed. What the public will extract from the mixture is not a high level of confidence that a Court with this alleged history of betraying the Constitution will rise, if called upon to do so, to the January 3 constitutional moment. It is not clear what purpose this broadside against the Court serves, except to shake confidence in the institutions critical in the defense against extreme anti-democratic measures like the January 3 scenario.

This article appeared shortly before the Court blocked the implementation, at least for this cycle, of a Postal Service rule, set into motion and supported by the administration, that would have severely hampered and destabilized mail voting throughout the United States. Luttig also did not note that, in this Term, the Court turned back another key administration challenge to mail voting. Contrary to a position Trump staked out by executive order and directed his attorney general to enforce, the Justices construed federal law to permit mail ballots postmarked by Election Day to be counted if election officials received them a specified number of days afterward. And Luttig makes no reference to the 2020 experience when the Court declined to intervene on behalf of an enraged Trump to rescue him from electoral defeat.

On politics

A second question about the Luttig approach is raised by his call for Republican House candidates to be challenged on the hustings to state their position on a House seating plot. He would like to see this be a campaign issue. Here he moves from legal to political advice. It is not clear how well this works. If Judge Luttig has overstated the legal threat, and if House Republicans cannot very likely do what he fears, then turning the scenario into a campaign issue simply elevates it.

Campaigns that take up the question of election subversion presumably should also address other, perhaps more probable, issues that a Trump refusal to accept the result would pose. Will candidates commit to calling for state officials to perform their ministerial duty in certifying election results? Will they refrain from endorsing, and perhaps even pushing back against, outlandish, false claims Trump might—almost surely will—make to cast doubt on the results? The consequences for public confidence in the process of campaigns dominated by these questions are unpredictable and hard to measure. Some will argue that it may stimulate voter turnout powered by defiance of these election subversion threats. It could also have the opposite effect, or different effects in different parts of the country, in different campaigns. More certain is the importance to voters of the meaning for their lives, across a range of day-to-day concerns, of the quality and integrity of the Trump government record.

Conclusion

State and local election officials are working long hours to conduct an election which the public may be confident will be fair and lawful. The legal commentariat has played, and will continue to play, an impressive role in informing the courts and the public about how the system works, about the relevant law and the legitimate legal conflicts that may arise—and about the ways in which the current president has launched a wholly unsupported and irresponsible assault on the integrity of this process. How this writing community goes about this task is more important than ever, as the voting, which has now begun, proceeds through Election Day.