The Washington PostDemocracy Dies in Darkness

Opinion Our democracy may depend on judges

Ken Bennett, the former Republican Arizona secretary of state, in Phoenix during setup of a 2020 election audit on April 22. (Ross D. Franklin/AP)

Judges in more than 60 cases dismissed disgraced former president Donald Trump’s attempts to overthrow an election he lost by a significant margin. They swiftly and decisively recognized that there was never any evidence to support the “big lie” that the election was stolen.

Now, judges are systematically dealing with the aftermath of the Jan. 6 attack. They are holding lawyers accountable for making spurious claims that helped ignite the armed insurrection. Michigan District Judge Linda V. Parker recently delivered a tough lashing and tough cross-examination on baseless filings from Trump’s lawyers. New York judges similarly dissected the false claims from Rudolph W. Giuliani, another Trump attorney, and decided to suspend his law license. And a judge in Colorado is looking at penalizing Trump’s counsel.

The Post reports:

A federal judge in Colorado has disciplined two lawyers who filed a lawsuit challenging the 2020 election late last year, finding that the case was “frivolous,” “not warranted by existing law” and filed “in bad faith.”
In a scathing 68-page opinion, Magistrate Judge N. Reid Neureiter found that the lawyers made little effort to corroborate information they had included in the suit, which argued there had been a vast national conspiracy to steal the election from former president Donald Trump.

The magistrate denounced the suit, which he called “one enormous conspiracy theory.” He wrote: “Albeit disorganized and fantastical, the Complaint’s allegations are extraordinarily serious and, if accepted as true by large numbers of people, are the stuff of which violent insurrections are made.”

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Every state bar association and every judge who heard one of the baseless lawsuits propounding the "big lie" should be taking action to sanction lawyers who willfully contributed to the first violent transfer of power since the country’s founding. Their action is critical, for it serves not only to hold this batch of miscreants accountable but to put lawyers who might take similar cases in the future on notice. If you try to upend our democracy with lies and phony conspiracy theories, your livelihood as a lawyer will be at risk.

In other contexts, we see judges denounce Jan. 6 defendants for their role in a violent uprising. In Michigan, U.S. District Judge Amy Berman Jackson read Jan. 6 defendant Karl Dreschthe riot act before sentencing him. “Your vote doesn’t count more than anyone else’s. You don’t get to cancel them out, call for a war, because you don’t like the results of an election,” she said. “You call yourself a patriot? That’s not patriotism. Patriotism is loyalty to country, loyalty to the Constitution, not loyalty to a single head of state. That’s the tyranny we rejected on July 4, 1776.”

Last month, U.S. District Judge Randolph Moss sentenced Paul Hodgkins for a felony for his participation in the insurrection. Politico reported:

As he imposed the sentence, Moss said Hodgkins sent a profound and dangerous message by raising the Trump flag by the Senate dais at the hour members of Congress were supposed to be confirming President Joe Biden’s victory
“The symbolism of that act is unmistakable,” the judge said. “In that act, he captured the threat to democracy that we all witnessed that day. … People have to know that assaulting the United States Capitol and impeding the democratic process, even if you don’t come bearing arms, will have consequences.”

In Arizona, a judge has played another critical role in upholding the rule of law and democratic elections, ordering the state’s Republican-led Senate on Monday to produce records from its phony audit of the 2020 election in Maricopa County. The suit, brought by the progressive group American Oversight, demands that state senators turn over documents from the amateur auditors they hired to undermine that state’s vote count. Maricopa County Superior Court Judge Michael Kemp ruled, “Nothing in the statute absolves Senate defendants’ responsibilities to keep and maintain records for authorities supported by public monies by merely retaining a third-party contractor who in turns hires subvendors.”

While this is a state law, federal law also requires officials to maintain custody of election documents. The Justice Department recently issued a warning that “the obligation to retain and preserve election records remains intact regardless of who has physical possession of those records.” The guidance continued: “Jurisdictions must ensure that if they conduct post-election ballot examinations, they also continue to comply with the retention and preservation requirements of Section 301. There are federal criminal penalties attached to willful failures to comply with the retention and preservation requirements of the Civil Rights Act.” In other words, federal courts might also have the opportunity to consider this case.

In short, judges around the country are holding the line against MAGA forces. While it is right to celebrate the narrow group of election officials around the country and Justice Department lawyers who refused to try to reverse the election, we should not neglect the importance of independent, capable judges. They rebuffed every attempt to undermine the election. Now, in one criminal proceeding after another, they are denouncing the "big lie" and the mob’s use of violence to overthrow a free and fair election. And they are keeping a close eye on phony audits.

There are several lessons to be learned. First, at the federal level and in the states (where judges are often subject to elections), voters must ask judges about their commitment to upholding the rule of law and peaceful transfer of power. Second, continuing education for judges must include instruction on preserving democracy. And finally, while Republicans might delude themselves into thinking they can take over election counts from nonpartisan officials and simply change the vote count, they should be aware that they will have to face state and federal judges, who may be the last line of defense against violent authoritarianism.

Most states have stiff laws against vote tampering and falsification. Foes of democratic elections should be forewarned that courts are unlikely to shed their oaths and become accomplices in the downfall of democracy.