By Dr. Ken Broda Bahm:
This past week saw some events most of us thought we would never see: A violent mob rampaging through the U.S. Capitol Building, shutting down a joint session of Congress in order to stop the Constitutional procedure of counting the presidential vote. In the coming weeks, of course, we are at risk of seeing more of the same, up to and past President-Elect Biden’s inauguration. All of it can be read as an attempt to solve a dispute by force, rather than by legal means. That is the choice: Without the role of evidence, and without the rule of law, what you have is the mob. We are still shocked by the pictures and the video clips of that breakdown on January 6. But there is also the fact that Congress returned, and finished their job, before the next morning. There are also stories now of moments of humanity and courage, such as the image of Congressman Jason Crow aiding another representative who was getting through a panic attack while locked in the House chambers with domestic terrorists at the doors.
Many lawyers have been involved in defending free and fair elections, and in ensuring that people have access to the vote, and every vote counts. That is essential. But for everyone else working in the field of law, you can and should take pride in being involved more broadly in a system that resolves disagreements with reason and peace. This is a point that judges should be making, and many do make, as they introduce citizens to the importance of jury duty. With the events of this election cycle, the message has fresh urgency. It is also a reminder lawyers should be giving themselves in the morning mirror. In my view, it comes down to three principles that define the uniqueness and the advantages of the law over its alternatives.
Proof
In theory, the factor precipitating the riots boiled down to some apparently sincere beliefs that the recent election had been stolen from Donald Trump and his supporters. But the closer you look at the claims of fraud, the more it seems like a case of high-level repetition, rather than support. When proof is attempted, it comes in the form of tropes like “everyone knows…,” non-sequitur arguments like “Biden rallies were smaller,” misinterpreted videos, or vague affidavits about possible, rather than actual, vote rigging. More often, though, the “fraud” part of the election is treated as an article of faith, rather than as something that needs to be demonstrated. One candidate made a commitment in advance that “If I lose, it is fraud” and then repeated and amplified that story into existence. The law depends on stories as well, but thankfully these stories need to be grounded in evidence and proof and not just volume and persistence.
Process
The courts agree. In venue after venue — the count now seems to be at least 42 — judges have found election challenges to be unconvincing, based on process and standing, and in some cases on the merits, as well. Before the votes arrived at Capitol Hill, all 50 states had certified their election results, and that was after exhausting all reasonable challenges, including several hand recounts in the close swing state of Georgia. In a last act of electoral challenge, a dozen Senators and Republican lawmakers voted against counting all of the certified electoral votes. That is the process that Congress was engaged in as the mob stormed the Capitol Building and stopped the process. While the law isn’t perfect (e.g., many would reasonably oppose the idea of a partisan federal challenge on votes once states have investigated and certified the totals), process is better than chaos, and the law is dedicated to that principle.
Persuasion
Resolving disputes through the law, however, is not just a matter of applying the rules to the facts. There is a third ingredient: persuasion. You need to convince a neutral decision-maker that the better facts and law are on your side.
It is certain that times like these can cause people to despair over the possibility of persuasion. For example, the condemnation of the mob overtaking the Capitol was broad, but it was quite far from being universal. For example, a Yougov poll shows that a plurality of Republicans, 45 percent, either “strongly” or “somewhat” support the storming of the U.S. Capitol Building. In addition, other polling shows that the percentage who feel justified in using violence to advance political goals has risen dramatically on both sides of the political spectrum.
So, it is worth asking, “Can we still talk to each other?” Are there common premises that persuaders can appeal to when advocating on points of deep controversy?
The answer to that will likely be developed in coming months and years. But the message for those who love the law is this: keep trying. Be proud that you are part of a profession that is dedicated to the continued effort.
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