Nye is the president and CEO of the Center for the Study of the Presidency and Congress and a former member of Congress from Virginia.
In the aftermath of his election defeat in 2020, President Donald Trump attempted to overturn an American presidential election, challenging our institutions to respond. Most notably, on Jan. 6, 2021, the president rallied an assembled crowd to march to the Capitol to halt the certification of the election, the final constitutional step in the electoral process. Members of the crowd dutifully marched to the Capitol, where hundreds of them assaulted police, broke into the building and disrupted the certification proceedings.
By attempting to overturn an election by any extra-judicial means — pressuring his vice president to stop the certification and inciting a mob into violent action — the president attempted to stop the peaceful transfer of power for the first time in American history. Yet he remains a popular, if controversial, political figure, polling about even with his major party opponent in the 2024 presidential race.
This raises an important question: Did the country decide whether attempting to overturn an election by force is acceptable in our democracy?
For a democracy to survive it must be able to confront serious challenges, including deciding whether efforts to subvert long-standing and foundational tenets of our democracy, like elections, are acceptable. The United States has upheld its constitutional democracy continuously, with periodic clarifications and improvements, for 235 years. That historic run has earned America the honor of being the world’s leading democracy.
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For a democracy to endure, however, two attributes are vital:
- Strong institutions capable of enforcing the rule of law: When a political figure takes actions that undermine the foundations of democracy, even when that figure occupies an elected office or enjoys popular support, constitutionally designated actors must react effectively in defense of the democracy.
- A political culture that prioritizes the continued existence of democracy over tribal interests: A critical mass of citizens must believe that accepting election outcomes is vital even when their political team loses. Even strongly devoted members of a political tribe, including candidates for office, must be willing to accept losing an election as long as they have a fair chance to compete and win future elections.
This analysis considers the following questions: Did the United States decide if it’s essentially permissible for a president to try to overturn an election with subterfuge and brute force? Are we able to judge from the country’s response to a president’s effort to overturn the 2020 election whether such actions are acceptable?
For the purposes of this analysis, we will define acceptable to mean that such behavior is normalized to the point that we might expect future politicians to try similar actions. Put another way, that such attempts represent a new norm. We will define unacceptable to mean that the president was held accountable for his actions such that future political figures would be deterred from attempting similar acts.
We would expect either strong institutional actors (Congress and/or the courts) or voters (through electoral behavior or public sentiment) to send a clear signal about whether presidential attempts to overturn an election by force are acceptable. This analysis will examine the reactions of Congress, the court, and the Voters to assess whether they resolved this question.
Congress
Congress is the institution with the most clearly defined prerogative and tools for responding to presidential malfeasance, such as an effort to overturn an election. Via the enumerated power of impeachment, the legislative body has the means and the responsibility to determine, through a constitutionally defined process, whether a president commits high crimes and misdemeanors damaging to the United States.
Congress took up this question shortly after the attack on the Capitol when the House of Representatives introduced one article of impeachment for “Incitement of Insurrection.” It passed with a majority of 232 votes (including 10 members of the president’s party) on Jan 13, 2021. The Senate took up the article on Jan. 25, conducting a trial in accordance with constitutional provisions. In the ensuing vote, a majority of 57 senators (including seven from the president’s party) voted in favor of the impeachment article.
Therefore, bipartisan majorities in both chambers went on the record with their votes that the president had incited insurrection. However, the super majority of 67 Senate votes needed to convict and remove a president from office was not reached. Several senators who voted against the impeachment measure cited technicalities connected to the timing of the trial, arguing that the president was no longer in office and therefore not subject to removal. With a formal finding of “not guilty” in the Senate vote and no effort made to impose a ban on the president from seeking future office, Congress concluded its official actions in the matter.
Assessment: Many lawmakers made comments critical of the president’s efforts to overturn the election, and bipartisan majorities determined that the acts amounted to insurrection, but Congress as an institution did not definitively resolve whether the president’s actions were acceptable. The president remained free to seek office again without any accountability.
Immediately subsequent to the impeachment vote, the Senate Minority Leader Mitch McConnell (R-Ky.), who had described the president’s actions as inciting insurrection but voted “no” on the article of impeachment, citing the timing of the trial, said that though accountability for the president’s actions had not been achieved by Congress, itmight yet be achieved through the judicial system. We will examine that institutional line of defense next.
The courts
Did the courts come any closer to deciding whether it is acceptable for a president to attempt to overturn an election through subterfuge and force? Though Congress failed to answer the question, a special House committee held a series of public hearings on the matter in June and July 2022, issuing a report in December 2022 thatrecommended criminal charges be brought by the Justice Department for the president’s attempt to overturn the election.
The attorney general appointed a special council in November 2022 to investigate the facts surrounding the election subversion attempt. The special council brought evidence before a grand jury, which issued four felony charges against the former president on Aug. 1, 2023. That case has yet to come to trial, largely connected to the question of whether the president had immunity from such charges connected to his office, a question taken up by the Supreme Court in 2024, an issue we will return to shortly.
There was a parallel question of eligibility to run for president raised by Colorado voters connected to the president’s participation in an insurrection, which is disqualifying under the 14th Amendment of the Constitution. The Colorado Supreme Court ruled in December 2023 that Trump was disqualified from appearing on the state’s presidential primary ballot due to his role in the insurrection. The case was appealed to the Supreme Court of the United States, which reversed the Colorado decision in March 2024 on the grounds that a state cannot enforce the 14th Amendment disqualification for insurrection against a candidate for federal office.
The Supreme Court did not rule on whether the former president had participated in insurrection, referencing instead the need for congressional action to enforce the relevant section of the 14th Amendment on a candidate for federal office. The court failed to note in the ruling that Congress had already considered the question of insurrection, voting by majorities in both houses to affirm that the president had indeed incited insurrection (the one article of impeachment considered in 2021).
The ruling left unanswered the question of the former president’s qualification for federal office under the insurrection ban, and therefore whether actions undertaken by a president to overturn an election by force were acceptable or not. It simply prevented a state from enforcing the 14th Amendment.
The U.S. Supreme Court also addressed the important question of presidential immunity for acts related to the indictments brought by the grand jury in the election subversion case. The court reviewed the determination made by aU.S. court of appeals in February 2024 that Trump did not have immunity as a former president for crimes committed while president related to his effort to overturn the election results. On July 1, 2024, the Supreme Court reversed the lower court’s ruling and said that a president does enjoy some immunity from criminal prosecution for actions taken while president.
Theambiguous ruling declared absolute immunity for the exercise of "core constitutional powers," and some immunity for acts within “official responsibilities,” while determining no immunity for acts that are unofficial, leaving the definition of those categories for lower courts to decide at a future date. The Supreme Court thus failed to resolve whether the acts for which the former president was indicted were immune from prosecution. One result of that ruling was a significant delay in the pending trial. The judge in the criminal trial has scheduled an initial hearing to evaluate potential immunity for the charges in effect, but as of this writing the timeline of those decisions and the trial itself are undetermined.
With another presidential election rapidly approaching and the likelihood that Trump could simply end the trial process if he is reelected, the court system has still not resolved the key questions related to the former president’s culpability. More than three years after the events of Jan. 6 the courts have thus failed to impose any accountability on the former president for his actions to overturn the election, or apply any deterrent effect on future politicians who might contemplate similar acts.
Assessment: The judicial system has not determined whether a president’s effort to overturn an election with extrajudicial schemes and force were acceptable. Courts do not appear to be moving decisively toward resolving this question in the near term, leaving it up to the voters to be the final arbiter of whether in the United States such actions are deemed acceptable.
Voters
Have voters clarified whether a president’s effort to overturn the 2020 election by force is acceptable? Voters are a powerful force in democracy, and their behavior and choices can decisively answer certain questions about policy, norms and what is acceptable within the American political culture. Politicians are extremely sensitive to the prospects of their election or reelection to public office, which is among the most powerful motivators of their behavior. Political acts deemed disqualifying by voters would not likely be repeated by other politicians, thereby creating accountability and effective deterrence. Can we then say that since 2021 voters have sent a clear signal through their voting behavior and other measurable public sentiments about whether a president’s attempts to overturn an election are acceptable?
Like many other political questions, voting behavior relevant to this question remains ambiguous. The clearest potential signal would be if voters simply abandoned the former president in his next run for office, assuming public polling provided evidence that the abandonment was due to negative sentiments about his attempted election subversions. Instead, Trump won the next election in which he competed, the Republicans’ 2024 presidential primary. Despite significant vote shares for his competitors in many states, Trump won the series of primary contests handily.
What does this tell us about voter sentiment? Winning election contests, beginning with primaries, is the metric most compelling to political candidates. Voters reach their voting decisions for an array of reasons, but those who cast votes for Trump in the 2024 primaries and awarded their party’s presidential nomination to him, whether intentionally or not, signaled that his actions after the 2020 election were acceptable, or at the very least not disqualifying given the context of the time and the particular choices available.
Winning a major party nomination certainly would not dissuade future politicians from pursuing similar extrajudicial actions to overthrow elections that they lose at the ballot box. There might still be a strong potential deterrent effect if Trump were to lose in the general election, if that loss could be directly connected to negative voter sentiment related to the election subversion attempt in 2020-21. Absent a result from the 2024 general election (pending), however, we cannot fully assess what message a majority of voters are sending about attempted election subversion.
What about other measures of public sentiment? Trump is currently polling about even with his major party competitor in national and swing state polling, making it difficult to gauge how voter sentiment on his election subversion efforts is impacting a close general election race. Public sentiment also sends some conflicting signals on this question.
For instance, public polling in January 2021, shortly after the assault on the Capitol, indicated that 97 percent of Americans had heard about the Capitol riot, and among those respondents 68 percent said they did not want Trump to continue to be a major national political figure (including 40 percent of those in or leaning toward his party). At that time, 75 percent of respondents said that Trump bore “a lot” or “some” responsibility for the Capitol riot (including 52 percent of those in or leaning toward his party). A follow-uppoll taken one year later showed about a 10 percent drop in those numbers in both categories, indicating either a change in voter sentiment or simply a fading of intensity in those opinions over time.
In aDecember 2023 poll taken before the presidential nominations were decided and about 11 months before the general election, 46 percent of Americans said Trump’s actions related to his role in the Jan. 6 attack should disqualify him from office (with an additional 17 percent saying it should cast doubts, but not be disqualifying). While nearly half of the public believing a candidate’s actions are disqualifying might be a cause for any candidate to worry, winning the presidency does not require even 50 percent of public support. Two months ahead of the general election, Trump is polling about even with his major party competitor, suggesting that for a large block of voters his actions to overturn the 2020 election are not sufficiently disqualifying to deny him a second term.
Voters might reestablish accountability and effective deterrence against politicians who would try and overturn future elections if enough of them reject Trump in the general election in a manner that strongly suggests his actions to overturn the 2020 election were a primary reason. Swing state exit polling after the November 2024 general election may, or may not, provide enough clarity to answer that question.
Assessment: While a majority of voters have voiced negative sentiments about Trump’s effort to overturn the 2020 election through extrajudicial means and brute force, and though their responses to polling include significant warning signs for future political actors, those sentiments are not definitive. A large block of voters have also indicated with their actions at the ballot box that such behavior is not disqualifying. The pending 2024 general election may provide evidence on which block of voters is ascendant, but as of the writing voters have not decided unequivocally if a president attempting to overturn an election with force is acceptable. The institutions and people of the United States have left this question troublingly unresolved.
Conclusion
A democracy that cannot effectively respond to and reject an attempt by a president to overturn an election with subterfuge and brute force is in serious trouble. If our institutions and political culture cannot come to a decision on such a fundamental question, it suggests that political tribalism and the fear of or inability to meet brazenly unconstitutional acts with determined rejection are dangerously undermining our democracy.
George Washington warned us in his farewell address that yielding to the inevitable pressures of political tribalism would lead to government dysfunction, fueling disillusionment and cynicism, ultimately threatening the continued viability of the nation’s experiment in democracy. America is failing to heed that warning.
We are compelled to ask ourselves as citizens what we can do to check and reverse this headlong descent into tribal politics and hyper-partisanship, to elevate the interests of the country and the health of our democracy above the never-ending quest for tribal primacy, a malady not unique to any political party or identity. Fortunately, one of the most compelling solutions is apparent: Reform our election system to diminish the incentive for politicians to pander to voters who value tribal division over the basic function of our democracy.
Step one would be to move away from partisan primary elections that reward candidates who pander to a small minority of citizens. These base voters who participate most reliably in party primaries are often the most passionate, and their emotional attachment to tribal identity too often supersedes a willingness to question troubling behavior by members of their own tribe or countenance the cooperation and consensus-building needed to maintain a functioning democracy. The solution is nonpartisan primary elections that elevate candidates who show a willingness to cooperate with those outside the tribe when in the clear best interests of the country, coupled with general elections requiring that successful candidates win the support of a majority of voters, rather than simply a plurality. These reforms reward candidates who reach out beyond a narrow party base and incentivize the elevation of cooperation over tribalism.
Step two would be to diminish partisan gerrymandering of electoral districts, which decreases the number of competitive districts and therefore incentivizes more divisive behavior. The solution is mandating that nonpartisan commissions draw electoral maps, rather than having partisan elected officials draw maps designed to benefit their tribal interest, which tends to promote hyper-partisan behavior.
Given the challenges of passing federal laws to enact reforms that may disadvantage entrenched interests and politicians, these reforms will likely need to be enacted state by state. The good news is these reforms are already being adopted in a growing number of states. There are related reforms on the ballots in November 2024 in Nevada, South Dakota, Oregon, Montana, Colorado and Arizona, among others. Many voters are fed up with tribalism and dysfunction, and momentum for reform is building.
But we are in a race against time. The forces of tribal division are unrelenting, and our democracy is being pushed by hyper-partisanship to the brink. Incentivizing more responsible behavior by politicians will not change our political culture overnight nor will it end the tribal instincts intrinsic to human nature. But it will begin to reverse the downward spiral in our politics. Calling upon elected leaders to act more responsibly is unlikely to work if we do not change the incentives built into our election system. Though reform is a difficult slog, we have the solutions and means to change the course we are on.
We must find the will to do it.
