America faces unhinged autocracy if Donald Trump wins. But it could face consequences as bad or worse if he loses.
If Trump were to win, he would be at least hypothetically obliged to adhere to constitutional principles such as the separation of powers, Congress’s numerous independent functions, and the rule of law. Courts would still be more than alleged instruments of “election interference” unjustly perpetrated against Trump. There is good reason to think he won’t respect any law except that which he personally makes, which is pretty much the definition of “unhinged autocracy.”
If he loses, the threats to the republic are different, but no less real. If Trump is defeated again, he will claim that he won—again. He will refuse to accept defeat because he will know that there are still no contemporaneous, adverse legal consequences for election deniers (as he has showcased from 2020 to the present). Even if he has been convicted of one or more crimes, Trump will cite his asserted (and imaginary) victory as cause for his refusing to be bound by the courts. Quisling Republicans in Congress—which is to say, nearly all of them—will fall in line. Trump will hint at the prospect of violence via barely veiled messaging. He will be a loser with nothing more to lose.
Might we be sleepwalking into civil strife, social upheaval, and dire constitutional consequences?
It could happen. But it need not. There’s a very simple way for state legislatures to deter election denialism. They should amend their election laws now to prevent the sabotage of democratic elections in November by making election denialists pay—and I mean literally, financially—for putting the rest of us through this turmoil.
Late on election night 2020, after networks’ projections started showing him losing, Trump blurted out: “Frankly I did win this election.” He thus launched one of the most brazen and destructive con jobs in the history of American politics.
Trump’s refusal to accept that he lost cost him and his allies nothing. Yet as early as February 6, 2021, according to The Washington Post, election deniers had already cost all levels of government—are you ready for this?—an estimated $519 million. The costs included massive legal fees, enhanced security costs, repairs to the damaged Capitol, massing of National Guard troops, and more. The result, the Post reported, was that in just the first month after the insurrection, costs “have mounted daily as government agencies at all levels have been forced to devote public funds to respond to actions taken by Trump and his supporters.”
Some costs were borne by states. California alone had spent an estimated $19 million for its National Guard and State Troopers. At the federal level, as of January 5, 2024, the U.S. Department of Justice reported spending almost $24 million investigating and prosecuting Trump and co-defendants—direct costs of Jack Smith’s special counsel team and related DOJ support. In response to proliferating security threats to Jack Smith and his colleagues, DOJ reported spending $4.4 million on protection of the special counsel team between April and September 2023. And because of appeals, costs of housing inmates, vast and necessary expenditures on new voting technology, lawyers to write revised election regulations, expert consultants to advise on improved vote counting and recounting procedures, and additional election personnel at all levels of government, these numbers are fractions of what 2020 election deniers will ultimately cost taxpayers.
Election denial was the original sin, proximate in the chain of causation leading to January 6. And it cost the rest of us, and society, many millions of dollars. And yet, to date, no laws have been changed to impede prospective election deniers if they lose in November. State legislatures need to act; they have the power to hold election deniers to account. Here’s how.
Under this proposal, state legislatures would require candidates to sign binding pledges, under penalties of perjury, that they will accept the declared, official election results (after challenges, recounts, litigation, and so on). Candidates should be afforded an option to pledge early—within one week of Labor Day, say.
For candidates who agree to sign the pledge, that’s the end of it. But candidates who do not sign the pledge within a certain reasonable time frame will be forced, under these new laws, to put down a deposit. These deposits should be substantial. They will vary from office to office: A Senate candidate should have to put down more than a state legislative candidate. Also, they’ll vary from state to state: Candidates in expensive states like Florida will put down more than candidates in Vermont. But in every case, the amount should pinch—it needs to be big enough to encourage all candidates to sign.
The deposits will be held in escrow by state treasurers. Then the law would impose a deadline for candidates to decide to sign the pledge—ideally, two weeks before Election Day. If they sign the pledge by that deadline, their deposit is returned to them and they can spend it trying to get elected. Thus candidates are highly incentivized to sign—and agree to the democratic outcome.
But those candidates who still hold out and don’t sign? The state keeps their deposits. Forfeited funds will be used to defray potential governmental costs precipitated by the actions of election deniers. State legislators would establish methods, priorities, and recipients for the distribution of proceeds.
The paramount objective of these new rules is not to collect mountains of forfeited cash. Most candidates will choose to sign the pledge and not have to plunk down precious campaign cash as a deposit. In fact, my intent is that most (or better still, all) candidates will do whatever it takes to avoid forfeiture. Hefty deposits are meant to induce candidates to cringe at the depletion, even temporarily, of their campaign coffers. Forfeiture is aimed at causing candidates to recoil at the specter of irreparable holes blown in their campaign budgets in the crucial final weeks before the voting.
The process of compliance with new provisions would be straightforward for candidates in U.S. House and Senate races, and for statewide offices. For presidential candidates, it will be a little more complicated, since voters cast ballots for electors, not the candidate him or herself. But states could require individual electors to sign the pledges and abide by similar rules. If electors refuse to submit pledges and are thus required to put down deposits, or become obliged to forfeit, the affiliated presidential campaigns would be required to cover the costs.
Elections have no meaning if candidates insist that the results are legitimate only if they win. Similarly absurd is allowing candidates to wait to see the outcome and then decide whether they will abide by it.
Before Trump, Americans—by and large—could count on political candidates to respect the voters, the electoral process, democracy, and each other. Regrettably, no longer.
This is why it is imperative that official election outcomes be accorded the respect befitting a democracy. Different perspectives on election denial should be given prominent attention during candidate debates and news coverage during general election campaigns. Voters deserve to know before Election Day the identities of any candidates who refuse to commit unequivocally to honor officially declared results.
If a critical mass of state legislatures—especially those in large or swing states—can move speedily to change their general election laws to regulate and thwart election denial, they will protect the integrity of elections in their states. By establishing prohibitively high preelection costs to would-be election deniers, state legislators can empower sovereign voters to leave losers no choice but to concede that they lost.
