As the Threat Grows, the Question Becomes, What Will We Do to Resist?

Elie Mystal / The Nation

 (September 30, 2020) — Multiple times a day, people will text or direct-message me a news story, and ask me, “What can we do?” It’s usually the last question I’m asked on any radio or television appearance. My mother asks me the question nightly, only she’s my mom, so it sounds like more of a demand than a question.

People who have been paying attention understand that we’re losing. They get that the elevation of Amy Coney Barrett to the Supreme Court is functionally unstoppable. They understand that Donald Trump has an infrastructure in place to suppress the vote in the upcoming election—or get his handpicked justices to hand him the election, or have Electoral College voters steal the election, or even use military force to keep himself in power after losing the election. They know the document leak that shows that Trump has been avoiding paying taxes, or outright defrauding the American government, will cost him no tangible support among his base.

Everybody honest knows that last night’s debate didn’t matter to most voters. Trump’s ignorance and incompetence have contributed to over 206,000 American deaths; if you’re still willing to vote for Trump, there’s nothing he can say in a two-hour “debate” that’s going to change your mind.

What’s harder for people to wrap their minds around is the fact that we’ve already lost. I know I’m supposed to say that “the 2020 election is the most important election of our lifetime,” but it’s not. The 2016 election was the most important election of our lifetime, and we, as a nation, failed. The media failed, and still fails, to cover Trump accurately.

The left failed to get enthused by an imperfect candidate. The right failed to demonstrate any moral or intellectual integrity. Over 100 million people failed to show up. I failed to help enough people understand what was coming, because I understood the inherent danger of John Roberts’s disastrous decision to gut the Voting Rights Act in Shelby County v. Holder.

So the 2020 election is not, in fact, our last chance at victory. It’s not an opportunity to right the wrongs of the past. This electoral battle is more like the Battle of Dunkirk. We’re fighting for the chance to retreat. We’re fighting for the chance to fight another day.

Even if we “win,” it will take years to regain what we’ve lost, and some people will never get back what’s been taken. A University of Washington study projects 410,000 coronavirus deaths by the end of this year, double where we are now. And it’s not as if the deaths will stop on January 1, or on January 20 if Joe Biden wins. 

Some estimates suggest that 1.3 million Americans would have to die to achieve the mythic goal of “herd immunity,” and Republicans seem hell-bent on killing every last one of them. Republican governors and culture warriors will not stop spreading their misinformation just because Biden is president.

And that’s the “rosy scenario”—the one in which Biden both wins and somehow assumes office. But right now, you’d be a fool to believe that Biden will become president just because he wins the most votes or wins the most votes in enough states to give him an Electoral College victory. We already know that Trump will contest the mail-in ballots that will overwhelmingly vote him out of office.

We already know that Trump thinks the Supreme Court is a tool to help him contest these ballots. We’ve heard of devious plans to convince Republican state legislatures to vote in slates of electors who will go against the popular will in their states, if necessary. People seem to have largely forgotten that every shred of foreign interference deployed for Trump’s benefit in the 2016 election is being used against our system again in 2020. And, seeing as Trump has not committed to the peaceful transfer of power, we would be wise to assume that at least some Secret Service offices and military commanders may be willing to fight to keep him in office.

During the debate last night, Trump refused to condemn white supremacists, then ordered his supporters to go to the polls and “watch,” a clear voter intimidation directive. At the very least, we know that Trump can count on Attorney General Bill Barr and Acting Homeland Security Secretary Chad Wolfe to deploy their federal storm troopers to crush opposition to Trump’s continued reign.

What can we “do” about that? I have lots of creative legal ideas, but I do not command a battalion to enforce those ideas. I own no weapons and can barely set a mousetrap without snapping off my fingers. I do not perceive that people want an honest answer to the question “what can we do,” because the possibility that Trump steals the election, through law or force, is too terrible to contemplate.

A Trump victory, if it comes at all, will surely come over the objection of the popular majority, once again. His second term will solidify permanent white minority rule in a soon-to-be majority-minority country. What he wants is functional apartheid: with diminished rights and representation for racial minorities, replete with the re-segregation of the suburbs that Trump keeps threatening.

The Senate itself is an undemocratic institution that by its very nature discriminates against nonwhite people, who are not spread evenly throughout the country. The Supreme Court too is, fundamentally, an antidemocratic institution run by people who are not subject to the popular will of our diverse society, which is one of the reasons the Republicans have invested so much time and energy in controlling it.

If Trump stays in office, we will either accept this illegitimate rule, or we won’t. Most (white) people will accept it. Those who do not will have limited options. There are ways to fight an authoritarian regime; there are ways to fight a kleptocracy; there are ways to fight fascism. None of them is pretty. None of them involves signing one’s name to a petition and then going on Etsy to find a virtue-signaling beer cozy. None of them is, strictly speaking “legal,” and we can literally see Bill Barr already putting the structures in place to make it illegal to oppose Trump in any way.

We have leaders, like Joe Biden, who want to restore the American government as it was, and we have tons of activists in the streets working tirelessly to reform the American government into something better. We have the moral high ground. But we don’t have, frankly, the military leadership in place to direct a guerilla campaign against an illegitimate regime. We don’t have a government-in-exile waiting to take power. We don’t have international allies. We don’t have an underground network of spies and saboteurs. We’re ready to vote. We’re not ready for what comes next.

We’re not ready even if, somehow, Biden wins and is actually allowed to take office. Trump and McConnell are about to push through another illegitimate justice to promote archconservative views for 40 years, and there are Democrats still talking to me about harming the made-up “legitimacy of the court” should the Democrats try to add justices. The police are out there murdering black people, sometimes on camera, and they have their handpicked prosecutors cover up those crimes, and Democrats are still telling me that “Defund the police” is a “scary name” that turns off potential “allies.”

Democrats are wringing their hands over ending the filibuster, a procedural rule that makes an undemocratic institution even less democratic. And they describe the idea of conferring statehood on D.C. and Puerto Rico (should the majority of Puerto Ricans want it) as a major reform of the Senate as opposed to a basic remedial action to give American citizens representation in their own damn government.

Things are bad. Worse than a lot of people are willing to admit. The only reason we can even hope that voting may get us out of this mess is that Trump is historically incompetent. But he’s been able to get this far because of systemic bias in our institutions, our media, and our populace. If we do not tear down the structures that helped Trump rise and thrive in the first place, a politician who is just as racist but slightly less bumbling could easily pick up these pieces and finish what Trump started. Things are bad now, but they can always get worse.

So yes, I know what we can do if voting isn’t enough. I can answer the question, but most people don’t like my answer. What we can do is fight, not with our words, but with our bodies. We can’t defeat the most lethal military power ever arrayed on Earth by strength of arms, but we can lay our bodies down in front of the tanks. We can refuse to work. Protests are ongoing in many cities, but, relatively speaking, very few of us have joined. At some point, they can’t beat us all.

If we don’t want to fight, we can flee. Those are our options. Those are always the options left to those who live to see their countries brought to ruin.

It’s not entirely hopeless. The good guys, some of them, got away at Dunkirk. They fled. They survived. Their defeat left the space for the worst human tragedy in the modern era, the Holocaust, to take place. There was, and remains, no recovering from that. But, eventually, the Allies returned, with new weapons and friends and tactics. They reformed and rebuilt Western Europe into a more egalitarian society than it had been before.

When we lose, there is suffering that can never be made whole. Estimates tell us that 68,000 soldiers died or were captured defending the retreat. That’s probably only a third of the number of Americans who will die from Covid-19 between now and the inauguration.

Elie Mystal is The Nation’s justice correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine’s monthly column “Objection!” He is also an Alfred Knobler Fellow at the Type Media Center. He can be followed @ElieNYC

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