There should be a consequence for the dismissed case, which lives on in futile election results challenges. News leaders are empowered to deliver it.
By: Michael Bugeja, January 5, 2021 Copyright 2021 Poynter Institute
On Jan. 6, Congress will count electoral votes to validate the 2020 election for president and vice president. There will be a final, futile attempt to challenge the results in swing states, essentially resurrecting unsubstantiated claims of Texas v. Pennsylvania, et. al, U.S. Supreme Court.
Editors and news directors have an ethical obligation to go on record regarding the 126 Republican Representatives who endorsed this subversive case.
As such, we might revisit this historic case as well as journalism’s primary role to inform citizens so that they make intelligent decisions in the voting booth.
America is a representative democracy or, more specifically, a federal constitutional representative democracy. We are not a pure democracy, electing presidents by popular vote; if so, Hillary Clinton would be president. Nor are we a pure republic, in which representatives can override the will of the people. We have elements of both because states and the federal government share power.
In addition to that, we have checks and balances among the branches of government: executive, legislative and judicial. Again, we are reminded of that as state, federal and U.S. Supreme courts have dismissed or rejected 60 claims that the 2020 election was rigged, fraudulent and/or unconstitutional.
The most egregious example was the Texas Supreme Court case filed by that state’s attorney general, Ken Paxton. He asserted that elections in Pennsylvania, Georgia, Michigan and Wisconsin, which President-elect Joe Biden won, were unconstitutional because voting procedures were determined by nonlegislative means.
Coup without consequence
In a new twist on “cancel culture,” the Texas suit sought to invalidate millions of votes so that President Donald Trump could claim a second consecutive term.
Trump intervened in the case, calling it “the big one.”
The case was doomed from the get-go, with Texas having no legal interest in how other states ran their elections. Strange that Texas, once a republic (1836-1846) and still known for autonomy, should advance a case that nullifies state rights. Same goes for the attorneys general of several red states; but those are the lines that Trump’s adherents cross to enable his alternative reality.
On Dec. 11, the U.S. Supreme Court dismissed the case in a two-paragraph order.
The 126 signatories, joined by 18 state attorneys general, engaged in a political strategy known as “power without consequence.” They could sign on, knowing the case would be thrown out, and still profess to be supporting a president who cannot accept defeat.
But there should be a consequence, and editors and news directors are empowered to deliver that. They also have an ethical obligation to do so as members of the Fourth Estate.
Social responsibility is grounded in Jeffersonian free press philosophy. Thomas Jefferson’s famous 1787 citation — “were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter” — is the bedrock of that precept. Often neglected is the next sentence of that citation: “But I should mean that every man should receive those papers and be capable of reading them.”
That helped make education a core tenet of the United States, best articulated by John Jay, the nation’s first chief justice. He considered “knowledge to be the soul of a republic,” and education a birthright in which “nothing should be left undone to afford all ranks of people the means of obtaining a proper degree of it at a cheap and easy rate.”
Because of education, necessary to read newspapers, journalism became the unofficial but formidable fourth branch of government.
Education is essential in any republic, because an unscrupulous alliance — which Jay dubbed “the weak and the wicked” — might seek to overthrow the will of the people.
That is precisely what the Texas suit aimed to do. Pennsylvania’s response to that attempt — “seditious abuse of the judicial process” — will reverberate in the historical annals.
Media history also will document journalism’s response, again associated with social responsibility.
In the 1971 case, New York Times Co. v. United States, the highest court allowed the Times and The Washington Post to publish classified information, otherwise known as the Pentagon Papers, about the Vietnam War. A key argument acknowledged “the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”
That statement applies in the Texas case.
Going on record
Those elected signatories and adherents should be held to account for undermining the democratic process. Consider the example set by the Orlando Sentinel, whose editorial board apologized for endorsing U.S. Rep. Michael Waltz, noting:
We had no idea, had no way of knowing at the time, that Waltz was not committed to democracy.
During our endorsement interview with the incumbent congressman, we didn’t think to ask, “Would you support an effort to throw out the votes of tens of millions of Americans in four states in order to overturn a presidential election and hand it to the person who lost, Donald Trump?”
It will be our collective bad to ignore social responsibility and allow those House Republicans and Senate adherents to circumvent consequences for their signatures.
What can editors do?
- Consider withdrawing endorsements or declining to write future ones on behalf of any of those signatories or adherents.
- Reference their anti-democratic support of the Texas case or Jan. 6 electoral-vote objections in any online biography or news item in which they appear as source or subject.
- Create content to explain to your audience journalism’s primary role of upholding democracy and holding elected representatives to account.
Any or all of the above puts your company on record.
Legal historians will look at this case as one of the most outlandish attempts to subvert democracy. Media historians will look at how newspapers, broadcast stations and online news outlets covered it via doctrines of social responsibility.
It is up to editors and news directors to make their case about the Texas signatories and Jan. 6 adherents.