We must prepare now for the possibility of violence following the election this fall. If it turns out to be a close or contested election, extremists from both sides may likely use it as an excuse to riot and attack. This will not be a repeat of the 2000 election, when the disputes were ultimately resolved by the Supreme Court in a controversial decision along partisan lines. The loser accepted it and told his followers to do the same.
But in this election, the candidates are not George Bush and Al Gore, and the country is not what it was 20 years ago. This is a very different and far more dangerous time. We are a much more divided nation. Violence is in the air in many of our cities and has received a degree of legitimacy from people on both sides who should know better. We are not prepared for a possibility of dangerous reactions to an election that may seem unfair to people on one side or the other based on the outcome.
A perfect storm may be just over the horizon, if not already here in several respects. There is a pandemic that could worsen by November, difficulties for voting, high unemployment, continued racial protests that sometimes devolve into violence, deadly wildfires out west that each side blames on the other, rabid hatred of opposition candidates fueled by the media, and criticism and defunding of the police which disincentivizes many officers from aggressively preventing or responding to violence.
There is reported unwillingness of several district attorneys to prosecute violent protesters with whose goals they might agree, fear among some political leaders of alienating the Black Lives Matter movement, abuse of the justice system for partisan advantage, broad distrust of government institutions and officials, as well as of the media, and several Americans with foul moods caused by isolation and other difficulties.
Such components of a perfect storm do not guarantee that there will be violence, but they surely increase the likelihood that the extremists, and perhaps even people who up to now have not engaged in violence, may very well take to the streets instead of, or in addition to, the courts. Both sides are gearing up for potential legal battles as they should do. But we should also be preparing for potential street battles this fall.
Preventing and responding to violence has to be our bipartisan concern. Neither side benefits from reckless actions, and both sides benefit from stability and the rule of law. Only the most extremist elements over both sides, who desire revolution rather than evolution, benefit from violence. Yet there are those in both sides who subtly apply a different standard to violence based on its source. Some on the left “understand” if not justify violence against perceived racial injustice and police misconduct. Some on the right “understand” if not justify violence against those who would tear down our nation, destroy statues, and attack our police.
Both are wrong. There has to be one standard with condemning violence, regardless of the source or reason. Our Constitution and our laws provide peaceful remedies to wrongs, regardless of the source or reason. Further, the rule of violence is simply the antithesis of the rule of law. Both parties and candidates have to declare they condemn all violent reactions to the election while supporting proper legal remedies. The Justice Department has to coordinate with state and local law enforcement officials. Attorney General William Barr has to immediately establish a bipartisan task force to anticipate and prepare for any violence after the election.
The key to preventing violence is bipartisan actions and words. If violence is stoked even subtly by either side, then it will persist and escalate. We all have a stake in preventing violence since its targets tend to be random. In the riots and vandalism of these recent months, the victims have included minority store owners and others who had just been in the wrong place at the wrong time. When violence spreads, it provokes more violence, as we have seen during this unrest. We all are potential victims.
The time to take action is now before the outcome in the election this fall is known, and while we still can speak out and take key measures against violence in a bipartisan manner. Once the election is over, and especially if it produces that kind of uncertain outcome reminiscent of 2000, it will be past this deadline for a united front against violence that may almost certainly be perceived as supporting one side or the other.
What is at stake is nothing less than the rule of law which benefits us all, regardless of party affiliation. We must preserve it against mob violence, whatever its source or reason. If we are to preserve the rule of law after the election, we must take action before the voting begins.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is an author whose newest book is “The Case For Liberalism in an Age of Extremism” available on Kindle. Follow him on Twitter @AlanDersh.