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The Ghouls of 1860

U.S. Capitol. Public domain image.

Noxious revisionist history aside, the cause of the American Civil War is not in dispute: slavery, our nation’s original and most mortal sin, spawned our bloodiest conflict. The “war” part of the Civil War also has a fixed beginning: in April of 1861, Confederate forces fired on and captured Ft. Sumter — a federal base on the harbor of Charleston, South Carolina. In response, President Lincoln called for 75,000 union soldiers to put down the southern rebellion. The last four of 11 Confederate states seceded, and the war was on.  

Often missed in the Civil War’s origin story, though, is what led the initial seven states to secede in the first place. They did not try to leave because of any “northern aggression,” any change of laws regarding slavery, or even any express or implied federal threat to a state’s right to allow human bondage. No, these seven states seceded because they refused to accept the results of a presidential election, storming off before President Lincoln was even sworn in. 

Last Wednesday, terrorists also refused to recognize the outcome of an election. So they stormed into the nation’s Capitol, stained our republic, and left at least five people dead. These criminals were not rebooting the Spirit of 1776, but the Ghouls of 1860, making words like “sedition,” “treason,” and “insurrection” literal again. There was no mystery as to why they were there and what they hoped to accomplish. They were their losing leader’s bannermen (even replacing an American flag with Trump flag), summoned at his call. Their targets were the elected leaders gathered to recognize the results of the 2020 presidential election. 

Although rare, violent, deadly protests and riots do happen. We have seen our fair share of them in the last six or seven months alone. Too often, mobs will take life and destroy property as well. Evil is evil. Wrong is wrong. But what happened on January 6, 2021 was nothing like even 2020’s most violent riots, or really any other protest in the last 100 years or more. Why an armed uprising occurs and what its members hope to accomplish matter. Last week’s Capitol raiders were not interested in civil disobedience. They were political vigilantes, employing force to overturn an election. Whether they sincerely (if wrongly) believed in what they were doing is beside the point. Both their methods and purpose offended constitutional order in ways that no recent protest or riot came close to doing.

If the historical links between 1860 and 2020 are troubling, the ideological connections are downright scary. It is no mere coincidence in American history that refusals to accept electoral outcomes lead to insurrection. Sedition is democracy's arch enemy. Moreover, the provocateurs, past and present, justified their actions with lies so explosive they convinced even good people to risk and take human life.  

In 1860, secessionists lied by claiming that President Lincoln and northern Republicans would eviscerate state sovereignty, outlaw slavery everywhere, and radically upend the southern social caste system that even non-slave holders wanted preservered.  They continued to deceive when arguing that they then had the extra-constitutional right to leave the union anytime the political winds shifted. 

The multitude of 2020 political distortions are almost too numerous to count. But the lie that mattered most was the absolute fable that President Trump really won re-election. This malignant whopper imagines a broad conspiracy stretching across multiple states, involving millions of voters, requiring crimes from thousands of official actors and judges — Republican and Democratic alike, and implicating only the race for president. Worse, President Trump then matched fabricated remedies to fabricated injuries, asserting constitutionally abhorrent (and totally phony) rights, procedures, and authority to overturn the election itself. 

Make no mistake: President-elect Biden won the election, just as he has won every recount, independent review, evidentiary hearing, court case, and appeal. President Trump had every chance to prove otherwise and he failed completely. But he dismissed each defeat as a sign of a bigger conspiracy, not a dose of reality. The lies grew more dangerous.  

Here in Nevada, the Trump campaign had good lawyers. They filed a proper election contest, with the proper parties, in the proper place. The case ended up with a good and fair judge, no stranger to difficult disputes. President Trump’s team took depositions, retained experts, and submitted its findings. They made serious allegations, accusing almost 10 percent of Nevada’s voters of committing felonies. Unfortunately, at their request, they also filed nearly all of their evidence under seal, meaning only the other parties and the courts actually saw it. The judge was not convinced. Me neither. I have looked at the public data — anyone can — and the idea that there is any doubt that President-elected Biden won Nevada is as ridiculous as it is malicious. Indeed, the claims against Nevada were so spurious that not one Republican U.S. senator joined in the formal objections to Nevada’s electoral votes. Even so, telling the truth about Nevada’s elections became far harder than it should. 

This month marks two years since I submitted my first article to The Nevada Independent. Back then, I was still a Republican election lawyer. I pleaded with fellow Republicans to fully embrace both the right to vote and the obligation that comes with having to sell the party to a broader electorate. Restricting the franchise rather than reworking the message is never the answer. I then spent much of 2020 trying to calm fears over mail-in voting, and defending our electoral system and the results. When trust in our elections ends, madness takes over.

No matter how many articles I wrote, though, I could not keep up with the torrents of falsehoods voiced from the highest platform and office on earth. President Trump spent much of his presidency alleging nonexistent fraud, and much of 2020 preemptively claiming that the election would be stolen. He went so far as to float the idea of postponing voting. President Trump’s constant and deceptive assault on our electoral system finally led me out of the Republican Party last summer. I was an early “Never-Trumper,” an admitted “RINO,” and a supporter of President-elect Biden’s. But just criticizing and voting against President Trump was no longer enough for me.

I will never stop believing that the vast majority of people are wonderful, noble, one-of-a-kind miracles that I am fortunate to call countrymen and would be even more fortunate to know. That includes many of the good people here in Nevada I have had the honor of serving. Most of those in my orbit voted for Trump, and all of them were horrified by what occurred Wednesday. In support of causes and comrades, I have also committed my own political sins that I must bear. But President Trump must be held accountable; all options, including a possible second impeachment, should be considered.  

As Sen. Mitt Romney said, the “best way we can show respect for the voters who are upset is by telling them the truth.” Former Majority Leader McConnell also understood the stakes, noting that overturning elections “by mere allegations from the losing side” would send “our democracy” into a “death spiral.” That millions of Americans may genuinely believe that the election was stolen does not free anyone to join a false chorus.  We should tell and accept the truth, not expect our political opponents to expose it for us.   

In the end, patriotic Americans did prevent election theft in America. But President Trump was the thief, not the victim. In Nevada and elsewhere, tireless and unknown election workers, brave officials such as Joe Gloria and Secretary of State Barbara Cegavske and their staff, lawyers working for private and public clients, state and federal judges, and, most of all, millions of voters who refused to be disenfranchised stood strong and stopped the steal. Seditious electoral saboteurs may have breached the walls of the capitol, but the walls of democracy held. Let’s hope last Wednesday was the last gasp of something rotten and not the start of something worse. 

Daniel H. Stewart is a fifth-generation Nevadan and a partner with Hutchison & Steffen. He was Gov. Brian Sandoval’s general counsel and has represented various GOP elected officials and groups.

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