The Attorney's Duty to Democracy: Legal Ethics, Attorney Discipline, and the 2020 Election

• Author: Alex Goldstein
• Position: J.D., Georgetown University Law Center (May 2022); B.A., Cornell University (2016)
• Pages: 737-771

The Attorney’s Duty to Democracy: Legal Ethics,

Attorney Discipline, and the 2020 Election

ALEX GOLDSTEIN*

INTRODUCTION

American democracy is at a crossroads.

1

See generally Preet Bharara, Christine Todd Whitman, Mike Castle, et al., Proposals for Reform:

National Task Force on Rule of Law & Democracy, BRENNAN CTR. JUST. (Oct. 2, 2018), https://www.

brennancenter.org/our-work/policy-solutions/proposals-reform-national-task-force-rule-law-democracy [https://

perma.cc/HFY6-88U9] (explaining how the breakdown of norms, unwritten rules, and respect for the rule of law

has contributed to democratic erosion and proposing solutions to revitalize American democracy).

According to some historians, the

2020 election and its aftermath have demonstrated that the Republican Party is

“clearly an authoritarian party,” no longer committed to the ideals of democracy,

free and fair elections, and the peaceful transition of power.

2

See Dean Obeidallah, Republicans would “rather end democracy” than turn away from Trump, says

Harvard professor, SALON (Oct. 13, 2021), https://www.salon.com/2021/10/13/would-rather-end-democracy-

than-turn-away-from-trump-says-harvard-professor/ [https://perma.cc/8BPH-WGNZ] (Steven Levitsky, co-

author of “How Democracies Die” explaining that Republicans “would rather end democracy” than stand up to

Trump and address the use of political violence. He also explains that use of terms like “fascism” to describe

today’s Republican Party are “defensible” given the party’s refusal to acknowledge January 6th’s significance

and promotion of political violence); see also Thomas Zimmer, The Republican party is abandoning

democracy. There can be no ‘politics as usual’, THE GUARDIAN (Feb. 22, 2022), https://www.theguardian.com/

commentisfree/2022/feb/22/why-are-democrats-like-biden-still-defending-republican-politicians [https://

perma.cc/WU6M-U2Z8] (Zimmer, a historian and Georgetown professor who focuses on the history of

democracy in the United States, describing the “Republican party’s ongoing authoritarian assault on the

political system”).

The United States

was listed as a “backsliding democracy” for the first time in the 2021 Global

State of Democracy Report.

3

Global State of Democracy Report 2021, INTERNATIONAL INSTITUTE FOR DEMOCRATIC AND ELECTORAL

ASSISTANCE 7 (2021), https://www.idea.int/gsod/global-report#chapter-2-democracy-health-check:-an-overview-

of-global-tre [https://perma.cc/YBJ5-CFE3].

The report referred to President Trump’s false asser-

tions about the 2020 election as a “historic turning point” that “undermined fun-

damental trust in the electoral process.”

4

Defining the threat that American

democracy faces openly and honestly can allow legal and political institutions to

treat this antimajoritarian movement with the seriousness and solemnity that is

required. In discussing the need to protect democracy, this Note employs a “ro-

bust view of democracy,” first introduced by two University of Chicago profes-

sors and democracy scholars, Aziz Huq and Tom Ginsburg, which focuses on

* J.D., Georgetown University Law Center (May 2022); B.A., Cornell University (2016) © 2022, Alex

Goldstein.

1.

2.

3.

4. Id. at 15.

737

national, intermingling institutions rather than the mere existence of periodic

elections.

5

The rise of right-wing authoritarianism has carried with it not just the threat of

democratic backsliding, but potential democratic collapse, through efforts to sub-

vert and overturn future elections. Although the United States escaped this fate in

2020, many signs point to a repeat scenario in future elections.

6

Steven Levitsky & Daniel Ziblatt, The Biggest Threat to Democracy Is the GOP Stealing the Next

Election, THE ATLANTIC (Jul. 9, 2021), https://www.theatlantic.com/ideas/archive/2021/07/democracy-could-

die-2024/619390/ [https://perma.cc/FY74-4UVR] (stating that “[a]ll evidence suggests that if the 2024 election

is close, the Republicans will deploy constitutional hardball to challenge or overturn the results in various

battleground states”).

Republican vot-

ers have embraced Donald Trump’s “Big Lie” that the 2020 election was stolen,

and that Joe Biden was not legitimately elected.

7

See David Paleologos, Paleologos: Voters divided by party in views on Biden legitimacy and our coun-

try’s biggest challenges, USA TODAY (Sept. 2, 2021), https://www.usatoday.com/story/news/nation/2021/09/

02/paleologos-poll-shows-partisan-split-biden-legitimacy-more-issues-suffolk-university/5694049001/ [https://

perma.cc/E78X-CU4W] (finding that as of September, 70% of Republicans did not believe that Biden was

legitimately elected, while 22% conceded he was).

Right-wing media regularly par-

rots this false claim, relying on the myth of widespread voter fraud.

8

See generally Tiffany Hsu & Katie Robertson, After Biden Win, Right-Wing Sites Still Push False Vote-

Fraud Claims, N.Y. TIMES (Feb. 7, 2021), https://www.nytimes.com/2020/11/11/business/media/right-wing-

sites-false-vote-fraud-claims.html [https://perma.cc/5S8C-XSRY] (describing the prevalence of misinformation

about voter fraud on Fox News and in other publications).

Republican

state legislatures have enacted a range of laws that “impose new or more stringent

criminal penalties on election officials”

9

October 2021 Voting Laws Roundup, BRENNAN CTR. JUST. (Oct. 4, 2021), https://www.brennancenter.

org/our-work/research-reports/voting-laws-roundup-october-2021 [https://perma.cc/N9P9-LT3N] [hereinafter

VOTING LAWS ROUNDUP].

and so-called “election subversion” laws

that allow partisan officials to take over the responsibilities of nonpartisan elec-

tion workers.

10

While election subversion remains an immediate threat to future elections,

Republican politicians have also enacted policies that cause “democrac[y] to

erode slowly, in barely visible steps” which could allow an “elected autocrat [to]

maintain a veneer of democracy.”

11

Although the courts appropriately applied the

law in response to the Trump campaign’s 2020 election lawsuits,

12

in recent deca-

des conservative Supreme Court Justices have consistently opposed the rights of

5. See Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. REV. 78, 87

(2018) (explaining that necessary preconditions of a “constitutional liberal democracy include 1) a democratic

electoral system, most importantly periodic free-and-fair elections in which a losing side cedes power; (2) the

liberal rights to speech and association that are closely linked to democracy in practice; and (3) the stability,

predictability, and integrity of law and legal institutions—the rule of law—functionally necessary to allow dem-

ocratic engagement without fear or coercion.”).

6.

7.

8.

9.

10. Will Wilder, Derek Tisler, & Wendy Weiser, The Election Sabotage Scheme and How Congress Can

Stop It, BRENNAN CTR. JUST. 1-2 (Nov. 8, 2021) (explaining that there are a range of laws that constitute “elec-

tion subversion” including “partisan reviews of vote tallies to justify overturning elections”).

11. See DANIEL ZIBLATT & STEVEN LEVITSKY, HOW DEMOCRACIES DIE 3, 5 (2019).

12. See David F. Levi, John Macy, & Amelia Ashton Thorn, 2020 Election Litigation: The Courts Held,

105 JUDICATURE 1 (2021) (detailing the lawsuits led following the 2020 election litigation).

738 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:737

voters against state restrictions.

13

Decisions gutting the Voting Rights Act,

14

hold-

ing political gerrymandering nonjusticiable,

15

upholding strict voter ID laws

16

and voter purges that have a disparate impact on voters of color,

17

and more

18

have opened the floodgates for Republican politicians in state legislatures, where

they hold unrepresentatively large amounts of power, to enact laws that will allow

them to entrench their power for years to come.

19

By October of 2021 alone,

legislatures in 19 states enacted 33 laws that will make it more difficult to vote.

20

One potential solution is the enactment of federal voting rights and election

protection legislation. However, given political conditions at the time of this writ-

ing, this remains unlikely.

21

See Alana Wise & Arnie Seipel, Democrats fail to change Senate rules to overcome GOP opposition on

voting rights, NPR (Jan. 20, 2022), https://www.npr.org/2022/01/19/1073908955/senate-voting-rights-bills-

libuster [https://perma.cc/2EW6-7WHD] (explaining that Senate Republicans have blocked oor votes on

voting rights legislation and two Democratic Senators, Joe Manchin of West Virginia, and Kyrsten Sinema of

Arizona, would not support changes to the libuster needed to overcome the 60-vote required threshold).

With the gutting of the seminal piece of voting rights

legislation, inability to pass new federal voting laws, courts that have consistently

refused to protect voting rights, and statehouses dominated by Republicans that

have decided that winning elections is more important than democracy,

22

few

avenues remain to protect American democracy before it is too late.

23

Hayes Brown, GOP redistricting maps will gerrymander Democrats out of the House, MSNBC

(Nov. 2021), https://www.msnbc.com/opinion/gop-redistricting-maps-will-gerrymander-democrats-out-house-

n1284067 [https://perma.cc/Y5PD-CFAW] (noting the likelihood that Republicans will gerrymander

congressional maps after the 2020 decennial census, severely limiting Democrats’ ability to win a House

majority).

One possible, but unexpected, institution that could serve as a guardrail for

America’s struggling democracy is the legal profession; specifically, the legal

ethics regime, which includes the American Bar Association, state bar commit-

tees, state judiciaries, and other institutions that enforce legal ethics rules. This

Note analyzes the actions of attorneys following the 2020 election to explain

how the legal ethics regime can stand up to attorneys that abuse their positions in

baseless attempts to overturn elections. State bars should apply a heightened

standard of scrutiny when investigating potential ethical violations committed in

13. See John Shattuck, Aaron Huang, & Elizabeth Thoreson-Green, The War on Voting Rights, CARR

CENTER DISC. PAPER 2019-003, 43 (2019) (explaining that campaign of attacking voting rights “has been facili-

tated by Supreme Court decisions invalidating protections of the Voting Rights Act, declining to review allega-

tions of partisan gerrymandering and striking down all restrictions on independent campaign spending”).

14. See Shelby Cnty. v. Holder, 570 U.S. 529 (2013); see also Brnovich v. Dem. Nat’l. Comm., 141 S.Ct.

2321 (2021).

15. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

16. See Crawford v. Marion Cnty. Bd. Of Elections, 553 U.S. 181 (2008).

17. See Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (upholding Ohio’s voter purge scheme).

18. Citizens United v. FEC, 558 U.S. 310 (2010) (striking down limits on “independent political spending

of corporations”).

19. See Shattuck, et al., supra note 13, at 12-14 (describing Republican state efforts to gerrymander legisla-

tive districts to maintain disproportionate power since 2010).

20. See VOTING LAWS ROUNDUP, supra note 9.

21.

22. See Obeidallah, supra note 2.

23.

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