The time for America’s testing has come, Judge Michael Luttig told a rapt audience at Guild Hall in East Hampton on Monday. “In Lincoln’s terms,” he said, “we are going to determine, in this calendar year, whether this nation, or any nation so conceived in liberty and dedicated to the proposition that all men are created equal, can long endure.”
Amid growing concern about interference before, during, and after the Nov. 3 midterm elections and with control of Congress and a check on unprecedented assaults on the Constitution and the rule of law in the balance, the title of the Hamptons Institute’s discussion asked the essential, unnerving question: “Is Democracy Itself on the Ballot?”
With a fellow panelist, Jeh Johnson, former secretary of homeland security and general counsel of the Department of Defense, and the moderator, Michael Waldman, president and chief executive officer of the Brennan Center for Justice, Judge Luttig, who served on the United States Court of Appeals for the Fourth Circuit for 15 years, debated the prospects for free and fair elections in 2026, as President Trump, his approval at just 30 percent in one recent poll, telegraphs his intention to cast doubt on, if not manipulate or negate, the vote.
A pop-up performance by a local band known as the Fistys set the tone for those arriving for the discussion, performing songs titled “I Dissent” and “The Constitution Is Dead,” among others, outside Guild Hall’s parking lot.
“How will we know how bad things are getting around the election?” Mr. Waldman asked. “The one shoe that has not dropped in a big way is the potential use of [Immigration and Customs Enforcement], or the National Guard, or troops, or other things.”
“It’s entirely illegal,” Mr. Johnson said. A complaint, he said, “is not only drafted, the toner is in the printer.”
Judge Luttig said he tells the groups he is advising on the midterm elections that the president will deploy ICE to the polling places, and if he decides to, he will deploy the military to the polling places to intimidate as many people from going as possible.” While it may be assumed that “the Supreme Court would reverse that in a second,” he said, “it would not. If Donald Trump says that he has reason to believe that a fraud, widespread fraud in any particular polling place, in any city, and issues an executive order to the United States military to go protect the polling places, the Supreme Court of the United States would not touch that issue.”
Hopefully, Mr. Johnson replied, “the district judges, who I think have done an admirable job of calling balls and strikes, will shut it down. . . . It’s so obviously illegal, for an illegal purpose. There’s no security threat around polling places.”
Judge Luttig was unmoved. “But as we all know, Donald Trump and his F.B.I. and Department of Justice have been roaming the country, seizing the voting records from the states — whatever state he wants — from the 2020 presidential election. . . . Much of our government taxpayer money is being spent on investigating the 2020 presidential election for the umpteenth time to somehow prove that Donald Trump was actually elected president in 2020. Does anyone doubt at all that he will not do that in upcoming midterm elections on the spot?”
Lower courts would likely rule such actions illegal, Mr. Waldman said, “but the worry, of course, is that it wouldn’t matter because it would be too late. . . . There needs to be a civic mobilization around the elections, just as there was during Covid when we were all working together to find ways to make it so people could vote in those trying times.” Vote early if possible, or vote by mail but use a drop box, ideally in a government building, he advised.
Civic involvement can make a difference, Mr. Johnson said, pointing to citizens’ pushback when thousands of ICE agents conducted door-to-door raids and sweeping arrests in Minneapolis early this year. “The people can make a difference, can cast a light on what our government is doing.”
Again, Judge Luttig threw cold water on Mr. Johnson’s optimism. “It’s too late,” he said. The president and Republicans “started five years ago. . . . They own the election apparatuses in the states that they need to own . . . the state legislatures and the state election officials. Meanwhile, the rest of us have been wringing our hands, thinking and saying, ‘Well, this just can’t be happening in America.’ For five years, that’s what we’ve been saying. It’s happened. It’s happening.”
The only thing that can save the country, the judge said, “is for the rest of us Americans to have the courage that our founders had when they pledged their lives, their fortunes, and their sacred honor to gain independence for the United States of America.” How many of us, he asked, “would ever even think to pledge our fortunes,” let alone lives, for the country?
Judge Luttig and Mr. Johnson co-chair the ABA Task Force for American Democracy, launched by the American Bar Association in 2023 to protect election integrity and bolster public trust in democratic institutions. “We need to re-incentivize our elected representatives in Congress to want to appeal to the political center and not the political extremes,” Mr. Johnson said. Citizen redistricting commissions should draw congressional district maps, he said, and the nation should adopt open, nonpartisan primaries and ranked choice voting. He suggested that “the top three vote-getters in each congressional district go to Congress,” tripling the size of the House of Representatives.
The latter proposal, Mr. Waldman said, would result in “much greater diversity within the legislative branch, more different types of views being represented, and, at least in theory, some diminution of polarization.”
Again, Judge Luttig dashed any optimism in the room. “There will not be an America to save at the end of this president’s term,” he said gravely, “if we do not do something now and every single day between now and November 2028. Nothing will be left.”
Both panelists condemned the Supreme Court’s 2010 Citizens United decision, which struck down legal limits on independent political spending by corporations, labor unions, and nonprofit organizations, ruling that such spending is protected as free speech under the First Amendment. It has resulted in massive inflows of “dark money” — its source undisclosed — into elections.
“This is the same Supreme Court who held for the first time in 250 years that the president of the United States is above the law,” Judge Luttig said, referring to Trump v. United States, in which the court ruled in 2024 that a president has absolute immunity from criminal prosecution for actions within their “core constitutional powers” and at least presumptive immunity for all other official acts. “There was not one statement, hint, or suggestion by a scholar, by a judge, by a court, let alone by the Supreme Court of the United States, for 250 years that the president of the United States might not be criminally responsible under the Constitution of the United States.”
The larger point came moments later. “It’s a complete waste of our time to be trying to reform the Supreme Court while the house is burning to the ground,” he said.
Mr. Johnson, who at 19 worked for Representative Hamilton Fish IV, Republican of New York, voiced hope that a Republican representative “starts to think about their own place in history — ‘Did I stand up to this president, or did I just bend over and yield?’ “ Fish, whose father and grandfather had served in Congress before him, voted in favor of two of the three articles of impeachment against President Richard Nixon in 1974, “and was proud of it, even though his father wouldn’t speak to him for years after that,” Mr. Johnson said. “There will come a point, I believe — and I’m an optimist — that some of these people will start thinking about their place in history. And you see cracks in that door.”
Judge Luttig, once again, dismissed that vision. “Jeh, as the only Republican on this stage, I would just say to you, don’t waste your time. I am very serious about this — there is not a Republican elected official in America today who is thinking about how they will be remembered in history, or how they will be regarded should they ever arrive at the pearly gates.”
Mr. Johnson had allowed that “when we elect somebody — and we did this twice, and I think that deserves deeper study in and of itself — who has no understanding or respect for legal or constitutional norms, we’re in real trouble. . . . It’s hard to fathom exactly where it’s going to go” unless Congress “gets a backbone collectively and decides to stop him.”
That, Judge Luttig said, was “far too charitable.” For almost 250 years, “America was the beacon of freedom to the world and the envy of the world for its democracy and its rule by law, not by men” under the Constitution. On Jan. 6, 2021, “the president of the United States instigated a war on America’s democracy. As we all know, from that day to this very day, he is determined to prosecute that war to its catastrophic end. He does not care what that means for America.”
