At the end of Tuesday night’s chaotic first presidential debate, moderator Chris Wallace asked President Trump if he would “pledge tonight that you will not declare victory until the election has been independently certified.” The president’s answer was, worryingly, not an automatic yes.
“If I see tens of thousands of ballots being manipulated, I can’t go along with it,” Trump said, referencing unsubstantiated claims of voter fraud from his camp.
This comes on the heels of his refusal last week to commit to a peaceful transition of power when asked at a press conference — “we’ll have to see what happens,” Trump said — and recent reporting suggesting that the Trump campaign is planning aggressive challenges to election results in battleground states. Taken together, this news has brought what had been brewing worries about a constitutional meltdown this November to a boil.
Questions like “How far is he willing to go to win?” and “Will he leave office if he loses?” were once seen as far-fetched hypotheticals pondered by experts and pundits; now, a month out from the election, they have become mainstream concerns.
Trump has a long history of attacking the integrity of America’s elections. He chalked up his 2016 popular vote defeat to the fact that “millions of people voted illegally.” In 2018, he accused Democrats of trying to steal the Florida Senate and gubernatorial elections using “massively infected” ballots. And earlier this year, he claimed that “the only way we’re going to lose this election is if the election is rigged” — repeatedly arguing, with no evidence, that Joe Biden and the Democrats will use fraudulent mail-in ballots to steal the election.
Trump’s focus on mail-in ballots is pernicious, and intentional. Because of the Covid-19 pandemic, many, many more Americans are planning to cast their ballots by mail. And polls have shown that Democrats are likelier to vote by mail than Republicans. One can easily imagine a scenario where the battleground states take quite a long time to count their mail-in ballots — and if those tilt the outcome toward Biden, Trump voters will be primed to see the results as tainted.
Beyond casting doubt on the legitimacy of a Trump defeat, talk of fraud also lays the groundwork for Trump and his allies to interfere with the electoral process itself. Such attempts can take many forms: lawsuits even more brazenly political than Bush v. Gore; convincing Republican state legislators in battleground states to override the vote count and send Trump supporters to the Electoral College; or quite simply refusing to leave the White House on January 20 and hoping the military will take his side.
Which leaves us with a question: How worried should we be?
The general sense among experts on American politics is that the nightmare scenarios — an outright stolen election, each party attempting to inaugurate a different president on January 20, or clashes between armed supporters of each side — are only plausible if the election is close, and even then, they remain unlikely.
“Unless there’s a catastrophic failure on Election Day ... then the election only goes into overtime if the election is close enough to litigate in a state that is essential to the Electoral College outcome. That’s unlikely if the polls are even close to accurate,” Rick Hasen, a law professor at the University of California Irvine and author of the recent book Election Meltdown, tells me.
But Trump’s 2016 win and the emergence of a pandemic earlier this year were both “unlikely,” too. If we’ve learned anything from the past few years of politics, it’s that this kind of low-probability, high-impact event can happen — and needs to be planned for if the worst is to be avoided.
“In my mind, the worst-case scenario is the possibility of dueling inaugurations ... a situation where we’re facing the end of the republic as we know,” says Franita Tolson, an election law expert at the University of Southern California.
Trump’s various options for stealing the election
The two most distinctive features of the 2020 election are the coronavirus pandemic and a president unlike any other who has held office before him. These factors combine in a particularly dangerous way, creating the conditions for a constitutional crisis on November 3.
Covid-19 has obviously caused a massive increase in mail-in ballots. A CNN survey published on September 25 found that states already had plans to mail at least 71 million absentee ballots to voters — a figure about 50 percent higher than the number of absentee ballots cast in the entire 2016 election.
Trump has long been hostile to mail-in ballots (despite using them himself), treating remote voting as a fraudulent Democratic tool for stealing elections. In 2020, there is an unusually high partisan split in mail-in voting, as the president’s rhetoric seems to be dissuading Republicans from voting remotely. If Biden wins in a close election, mail-in ballots — which can take longer to count than day-of ballots — will almost certainly be the decisive factor in his victory.
Though there is virtually no evidence for Trump’s claim that mail-in ballots are vehicles for fraud — a point that veteran Republican attorney Ben Ginsberg recently conceded in a Washington Post op-ed — this has not stopped Trump or Republican Party leaders from claiming that fraud is endemic.
These are the conditions under which the 2020 election could melt down. If Trump continues to insist that mail-in votes are fraudulent, and the institutional GOP continues to support his claims, they have options under the American legal and political system to challenge the results — and potentially flip them.
The first and most straightforward tool is lawsuits. As of September 29, more than 300 Covid-related election lawsuits had been filed across the country. In Pennsylvania, the Trump team has already won a state Supreme Court case on “naked ballots” (mail-in ballots sent in without a secrecy envelope) that could lead to thousands of votes being discarded.
In the event of an election where mail-in ballots are the decisive factor, it’s easy to imagine the Trump camp filing a series of lawsuits aimed at blocking the counting or disqualifying mailed ballots. In such a scenario, the election will be decided not by voters but by the Supreme Court, as it was in 2000. Today, Bush v. Gore is seen by many experts as less an exercise in legal reasoning than in power, a 5-4 partisan split in which Republican justices elevated their candidate for essentially political reasons. There’s a reason no Supreme Court ruling has ever cited Bush v. Gore as a precedent: The justices themselves described it as a one-off.
Fears of Supreme Court meddling in 2020 don’t come out of nowhere: Trump has been musing about this very thing out loud. “I think this will end up in the Supreme Court, and I think it’s very important that we have nine Justices,” he said last week. And some Court observers believe that if Trump’s Court nominee Amy Coney Barrett is confirmed, she’d be likely to take his side in election-related litigation.
“Thomas, Alito, and honestly probably Barrett are out of reach,” says Leah Litman, a constitutional law scholar at the University of Michigan. “Kavanaugh worked on the Bush recount litigation.”
Another option for the Trump campaign runs through Republican-controlled state governments.
The Electoral College is an exceptionally strange institution, designed in the 18th century around fears that people would make bad decisions and elevate dangerous leaders. To that end, the framers put in a failsafe around presidential elections: People would not directly elect the president. Instead, the people would vote — and then, based on that vote, elected officials at the state level would designate which party’s representatives would be sent to the Electoral College and then actually choose the president.
But there’s nothing in this system that compels governors and state legislatures — the relevant law is unclear on how delegate selection works, but USC’s Tolson tells me that governors should in theory have the final say — to pick electors who will actually vote for the person whom the state board of election certifies as the winner. Again, this is consistent with the overall design of the Electoral College: The framers wanted an out in case the people voted for a demagogue.
It’s grimly ironic, then, that a demagogue may be preparing to use this system to hold on to power if he loses. According to Barton Gellman’s reporting in the Atlantic, the Trump campaign is laying the groundwork for convincing Republican-controlled state legislatures in battleground states like Pennsylvania and Wisconsin to attempt to override the voters in the event of a narrow defeat.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’” one Trump legal adviser told Gellman.
The key words there are “think” and “accurate.” This entire strategy depends on Trump convincing a critical mass of Republicans — voters, national politicians, and state elected officials — that mail-in voting is a vehicle for fraud, and that legislatures can bypass official vote counts and Democratic governors to coronate Trump. In this sense, the legal strategy and state-override strategy go hand in hand: The more court decisions by Republican-appointed jurists cast doubt on the legitimacy of absentee ballots, the more cover Trump and his local allies will have to act to discount or overrule them.
“The idea is to throw so much muck into the process and cast so much doubt on who is the actual winner in one of those swing states because of supposed massive voter fraud and uncertainty about the rules for absentee ballots that some other actor besides the voter will decide the winner of the election,” UCI’s Hasen writes in Slate.
These strategies are, needless to say, flagrantly undemocratic and tantamount to a kind of legal coup. Democrats would almost certainly contest them; if they refuse to accept a Supreme Court ruling as binding, or if they get (for example) Pennsylvania’s Democratic governor to send a competing slate of Biden electors to the Electoral College, there is no mechanism for forcing either side to back down.
In this scenario — or one where Trump loses the key court cases and refuses to accept their results — you could end up with some truly terrifying possibilities.
“It’s possible to imagine, come January 20 [Inauguration Day], that we don’t have a president,” Lawrence Douglas, a professor at Amherst College, tells Vox:
By the terms of the 20th Amendment, Trump ceases to be president at noon on January 20 and [Mike] Pence likewise ceases to be vice president. At this point, by the terms of the Presidential Succession Act of 1947, the speaker of the House, Nancy Pelosi, could become acting president, but only if she resigns her House seat.
But what if Trump continues to insist that he has been reelected and is the rightful president? Imagine if, come January 20, Trump stages his own inauguration ceremony with Clarence Thomas issuing the oath of office. Then we might have Nancy Pelosi and Trump both claiming to be the commander in chief.
With political factions deadlocked, disagreeing on both who should be in office and what procedures should decide on the result, there is no rule that can be used to resolve this dispute. We would be in a situation like Venezuela today, where two elected leaders — Nicolás Maduro and Juan Guaidó — both claim to be the rightful president.
In Venezuela, Maduro rules because the army backs him: In constitutional crises, force is always the deciding factor of last resort. It should be impossible to imagine this kind of situation in the United States.
But, increasingly, it’s not.
These nightmare scenarios are unlikely — but not impossible
You, reader, may be very scared right now.
But let’s take a deep breath and think a little more calmly about this. The good news is that experts like Hasen and Litman believe these nightmare scenarios to be fairly unlikely.
The first and most obvious reason is that they seem to depend on a close election: Trump will almost certainly try to cast doubt on the legitimacy on any loss, even a decisive one, but it’ll be much harder for him to build political support for actually overturning the results if they’re crystal clear.
And currently, the polls are not all that close.
As of this writing, FiveThirtyEight’s national poll average has Biden up by 7.1 points — a significant national lead that, unlike the Clinton-Trump contest, has been relatively consistent for the entirety of the campaign. RealClearPolitics’ average of the six most important swing states (Florida, Pennsylvania, Michigan, Wisconsin, North Carolina, and Arizona) has Biden leading in all of them, some by large margins. Biden also recently pulled ahead in Ohio, a state many observers had chalked up to Trump, and is within striking distance in the previously red strongholds of Texas and Georgia.
This is not to say that a Biden win is a certainty. Rather, it’s to say that the best evidence we have points toward a healthy Biden victory as the likeliest scenario. And if Biden wins Florida, which permits counting absentee ballots before election night, and hence will likely have a full tally on November 3, the election would likely be called quickly — which could make it hard for Trump to claim that Democrats are winning through some kind of fraud.
Second, Trump’s strategy depends on courts going along with him for purely partisan reasons. They might not.
“I do think that the chief justice has internalized the lesson of 2000,” Tolson says. “It is entirely possible he questions whether [Bush v. Gore] was worth the legitimacy of the Court, which was in question for a number of years after the decision.”
Given the clear fact of the matter — that mail-in ballot fraud is astonishingly rare — any court ruling throwing out enough of them to swing the election to Trump could be even more brazenly partisan than Bush v. Gore. Chief Justice John Roberts has shown himself to be deeply sensitive to public opinion; while skepticism is certainly called for when it comes to this Supreme Court weighing in on the election, a 5-4 ruling in favor of Trump is not a foregone conclusion, especially if Trump keeps telegraphing that he expects the Supreme Court to keep him in power.
“If we have something like Bush v. Gore, then the Court dividing along party/ideological lines is quite possible. [But] I think Chief Justice Roberts would try like hell to avoid such an outcome,” Hasen tells me.
There’s some encouraging evidence from an August case on absentee voting, Republican National Committee v. Common Cause Rhode Island. In this case, justices upheld Rhode Island officials’ decision to waive a state requirement that absentee ballots be validated by two witnesses or a notary by a 6-3 margin — with Roberts and Trump appointee Kavanaugh siding with the liberals.
“The Rhode Island decision,” my colleague Ian Millhiser writes, “suggests that the Supreme Court will not act entirely as a rubber stamp for the Republican Party when the GOP asks the Court to limit voting rights.”
Third, Trump’s strategies all depend on full institutional cooperation from the Republican Party, which is hardly a guarantee. After Trump’s refusal to commit to a peaceful transition of power on Wednesday, the Senate passed a unanimous resolution reaffirming a “commitment to the orderly and peaceful transfer of power.” Prominent Republicans, including Sen. Mitt Romney and Rep. Liz Cheney, tweeted criticisms of Trump’s comments. Even Senate Majority Leader Mitch McConnell distanced himself from the president:
The winner of the November 3rd election will be inaugurated on January 20th. There will be an orderly transition just as there has been every four years since 1792.— Leader McConnell (@senatemajldr) September 24, 2020
McConnell’s tweet matters, mealy-mouthed as it may be. Given that he’s the most important (and ruthless) Republican leader in the country, aside from the president himself, for him to even suggest that there is such a thing as “too far” is putting Trump on a kind of notice.
The president needs the full weight of the GOP behind him to pull off any kind of election theft scheme. If a few key Republicans break ranks, at either the state or the national level, some pathways (like state electors overriding local vote counts) could actually be blocked. The more significant the internal dissent becomes, the harder it is for Trump to rally the party faithful in support of his procedural shenanigans.
Finally, the international comparisons are reassuring.
In the political science literature on democracy, one of the central ideas is the notion of “democratic consolidation” — the process by which a country’s commitment to the basic rules and norms of democracy become broadly accepted by the general population that its replacement with authoritarianism is seen as unthinkable.
The United States has long been seen as a paradigmatic consolidated democracy, with all the features scholars typically associate with solid democratic foundations: an extremely high GDP per capita, a professionalized military (that has already pushed back on Trump’s attempt to politicize them during the summer protests), an independent judiciary, a generally accepted written constitution, and a long history of peaceful power transitions. There’s just never been a country like the contemporary United States that has had a complete breakdown of the electoral process of the sort we’re currently contemplating.
For all these reasons, the odds of Trump actually trying one of these election theft scenarios and getting away with it are very low.
Let’s not forget that it’s 2020
If we’ve learned anything from the past few years, implausible is not the same as impossible.
You can imagine a systematic polling error that narrows the election considerably; it happened in 2016.
You can imagine the Supreme Court ruling in a deeply political way — just look at Bush v. Gore.
You can imagine Republicans going along with one of Trump’s election-rigging schemes: Think of all the unacceptable things, like the Ukraine scandal or the botched Covid-19 response, that they’ve aided and abetted.
And you can imagine American institutions failing even if it’s novel by international standards. Democracy has only been a major feature of human political life for the past few centuries, a relatively short period in our species’ history. It’s possible that whatever we think we know about it, and despite the fact that “rules” of political behavior seem ironclad in recent history, our system just hasn’t been tested under the right circumstances.
When thinking about the possibility of an election meltdown, then, the best way to think about it is like any other rare but hugely significant event. And life during the pandemic — itself an unlikely but extremely consequential event — is full of useful analogies here.
If you’re in an area with little community spread, you probably won’t infect your aging parents by visiting them. But the potential consequences, killing your parents, would be unimaginably bad. Therefore, many of us still take extra precautions — sitting farther away, staying outdoors for the most part, wearing a more heavy-duty mask, self-isolating for two weeks and getting tested prior to the visit.
American democracy now needs this kind of emergency precaution. Both the Biden campaign and Democratic-aligned groups are setting them up, creating legal teams to fight Trump’s delegitimization of ballots and organizational infrastructure to gin up public opposition to a stolen election.
But ordinary citizens have a role to play here, too. As I’ve spent the past few weeks reporting on the increasing threats to American democracy, one thing experts have consistently told me is that the most important safeguard for democracy is citizen participation.
“The first thing everybody can do is you can call your senator, your member of Congress, your state legislator, your governor, and insist [upholding] basic democratic principles,” Nils Gilman, the vice president of programs at the Berggruen Institute think tank, tells me. “The second thing we need is for people to be prepared to take to the streets in nonviolent protest if that doesn’t happen.”
The American political system is rotting for two basic reasons: an outdated Constitution that allows for minority rule, and a Republican Party that follows a demagogue willing to exploit these constitutional flaws to cement its own power. We wouldn’t be in this situation if Republicans hadn’t embraced anti-democratic politics long before Trump; we have no guarantees that Election Day will mark some kind of turnabout.
“I’m a constitutional law scholar. I would love to be able to say these issues are complicated, and both sides have points: that is the academic thing to do,” Litman tells me. “But the reality is that when one side is not committed to making elections more democratic and counting ballots, that’s a threat to democracy. It just is.”
If Republicans aren’t prepared to check Trump, Americans need to be ready to do it on their own. The fact that the system is being pushed to the breaking point doesn’t mean it’s become irreparable. Sketching doomsday scenarios shouldn’t be demobilizing; it should galvanize action.
The more we as a nation prepare for the worst-case scenarios, the less likely they become — we hope.
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