On election night and the days that follow, the country may be in for a roller-coaster ride, with ups and downs that raise and dash expectations, provoking anger and frustration.
Here is a scenario, sketched out by Edward B. Foley, a professor of constitutional law at Ohio State, in his 2019 paper “Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management.”
Foley presents a hypothetical widely discussed by election experts — with an outcome that hangs on the willingness of Republican-controlled legislatures to support Trump in the event that he loses the popular vote and refuses to commit to a peaceful transfer of power, as he has frequently threatened.
“The president might attempt to defy even a landslide in the popular vote in battleground states,” Foley writes:
The risk of a seriously disputed election depends in part on the preliminary returns available on election night, as well as the willingness of gerrymandered state legislatures to consider repudiating the popular vote, and the degree to which there develop genuine problems to fight over in court, or the ability to generate perceived problems that would give state legislatures cover for taking matters into their own hands.
Foley outlined a set of possible worst-case developments that could lead to not only bitter legislative and court fights, but also to protests by whichever side emerges as the loser:
This time it is all eyes on Pennsylvania, as whoever wins the Keystone State will win an Electoral College majority. Trump is ahead in the state by 20,000 votes, and he is tweeting “The race is over. Another four years to keep Making America Great Again.”
In Foley’s speculative account, The Associated Press and the networks do not call the election on Nov. 3, fully aware that there are still thousands of votes to be counted. The next morning, in this version of reality,
new numbers show Trump’s lead starting to slip. Trump holds a press conference, however, to announce “I’ve won re-election. The results last night showed that I won’” and warns that “I’m not going to let machine politicians in Philadelphia steal my re-election victory from me — or from my voters!”
The vote counting, in this scenario, continues as Trump’s lead slowly evaporates.
Foley, imagining what comes next, continues:
Trump insists, by tweet and microphone, “THIS THEFT WILL NOT STAND!!!” “WE ARE TAKING BACK OUR VICTORY.”
If events were in fact to unfold this way, and if Trump were to get the backing of the Pennsylvania State Senate and House, both currently controlled by Republicans, the stage could indeed be set for what Foley and other legal experts have described as a battle with few precedents.
Barton Gellman, in a long essay in The Atlantic, “The Election That Could Break America” makes extensive use of Foley’s conjecture. “Trump’s crusade against voting by mail is a strategically sound expression of his plan for the Interregnum,” the period from Election Day until the inauguration of Jan. 20. Trump, Gellman continues,
is preparing the ground for post — election night plans to contest the results. It is the strategy of a man who expects to be outvoted and means to hobble the count.
Lawrence Tabas, the Pennsylvania Republican Party chairman, told Gellman that he has discussed the possibility of the legislature rejecting some or all mailed-in ballots, and subsequently choosing a slate of pro-Trump electors to cast the state’s 20 Electoral College votes for the incumbent. “I just don’t think this is the right time for me to be discussing those strategies and approaches,” Tabas told Gellman, but direct appointment of electors “is one of the options. It is one of the available legal options set forth in the Constitution.”
If two sets of electors were sent to Washington, the U.S. House and Senate would determine whether to accept electors from Pennsylvania chosen by the Republican legislature, or electors certified by Pennsylvania’s Democratic governor, Tom Wolf.
Working in the same vein as Foley, Larry Diamond, a political scientist and senior fellow at Stanford’s Hoover Institution, described by email what he called “by far the most dangerous scenario”:
Trump is leading when the in-person votes are counted on election night. If you just stopped counting at midnight on election night, Trump would be the winner, even though many millions of mail-in ballots in key swing states are still to be counted.
When the “blue wave comes in,” Diamond continues,
and gives Biden a victory in states with more than 270 electoral votes, Trump cries foul and demands that the Republican legislators in states like Pennsylvania, maybe Florida, give him their electoral votes, even though he didn’t win according to the vote count.
In a Sept. 8 Atlantic essay, Diamond and Foley, writing together, warn of the possibility that
Jan. 20 could arrive with Vice President Pence, in his role as Senate president, insisting that President Trump has been re-elected to a second term — while at the same time, Speaker Pelosi insists that there is no president-elect, because the process remains deadlocked, and hence she will assume the role of acting president until the counting of electoral votes from the states resumes with the disputed state resolved.
Richard Hasen, a professor of law and political science at the University of California-Irvine, emailed his version of a worst-case situation: “If it turns out to be really close and it comes down to Pennsylvania, God help the United States of America.”
Hasen warns that Pennsylvania is expected to be one of the last states to complete the tabulation of votes, and, in that case, Pennsylvania’s 20 Electoral College votes could determine the winner. If that is the case, Hasen says,
It will be trench warfare over ballots and a president seeking to cast major doubt over the legitimacy of the election even without evidence of major problems. It would be much worse than Bush v. Gore because of Trump’s rhetoric, because we are more polarized and many see this election in existential terms, and because internal and external forces can use social media to spread disinformation and fan the flames of hate.
Barry Burden, a political scientist at the University of Wisconsin-Madison, shared Hasen’s worries, outlining in an email what he views as “the most likely scenario”:
President Trump falsely condemns the election as fraudulent and illegal. He will build on his allegations that millions of noncitizens voted illegally in 2016 to claim that millions of absentee ballots were submitted in duplicate or by foreign governments, neither of which will be true. He will intensify his rants against the supposed fraud as Biden’s lead in the popular vote grows in the days following the election.
A flood of lawsuits “on postal delays, questions over the matching of voter signatures on absentee ballots, and lines at the polls” will likely “cause suspicious voters to think something is afoot,” Burden wrote:
This suspicion along with the possibility of a longer vote count this year will make it even more tempting for Trump and other politicians to begin making false allegations on election night.
Richard Pildes, a law professor at N.Y.U., pointed out in an email that policymakers who support extended vote processing deadlines “face a trade-off. The longer the permitted time, the more ballots will be valid. But the longer that time, the longer it will take for the final result to be known.”
In more normal elections, Pildes continued,
that would not pose any risk, but in our climate of existential politics, partisans all-too-prepared to believe (or charge) that elections are being manipulated, and a social-media environment poised to heap fuel onto the fire, the longer after Election Day any significant changes in vote totals takes place, the greater the risk that the side that loses will cry that the election has been stolen.
Going back to Nov. 3rd, if Trump fears he is headed for defeat, the critical period during which he would have to throw the first of many monkey wrenches into the process could be the late hours after polls close and through the early hours of the 4th — at the height of what election experts call “the red mirage” — the period of time in which those votes cast in person, who are disproportionately Republican, outnumber those not-yet-counted votes cast by mail or at off-site ballot boxes, disproportionately Democratic — a period of time known as “the blue shift.”
If, as many of these experts expect, a “red mirage” emerges as the polls shut on Election Day, Trump could, at that moment, have the opportunity to declare victory and set in motion the workings of the federal government, especially the Department of Justice under Attorney General William Barr.
Nathaniel Persily, a law professor at Stanford. described this period to Politico Magazine as “the fog of war in the 24 hours after the polls close” when “there’s going to be a competition to explain what’s taking place by the candidates, the news media, perhaps even foreign actors.”
Barr has in fact already begun setting the stage to challenge the results, to foster distrust of the outcome and to dispute votes cast by mail.
Last month, Barr told CNN that mailed-in balloting “is very open to fraud and coercion. It’s reckless and dangerous, and people are playing with fire.”
At a news conference in Phoenix on Sept. 10, Barr sowed further confusion, contending that since many “ballots are mailed out profligately” and many are misdirected “because of inaccuracy of voting lists. There are going to be ballots floating around.”
Any drive to seriously contest the election would have to be conducted during what Gellman described as the Interregnum, the 79 days between the Nov 3 election and January 20, Inauguration Day.
During this period, there are four key dates: Dec. 14, when the electors meet in each state to cast their ballots; Jan. 3, when the new House and Senate are sworn in; Jan. 6, when the two branches meet to certify the vote of the Electoral College and Jan. 20 when the president is sworn in.
What follows is based on Foley’s description in an email of how Trump could attempt to manipulate the outcome during the interregnum.
States with Republican legislatures and Democratic governors — like Pennsylvania, Michigan or Wisconsin — could end up submitting two slates of electors to Congress, one chosen by the Republican legislatures that reject enough mailed-in ballots to give Trump the win, the other by the Democratic governors of these states, who would certify slates backing Biden.
Insofar as such challenges could end up before the Supreme Court, Trump would have the advantage of a six-member conservative majority — with the swearing in this week of Amy Coney Barrett — a majority that could survive the possible defection of Chief Justice John G. Roberts Jr.
I asked Persily about Barrett’s role in future litigation.
“This is both the most important question and the one most impossible to answer,” Persily replied, adding that “the Republicans clearly think their chances with her on the court are better than without her.”
If any of this come to pass, Barrett’s role in election litigation could quickly become apparent in the way the Supreme Court approaches a renewed attempt by the Republican Party of Pennsylvania to overturn a state Supreme Court ruling. The ruling requires election officials to count mail-in ballots postmarked on Election Day or before but received as late as Nov. 6. These ballots would likely favor Democrats.
In an earlier 4-4 decision, with Roberts joining the three liberal Justices, the court let the Pennsylvania Supreme Court ruling stand.
On Oct. 23, the Pennsylvania state Republican Party asked the Supreme Court to take up the case again on its merits. If the court does so — back at full membership with Barrett potentially positioned to cast the tiebreaking vote — it raises the possibility that the outcome could once again be in the hands of the Supreme Court, just as it was in Bush v. Gore in 2000. The election would have to be close for this scenario to develop, but it is not impossible.
An eventuality along these lines would play out against a background of grass roots mobilization on both the right and left that heightens the prospect of civic disruption. If Trump were to take advantage of chaos on Election Day and in its aftermath to claim victory, there is the near certain prospect of protests that would make this past summer’s Black Lives Matter demonstrations look mild in comparison.
The radical right is currently the greatest focus of a potential for disruption.
The Armed Conflict Location & Event Data Project, a liberal nonprofit group, issued a report earlier this month, “STANDING BY: Right-Wing Militia Groups & the US Election,” that “maps a subset of the most active right-wing militias” including the Three Percenters, the Oath Keepers, the Light Foot Militia, the Civilian Defense Force, and the“street movements that are highly active in brawls,” including the Proud Boys and Patriot Prayer.
The Armed Conflict Location Group report warns:
Militia groups and other armed nonstate actors pose a serious threat to the safety and security of American voters. Throughout the summer and leading up to the general election, these groups have become more assertive, with activities ranging from intervening in protests to organizing kidnapping plots targeting elected officials.
The group’s report noted that both the Department of Homeland Security and the Federal Bureau of Investigation
have specifically identified extreme far right-wing and racist movements as a primary risk factor heading into November, describing the election as a potential ‘flash point’ for reactionary violence.
At the same time, liberal groups have not been sitting on their hands.
A relatively moderate entity called Holdtheline has issued “A Guide to Defending Democracy” by Hardy Merriman, Ankur Asthana, Marium Navid and Kifah Shah, all active in leftist advocacy groups. The guide warns that “we are witnessing ongoing actions that destroy our democracy bit by bit.”
The guide pointedly stresses nonviolence and describes two categories of protest, “acts of commission” including engaging in demonstrations, marches, or nonviolent blockades,” and “acts of omission,” including
strikes of all kinds; deliberate work slowdowns; boycotts of all kinds; divestment; refusing to pay certain fees, bills, taxes, or other costs; or refusal to observe certain expected social norms or behaviors.
A second liberal group, Choosing Democracy, is preparing for nonviolent protest in the event of “an undemocratic power grab — a coup.” The group asks supporters to take the following pledge:
We will vote.
We will refuse to accept election results until all the votes are counted.
We will nonviolently take to the streets if a coup is attempted.
If we need to, we will shut down this country to protect the integrity of the democratic process.
As the Black Lives Matter protests in Portland, Seattle, New York and other cities demonstrated last summer, in large scale protests it can be difficult to enforce a commitment to nonviolence.
Not only that, but the federal indictment of Ivan Harrison Hunter, a member of the Boogaloo Bois, on charges that he “discharged 13 rounds from an AK-47 style semiautomatic rifle into the Minneapolis Police Department’s Third Precinct building” suggests that in the event of protests from the left, right-wing groups will attempt to foster and encourage violence.
Police department across the nation are gearing up to deal with violence on Election Day and in its aftermath.
“It’s fair to say the police are preparing in ways they never would have had to for Election Day,” Chuck Wexler, director of the Police Executive Research Forum, a Washington-based think tank, told Time magazine. Andrew Walsh, a deputy chief of the Las Vegas Metropolitan Police Department, told The Washington Post, “I don’t think we’ve seen anything like this in modern times.”
All of this — the political and legal battles, the possibility of civic strife — raises the question: Why have politics and elections become such sources of volatility?
In an essay in The Washington Post on Oct. 23, Foley sought to explain why an unprecedented Trump-Republican refusal to accept the outcome of the 2020 election is within the bounds of possibility:
The notion of a state’s elected politicians acting to subvert the will of their own citizens should be unthinkable. But that’s, in effect, what gerrymandering is. Elections are supposed to be held for the benefit of voters so that the public obtains the officeholders it wants. Gerrymandering is premised on the contrary approach: letting incumbent politicians manipulate the electoral system to defy the popular will for partisan advantage.
In state after state, the Republican Party has used gerrymandering to stay in power, winning majorities with fewer votes than cast for Democrats.
“Soon,” Foley wrote, “the country may be forced to confront the question of whether this anti-democracy attitude has so taken hold that it could actually undo a presidential election.”
A large part of the answer to Foley’s question lies in what the Republican Party has become over the past two decades, as the once ascendant conservative coalition has struggled to remain viable.
The reality is that in order to remain competitive, the party has been forced to adopt policies and strategies designed to restrict and constrain the majority electorate: voter suppression, gerrymandering, dependence on an Electoral College that favors small, rural states, and legislation designed to weaken and defund the labor movement.
In this context, it’s not a surprise that Trump and his partisan allies would be guided by an “anti-democracy attitude” that “has so taken hold that it could actually undo a presidential election.” What is more surprising is that it possibly could succeed.
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