Trump 31 Would Vote for Him Again
Illustrations by Guillem Casasús / Renderings by Borja Alegre
This article was published online on September 23, 2020.
There is a cohort of shut observers of our presidential elections, scholars and lawyers and political strategists, who find themselves in the uneasy position of intelligence analysts in the months before 9/11. As November 3 approaches, their screens are blinking red, alight with warnings that the political organisation does not know how to blot. They see the obvious signs that nosotros all meet, but they also know subtle things that nearly of us practice not. Something dangerous has hove into view, and the nation is lurching into its path.
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The danger is not merely that the 2020 election will bring discord. Those who fear something worse take turbulence and controversy for granted. The coronavirus pandemic, a reckless incumbent, a deluge of postal service-in ballots, a vandalized Postal Service, a resurgent effort to suppress votes, and a trainload of lawsuits are bearing down on the nation's creaky electoral machinery.
Something has to give, and many things will, when the time comes for casting, canvassing, and certifying the ballots. Anything is possible, including a landslide that leaves no doubt on Election Night. But even if one side takes a commanding early on lead, tabulation and litigation of the "overtime count"—millions of mail service-in and provisional ballots—could keep the outcome unsettled for days or weeks.
AtlanticLIVE: The Election That Could Intermission America
Barton Gellman spoke with Adrienne LaFrance about what could happen if the vote is close, live on September 24.
If nosotros are lucky, this fraught and dysfunctional election cycle will attain a conventional stopping point in fourth dimension to run into crucial deadlines in Dec and January. The contest volition be decided with sufficient dominance that the losing candidate will be forced to yield. Collectively we will accept made our option—a messy one, no dubiousness, but clear enough to arm the president-elect with a mandate to govern.
Equally a nation, we have never failed to clear that bar. But in this ballot year of plague and recession and catastrophized politics, the mechanisms of conclusion are at meaningful risk of breaking down. Close students of ballot law and procedure are alert that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative upshot. We have no fail-prophylactic against that cataclysm. Thus the blinking cherry-red lights.
"We could well meet a protracted postelection struggle in the courts and the streets if the results are close," says Richard L. Hasen, a professor at the UC Irvine School of Law and the author of a recent book called Election Meltdown. "The kind of election meltdown we could run across would be much worse than 2000's Bush v. Gore instance."
A lot of people, including Joe Biden, the Autonomous Party nominee, have misconceived the nature of the threat. They frame it as a business organisation, unthinkable for presidents past, that Trump might pass up to vacate the Oval Part if he loses. They generally conclude, equally Biden has, that in that consequence the proper regime "will escort him from the White Firm with great dispatch."
The worst case, however, is not that Trump rejects the election consequence. The worst case is that he uses his power to preclude a decisive issue against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and and then in Congress. He could prevent the germination of consensus about whether there is any consequence at all. He could seize on that uncertainty to hold on to power.
Trump'southward state and national legal teams are already laying the background for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Solar day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president'south term in office "shall end" at apex on January 20, merely ii men could show up to be sworn in. Ane of them would get in with all the tools and power of the presidency already in hand.
"We are not prepared for this at all," Julian Zelizer, a Princeton professor of history and public affairs, told me. "We talk about it, some worry about it, and nosotros imagine what it would exist. Simply few people have actual answers to what happens if the mechanism of republic is used to prevent a legitimate resolution to the election."
Nineteen summers ago, when counterterrorism analysts warned of a coming attack by al‑Qaeda, they could only guess at a date. This year, if election analysts are right, nosotros know when the trouble is likely to come. Call it the Interregnum: the interval from Election Day to the next president'due south swearing-in. It is a temporal no-man'south-country between the presidency of Donald Trump and an uncertain successor—a 2nd term for Trump or a first for Biden. The transfer of power we ordinarily accept for granted has several intermediate steps, and they are delicate.
The Interregnum comprises 79 days, carefully divisional past law. Among them are "the first Monday after the second Midweek in December," this year December 14, when the electors run into in all 50 states and the District of Columbia to bandage their ballots for president; "the 3d mean solar day of January," when the newly elected Congress is seated; and "the sixth day of January," when the House and Senate meet jointly for a formal count of the electoral vote. In most modern elections these have been pro forma milestones, irrelevant to the outcome. This year, they may non be.
"Our Constitution does non secure the peaceful transition of power, merely rather presupposes it," the legal scholar Lawrence Douglas wrote in a contempo book titled just Will He Become? The Interregnum we are about to enter volition be accompanied past what Douglas, who teaches at Amherst, calls a "perfect storm" of adverse conditions. We cannot turn abroad from that storm. On November 3 we canvas toward its middle mass. If we sally without trauma, it will not be an unbreakable ship that has saved u.s.a..
Let us not hedge about one thing. Donald Trump may win or lose, but he will never concede. Not under any circumstance. Not during the Interregnum and non afterward. If compelled in the end to vacate his office, Trump volition insist from exile, as long as he draws breath, that the contest was rigged.
Trump'due south invincible delivery to this stance will be the most of import fact about the coming Interregnum. Information technology will deform the proceedings from beginning to stop. We accept not experienced annihilation similar it earlier.
Maybe you hesitate. Is it a fact that if Trump loses, he volition pass up defeat, come what may? Practice nosotros know that? Technically, y'all experience obliged to point out, the proposition is framed in the future provisional, and prophecy is no human's gift, and so forth. With all due respect, that is pettifoggery. Nosotros know this homo. Nosotros cannot afford to pretend.
Trump'due south behavior and declared intent exit no room to suppose that he volition have the public's verdict if the vote is going confronting him. He lies prodigiously—to manipulate events, to secure reward, to dodge accountability, and to ward off injury to his pride. An election produces the perfect distillate of all those motives.
Pathology may exert the strongest influence on Trump's choices during the Interregnum. Well-supported arguments, some of them in this magazine, have fabricated the example that Trump fits the diagnostic criteria for psychopathy and narcissism. Either disorder, past its medical definition, would return him all but incapable of accepting defeat.
Conventional commentary has trouble facing this consequence squarely. Journalists and opinion makers feel obliged to add disclaimers when asking "what if" Trump loses and refuses to concede. "The scenarios all seem far-fetched," Pol wrote, quoting a source who compared them to science fiction. Former U.S. Chaser Barbara McQuade, writing in The Atlantic in February, could not bring herself to treat the risk as real: "That a president would defy the results of an election has long been unthinkable; it is now, if not an actual possibility, at the very to the lowest degree something Trump'due south supporters joke about."
Only Trump's supporters aren't the simply people who think extraconstitutional thoughts aloud. Trump has been asked straight, during both this campaign and the last, whether he will respect the ballot results. He left his options brazenly open. "What I'thousand saying is that I will tell you at the fourth dimension. I'll keep you in suspense. Okay?" he told moderator Chris Wallace in the third presidential debate of 2016. Wallace took another crack at him in an interview for Fox News this by July. "I have to run into," Trump said. "Wait, you—I accept to see. No, I'one thousand non going to just say yes. I'm not going to say no."
How will he decide when the fourth dimension comes? Trump has answered that, really. At a rally in Delaware, Ohio, in the closing days of the 2016 entrada, he began his performance with a bespeak of breaking news. "Ladies and gentlemen, I want to brand a major announcement today. I would like to hope and pledge to all of my voters and supporters, and to all the people of the United States, that I will totally accept the results of this great and historic presidential ballot." He paused, then fabricated 3 sharp thrusts of his forefinger to punctuate the next words: "If … I … win!" Only then did he stretch his lips in a simulacrum of a grin.
The question is not strictly hypothetical. Trump's respect for the ballot box has already been tested. In 2016, with the presidency in manus, having won the Electoral College, Trump baldly rejected the certified tallies that showed he had lost the popular vote by a margin of 2,868,692. He claimed, baselessly but not coincidentally, that at least 3 million undocumented immigrants had bandage fraudulent votes for Hillary Clinton.
All of which is to say that in that location is no version of the Interregnum in which Trump congratulates Biden on his victory. He has told united states and then. "The only way they can take this election away from the states is if this is a rigged ballot," Trump said at the Republican National Convention on August 24. Unless he wins a bona fide victory in the Balloter College, Trump's refusal to concede—his mere denial of defeat—will have cascading furnishings.
The ritual that marks an ballot'south end took its contemporary form in 1896. On the Thursday evening after polls closed that year, unwelcome news reached the Democratic presidential nominee, William Jennings Bryan. A acceleration from Senator James Grand. Jones, the chair of the Autonomous National Committee, informed him that "sufficient was known to make my defeat certain," Bryan recalled in a memoir.
He composed a telegram to his Republican opponent, William McKinley. "Senator Jones has only informed me that the returns indicate your ballot, and I hasten to extend my congratulations," Bryan wrote. "We have submitted the issue to the American people and their will is constabulary."
Afterwards Bryan, concession became a civic duty, performed by telegram or telephone phone call and so by public speech. Al Smith brought the concession speech to radio in 1928, and it migrated to television soon afterwards.
Like other rituals, concessions developed a liturgy. The defeated candidate comes out first. He thanks supporters, declares that their cause volition live on, and acknowledges that the other side has prevailed. The victor begins his own remarks by honoring the surrender.
Concessions employ a grade of words that linguists call performative speech. The words practice not draw or denote an act; the words themselves are the act. "The concession speech, and then, is not only a report of an election result or an admission of defeat," the political scientist Paul East. Corcoran has written. "Information technology is a constitutive enactment of the new president's authority."
In bodily war, non the political kind, concession is optional. The winning side may take past forcefulness what the losing side refuses to give up. If the weaker party will not sue for peace, its ramparts may be breached, its headquarters razed, and its leaders taken captive or put to expiry. There are places in the world where political combat still ends that fashion, but not here. The loser's concession is therefore hard to supervene upon.
Consider the 2000 election, which may announced at start glance to demonstrate otherwise. Al Gore conceded to George Due west. Bush-league on Ballot Night, so withdrew his concession and fought a recount battle in Florida until the Supreme Court shut it down. Information technology is ordinarily said that the Court'south five–4 ruling decided the contest, but that'southward not quite correct.
The Court handed downwardly its ruling in Bush 5. Gore on December 12, six days earlier the Electoral College would convene and weeks earlier Congress would certify the results. Even with canvassing halted in Florida, Gore had the constitutional means to fight on, and some advisers urged him to do so. If he had brought the dispute to Congress, he would take held high ground as the Senate's presiding officer.
Non until Gore addressed the nation on December 13, the day after the Court'southward decision, did the contest truly end. Speaking as a human being with unexpended ammunition, Gore laid down his artillery. "I take the finality of this issue, which will exist ratified next Monday in the Electoral College," he said. "And this night, for the sake of our unity as a people and the forcefulness of our commonwealth, I offering my concession."
Nosotros have no precedent or process to end this ballot if Biden seems to carry the Electoral College only Trump refuses to concede. We will take to invent one.
Trump is, by some measures, a weak disciplinarian. He has the oral cavity but not the muscle to work his volition with balls. Trump denounced Special Counsel Robert Mueller but couldn't fire him. He accused his foes of treason merely couldn't jail them. He has aptitude the bureaucracy and flouted the law but not cleaved free altogether of their restraints.
A proper despot would not risk the inconvenience of losing an ballot. He would gear up his victory in advance, avoiding the need to overturn an incorrect outcome. Trump cannot practise that.
But he'south not powerless to skew the proceedings—first on Ballot Day and so during the Interregnum. He could disrupt the vote count where it's going desperately, and if that does not work, try to bypass it altogether. On Election Day, Trump and his allies tin can begin past suppressing the Biden vote.
At that place is no truth to exist constitute in dancing effectually this point, either: Trump does not want Black people to vote. (He said as much in 2017—on Martin Luther Male monarch Mean solar day, no less—to a voting-rights group co-founded by Rex, according to a recording leaked to Political leader.) He does not want young people or poor people to vote. He believes, with reason, that he is less probable to win reelection if turnout is loftier at the polls. This is not a "both sides" phenomenon. In present-mean solar day politics, nosotros accept ane party that consistently seeks advantage in depriving the other party's adherents of the right to vote.
Just nether a year ago, Justin Clark gave a airtight-door talk in Wisconsin to a select audience of Republican lawyers. He idea he was speaking privately, but someone had brought a recording device. He had a lot to say almost Election Day operations, or "EDO."
At the fourth dimension, Clark was a senior lieutenant with Trump'due south reelection campaign; in July, he was promoted to deputy campaign manager. "Wisconsin'due south the state that is going to tip this 1 way or the other … So it makes EDO really, really, really important," he said. He put the mission bluntly: "Traditionally it's always been Republicans suppressing votes … [Democrats'] voters are all in 1 office of the state, so let's offset playing law-breaking a little bit. And that's what y'all're going to see in 2020. That's what's going to be markedly unlike. It's going to be a much bigger program, a much more than aggressive programme, a much meliorate-funded program, and we're going to demand all the assistance we tin can get." (Clark afterwards claimed that his remarks had been misconstrued, but his explanation fabricated no sense in context.)
Of all the favorable signs for Trump's Election Solar day operations, Clark explained, "commencement and foremost is the consent prescript's gone." He was referring to a court social club forbidding Republican operatives from using any of a long listing of voter-purging and intimidation techniques. The expiration of that order was a "huge, huge, huge, huge deal," Clark said.
His audience of lawyers knew what he meant. The 2020 presidential ballot will exist the first in 40 years to take place without a federal judge requiring the Republican National Commission to seek blessing in advance for whatsoever "ballot security" operations at the polls. In 2018, a federal judge allowed the consent decree to expire, ruling that the plaintiffs had no proof of recent violations by Republicans. The consent decree, by this logic, was not needed, considering it worked.
The lodge had its origins in the New Jersey gubernatorial election of 1981. According to the district court's opinion in Autonomous National Committee v. Republican National Committee, the RNC allegedly tried to intimidate voters past hiring off-duty law-enforcement officers every bit members of a "National Ballot Security Job Force," some of them armed and conveying 2-way radios. According to the plaintiffs, they stopped and questioned voters in minority neighborhoods, blocked voters from entering the polls, forcibly restrained poll workers, challenged people'southward eligibility to vote, warned of criminal charges for casting an illegal ballot, and generally did their all-time to affright voters away from the polls. The ability of these methods relied on well-founded fears amidst people of color well-nigh contact with police.
This year, with a judge no longer watching, the Republicans are recruiting 50,000 volunteers in 15 contested states to monitor polling places and challenge voters they deem suspicious-looking. Trump called in to Fox News on August twenty to tell Sean Hannity, "We're going to accept sheriffs and we're going to accept constabulary enforcement and nosotros're going to have, hopefully, U.S. attorneys" to keep close sentinel on the polls. For the starting time time in decades, according to Clark, Republicans are complimentary to combat voter fraud in "places that are run by Democrats."
Voter fraud is a fictitious threat to the upshot of elections, a pretext that Republicans employ to thwart or discard the ballots of likely opponents. An authoritative report past the Brennan Center for Justice, a nonpartisan think tank, calculated the charge per unit of voter fraud in 3 elections at between 0.0003 pct and 0.0025 percent. Another investigation, from Justin Levitt at Loyola Law School, turned up 31 apparent allegations of voter impersonation out of more than 1 billion votes cast in the United States from 2000 to 2014. Judges in voting-rights cases have made comparable findings of fact.
Nonetheless, Republicans and their allies have litigated scores of cases in the proper noun of preventing fraud in this year's election. State by country, they have sought—with some success—to purge voter rolls, tighten rules on provisional votes, uphold voteridentification requirements, ban the utilise of ballot drop boxes, reduce eligibility to vote by mail, discard mail-in ballots with technical flaws, and outlaw the counting of ballots that are postmarked by Election Day but make it afterward. The intent and effect is to throw away votes in large numbers.
These legal maneuvers are drawn from an erstwhile Republican playbook. What'south dissimilar during this bike, aside from the ferocity of the efforts, is the focus on voting by mail. The president has mounted a relentless set on on postal balloting at the verbal moment when the coronavirus pandemic is driving tens of millions of voters to cover information technology.
This twelvemonth'south presidential election will see voting by mail service on a calibration unlike whatever earlier—some states are anticipating a tenfold increase in postal balloting. A l-land survey past The Washington Post found that 198 one thousand thousand eligible voters, or at least 84 percent, will have the pick to vote by mail.
Trump has denounced mail-in voting often and urgently, airing fantastical nightmares. One day he tweeted, "mail-in voting will lead to massive fraud and abuse. information technology will also atomic number 82 to the end of our great republican party. we can never let this tragedy befall our nation." Another solar day he pointed to an imaginary—and easily debunked—scenario of forgery from abroad: "rigged 2020 election: millions of mail-in ballots will exist printed past foreign countries, and others. it will be the scandal of our times!"
Past late summertime Trump was declaiming confronting mail-in voting an average of nearly four times a 24-hour interval—a step he had reserved in the past for existential dangers such as impeachment and the Mueller investigation: "Very dangerous for our state." "A catastrophe." "The greatest rigged ballot in history."
Summer likewise brought reports that the U.S. Postal Service, the government's nearly popular agency, was besieged from within by Louis DeJoy, Trump's new postmaster general and a major Republican donor. Service cuts, upper-direction restructuring, and chaotic operational changes were producing long delays. At 1 sorting facility, the Los Angeles Times reported, "workers cruel so far behind processing packages that by early August, gnats and rodents were swarming around containers of rotted fruit and meat, and babe chicks were dead inside their boxes."
In the proper name of efficiency, the Postal Service began decommissioning 10 per centum of its mail-sorting machines. Then came give-and-take that the service would no longer treat ballots every bit showtime-class mail unless some states about tripled the postage they paid, from 20 to 55 cents an envelope. DeJoy denied any intent to wearisome down voting past mail, and the Mail service withdrew the plan under fire from critics.
If there were doubts nigh where Trump stood on these changes, he resolved them at an August 12 news conference. Democrats were negotiating for a $25 billion increase in postal funding and an boosted $3.half-dozen billion in election assistance to states. "They don't have the money to do the universal mail-in voting. So therefore, they can't do it, I guess," Trump said. "It's very simple. How are they going to do it if they don't have the money to exercise it?"
What are we to brand of all this?
In part, Trump'due south hostility to voting by mail is a reflection of his belief that more than voting is bad for him in general. Democrats, he said on Flim-flam & Friends at the stop of March, desire "levels of voting that, if yous ever agreed to it, yous'd never have a Republican elected in this land once more."
Some Republicans see Trump's vendetta equally self-defeating. "Information technology to me appears entirely irrational," Jeff Timmer, a erstwhile executive director of the Michigan Republican Party, told me. "The Trump campaign and RNC and by fiat their state party organizations are engaging in suppressing their own voter turnout," including Republican seniors who accept voted by mail for years.
But Trump'southward crusade against voting by mail is a strategically sound expression of his plan for the Interregnum. The president is not actually trying to prevent mail-in balloting altogether, which he has no means to do. He is discrediting the exercise and starving information technology of resource, signaling his supporters to vote in person, and preparing the ground for post–Ballot Night plans to contest the results. Information technology is the strategy of a man who expects to be outvoted and ways to hobble the count.
Voting by mail does non favor either party "during normal times," according to a team of researchers at Stanford, just that phrase does a lot of piece of work. Their findings, which were published in June, did non take into business relationship a president whose words lonely could produce a partisan skew. Trump'due south systematic predictions of fraud announced to take had a powerful effect on Republican voting intentions. In Georgia, for example, a Monmouth University poll in late July found that sixty percentage of Democrats simply only 28 pct of Republicans were likely to vote by mail. In the battlefield states of Pennsylvania and Northward Carolina, hundreds of thousands more Democrats than Republicans have requested post-in ballots.
Trump, in other words, has created a proxy to distinguish friend from foe. Republican lawyers around the state will detect this useful when litigating the count. Playing by the numbers, they can treat ballots cast past mail equally hostile, just equally they do ballots cast in person by urban and college-boondocks voters. Those are the ballots they volition contest.
The boxing space of the Interregnum, if trends hold true, will be shaped past a phenomenon known as the "bluish shift."
Edward Foley, an Ohio Land professor of constitutional law and a specialist in election constabulary, pioneered inquiry on the bluish shift. He institute a previously united nationsremarked-upon blueprint in the overtime count—the canvass later Election Night that tallies tardily-reporting precincts, unprocessed absentee votes, and provisional ballots cast by voters whose eligibility needed to be confirmed. For well-nigh of American history, the overtime count produced no predictably partisan effect. In any given election yr, some states shifted red in the canvass later Election Day and some shifted blue, just the shifts were seldom big enough to matter.
Two things began to modify virtually 20 years ago. The overtime count got bigger, and information technology trended more and more blue. In an updated paper this yr, Foley and his co-author, Charles Stewart III of MIT, said they could non fully explain why the shift favors Democrats. (Some factors: Urban returns take longer to count, and almost provisional ballots are cast past young, low-income, or mobile voters, who lean bluish.) During overtime in 2012, Barack Obama strengthened his winning margins in swing states similar Florida (with a cyberspace increase of 27,281 votes), Michigan (60,695), Ohio (65,459), and Pennsylvania (26,146). Obama would have won the presidency anyway, simply shifts of that magnitude could take inverse the outcomes of many a closer contest. Hillary Clinton picked up tens of thousands of overtime votes in 2016, but not enough to relieve her.
The blue shift has withal to decide a presidential election, but it upended the Arizona Senate race in 2018. Republican Martha McSally seemed to accept victory in her grasp with a lead of 15,403 votes the day after Election Day. Canvassing in the days that followed swept the Democrat, Kyrsten Sinema, into the Senate with "a gigantic overtime gain of 71,303 votes," Foley wrote.
Information technology was Florida, however, that seized Trump'southward attention that year. On Election Dark, Republicans were leading in tight contests for governor and U.South. senator. Equally the blue shift took effect, Ron DeSantis watched his lead shrink by 18,416 votes in the governor's race. Rick Scott'southward Senate margin brutal by xx,231. By early on morning on Nov 12, half dozen days later on Election Twenty-four hour period, Trump had seen enough. "The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed upwards out of nowhere, and many ballots are missing or forged," he tweeted, baselessly. "An honest vote count is no longer possible—ballots massively infected. Must become with Election Night!"
Trump was panicked enough by the blueish shift in somebody else'south election to fabricate allegations of fraud. In this ballot, when his own proper noun is on the ballot, the blue shift could be the largest ever observed. Mail-in votes require more time to count even in a normal year, and this yr there volition be tens of millions more of them than in any election before. Many states forestall the processing of early-arriving post ballots before Election Day; some allow late-arriving ballots to be counted.
Trump's instinct as a spectator in 2018—to stop the count—looks more similar strategy this year. "There are results that come in Ballot Night," a legal adviser to Trump'southward national entrada, who would not agree to exist quoted by name, told me. "There's an expectation in the country that in that location will be winners and losers called. If the Ballot Nighttime results go changed considering of the ballots counted after Election Day, you have the bones ingredients for a shitstorm."
There is no "if" virtually it, I said. The count is bound to change. "Aye," the adviser agreed, and canvassing will produce more votes for Biden than for Trump. Democrats will insist on dragging out the sail for as long as it takes to count every vote. The resulting conflict, the adviser said, will be on their heads.
"They are asking for it," he said. "They're trying to maximize their electoral turnout, and they think in that location are no downsides to that." He added, "In that location will be a count on Election Night, that count will shift over time, and the results when the final count is given will be challenged as being inaccurate, fraudulent—pick your discussion."
The worst case for an orderly count is likewise considered by some election modelers the likeliest: that Trump will jump ahead on Ballot Night, based on in-person returns, but his pb will slowly give manner to a Biden victory as mail-in votes are tabulated. Josh Mendelsohn, the CEO of the Democratic data-modeling business firm Hawkfish, calls this scenario "the red mirage." The turbulence of that interval, fed by street protests, social media, and Trump's desperate struggles to lock in his atomic number 82, tin only be imagined. "Whatsoever scenario that you come up up with volition not be as weird as the reality of information technology," the Trump legal adviser said.
Ballot lawyers speak of a "margin of litigation" in close races. The tighter the count in early reports, and the more votes remaining to count, the greater the incentive to fight in court. If at that place were such a matter equally an Election Ambassador'due south Prayer, as some of them say merely one-half in jest, it would go, "Lord, allow there be a landslide."
Could a landslide spare us conflict in the Interregnum? In theory, yes. Merely the odds are not promising.
It is difficult to imagine a Trump pb so immense on Election Nighttime that it places him out of Biden's reach. Unless the swing states manage to count nearly of their post-in ballots that nighttime, which will be all but incommunicable for some of them, the expectation of a blue shift will keep Biden fighting on. A really large Biden lead on Election Night, on the other hand, could get out Trump without plausible hope of catching up. If this happens, nosotros may run across it first in Florida. But this scenario is awfully optimistic for Biden, considering the GOP reward among in-person voters, and in any case Trump will not concede defeat. This early on in the Interregnum, he will accept applied options to go on the contest live.
Both parties are bracing for a torrent of emergency motions in state and federal courts. They accept already been skirmishing from courthouse to courthouse all year in more than than forty states, and Election Day volition begin a culminating phase of legal combat.
Mail service-in ballots will have plenty of flaws for the Trump lawyers to seize upon. Voting by postal service is more complicated than voting in person, and technical errors are commonidentify at each step. If voters supply a new address, or if they write a different version of their proper noun (for example, by shortening Benjamin to Ben), or if their signature has changed over the years, or if they print their proper noun on the signature line, or if they fail to seal the ballot inside an inner security envelope, their votes may not count. With in-person voting, a poll worker in the precinct can resolve small errors like these, for example by directing a voter to the right signature line, but people voting by postal service may have no opportunity to address them.
During the primaries this spring, Republican lawyers did dry runs for the November vote at county ballot offices around the country. An internal memo prepared by an attorney named J. Matthew Wolfe for the Pennsylvania Republican Party in June reported on i such exercise. Wolfe, forth with another Republican lawyer and a fellow member of the Trump entrada, watched closely merely did non arbitrate as ballot commissioners in Philadelphia canvassed mail-in and provisional votes. Wolfe cataloged imperfections, taking annotation of objections that his party could have raised.
At that place were missing signatures and fractional signatures and signatures placed in the incorrect spot. There were names on the inner security envelopes, which are supposed to exist unmarked, and ballots without security envelopes at all. Some envelopes arrived "without a postmark or with an illegible postmark," Wolfe wrote. (Watch for postmarks to become the hanging chads of 2020.) Some voters wrote their birthdate where a signature date belonged, and others put downwardly "an impossible date, like a engagement after the primary election."
Some of the commissioners' decisions "were articulate violations of the direction in and language of the ballot code," Wolfe wrote. He recommended that "someone connected with the party review each application and each mail ballot envelope" in November. That is exactly the plan.
Legal teams on both sides are planning for simultaneous litigation, on the calibration of Florida during the 2000 election, in multiple battleground states. "My money would be on Texas, Georgia, and Florida" to be trouble spots, Myrna Pérez, the director of voting rights and elections at the Brennan Center, told me.
In that location are endless happenstances in any election for lawyers to exploit. In Montgomery County, Pennsylvania, non far from Wolfe's Philadelphia experiment, the county Republican committee gathered surveillance-style photographs of purportedly suspicious goings-on at a election drop box during the principal. In one sequence, a county employee is described as placing "unsecured ballots" in the trunk of a automobile. In another, a security guard is said to be "disconnecting the generator which supplies power to the security cameras." The photos could hateful anything—it's impossible to tell, out of context—simply they are exactly the kind of ersatz testify that is certain to become viral in the early days of the Interregnum.
The balloter combat will not confine itself to the courtroom. Local election adjudicators can expect to exist named and doxed and pilloried every bit agents of George Soros or antifa. Aggressive crowds of self-proclaimed ballot guardians will exist spoiling to reenact the "Brooks Brothers anarchism" of the Bush v. Gore Florida recount, when demonstrators paid by the Bush entrada staged a vehement protest that physically prevented canvassers from completing a recount in Miami-Dade Canton.
Things like this have already happened, albeit on a smaller scale than we tin expect in November. With Trump we must likewise enquire: What might a ruthless incumbent practise that has never been tried before?
Suppose that caravans of Trump supporters, adorned in 2d Amendment accessories, converge on big-city polling places on Election Day. They have come, they say, to investigate reports on social media of voter fraud. Counterprotesters arrive, fistfights break out, shots are fired, and voters flee or cannot reach the polls.
And then suppose the president declares an emergency. Federal personnel in battle dress, staged nearby in advance, move in to restore law and social club and secure the balloting. Amongst ongoing clashes, they stay to monitor the sheet. They close the streets that lead to the polls. They accept custody of uncounted ballots in order to preserve evidence of fraud.
"The president tin can't cancel the election, but what if he says, 'We're in an emergency, and we're shutting down this expanse for a catamenia of time because of the violence taking identify'?" says Norm Ornstein of the American Enterprise Plant. If you lot are in Trump's camp and heedless of boundaries, he said, "what I would expect is you lot're non going to practise one or 2 of these things—you'll do equally many as you can."
There are variations of the nightmare. The venues of intervention could be post offices. The predicate could be a putative intelligence report on forged ballots sent from China.
This is speculation, of class. Simply none of these scenarios is far removed from things the president has already washed or threatened to do. Trump dispatched the National Baby-sit to Washington, D.C., and sent Department of Homeland Security forces to Portland, Oregon, and Seattle during summertime protests for racial justice, on the slender pretext of protecting federal buildings. He said he might invoke the Insurrection Act of 1807 and "deploy the The states war machine" to "Democrat-run cities" in order to protect "life and property." The federal government has trivial basis to intercede during elections, which are largely governed by state constabulary and administered by nearly 10,500 local jurisdictions, only no one familiar with Attorney General Bill Barr'south view of presidential power should dubiousness that he tin find authority for Trump.
With every day that passes later November 3, the president and his allies tin hammer domicile the bulletin that the legitimate tabulation is over and the Democrats are refusing to honor the results. Trump has been flogging this equus caballus already for months. In July he tweeted, "Must know Election results on the night of the Ballot, not days, months, or fifty-fifty years afterwards!"
Does information technology matter what Trump says? It is tempting to liken a vote count to the score at a sporting consequence. The losing passenger vehicle can abdomenache all he likes, but when the umpire makes the call, the game is over. An of import affair to know about the Interregnum is that there is no umpire—no atypical authority who can decide the contest and lay it to residual. There is a series of bottom officiants, each confined in jurisdiction and tangled in opaque rules.
Trump's strategy for this stage of the Interregnum will be a play for time as much every bit a concerted attempt to squelch the count and disqualify Biden votes. The courts may eventually counterbalance in. But by then, the forum of decision may already have moved elsewhere.
The Interregnum allots 35 days for the count and its attendant lawsuits to be resolved. On the 36th day, Dec viii, an important borderline arrives.
At this stage, the actual tabulation of the vote becomes less salient to the event. That sounds as though it can't be right, only it is: The combatants, especially Trump, will at present shift their attention to the engagement of presidential electors.
Dec eight is known as the "rubber harbor" borderline for appointing the 538 men and women who make upwardly the Electoral College. The electors practise not run into until six days later, December 14, just each state must appoint them by the safe-harbor date to guarantee that Congress will accept their credentials. The controlling statute says that if "any controversy or contest" remains after that, then Congress will decide which electors, if any, may cast the state'southward ballots for president.
We are accustomed to choosing electors by popular vote, merely nothing in the Constitution says information technology has to be that manner. Commodity II provides that each state shall engage electors "in such Manner every bit the Legislature thereof may directly." Since the late 19th century, every land has ceded the decision to its voters. Yet, the Supreme Court affirmed in Bush-league five. Gore that a state "tin can take back the power to appoint electors." How and when a land might do so has not been tested for well over a century.
Trump may test this. According to sources in the Republican Political party at the state and national levels, the Trump entrada is discussing contingency plans to bypass ballot results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would inquire state legislators to set aside the pop vote and exercise their power to cull a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators volition experience to act earlier the safety-harbor deadline expires.
To a modern democratic sensibility, discarding the pop vote for partisan proceeds looks uncomfortably like a coup, whatever license may be constitute for it in police force. Would Republicans find that position disturbing enough to resist? Would they cede the election before resorting to such a ploy? Trump'south base would exact a loftier toll for that betrayal, and by this point political party officials would be invested in a narrative of fraud.
The Trump-campaign legal adviser I spoke with told me the push to engage electors would exist framed in terms of protecting the people's will. One time committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended.
"The state legislatures will say, 'All correct, nosotros've been given this ramble power. We don't think the results of our own state are authentic, and then here's our slate of electors that we think properly reflect the results of our country,' " the adviser said. Democrats, he added, accept exposed themselves to this stratagem by creating the conditions for a lengthy overtime.
"If y'all have this notion," the adviser said, "that ballots tin come in for I don't know how many days—in some states a week, 10 days—then that onslaught of ballots just gets pushed back and pushed dorsum and pushed back. And then pick your poison. Is it worse to take electors named past legislators or to have votes received by Election Mean solar day?"
When The Atlantic asked the Trump entrada near plans to circumvent the vote and engage loyal electors, and almost other strategies discussed in the article, the deputy national press secretary did non straight accost the questions. "It's outrageous that President Trump and his team are beingness villainized for upholding the rule of police force and transparently fighting for a free and fair election," Thea McDonald said in an email. "The mainstream media are giving the Democrats a free pass for their attempts to completely uproot the system and throw our election into chaos." Trump is fighting for a trustworthy election, she wrote, "and any argument otherwise is a conspiracy theory intended to muddy the waters."
In Pennsylvania, three Republican leaders told me they had already discussed the directly date of electors amidst themselves, and one said he had discussed it with Trump'southward national campaign.
"I've mentioned it to them, and I hope they're thinking about it besides," Lawrence Tabas, the Pennsylvania Republican Party's chairman, told me. "I just don't recall this is the right time for me to be discussing those strategies and approaches, but [direct engagement of electors] is one of the options. It is ane of the available legal options set forth in the Constitution." He added that everyone's preference is to go a swift and accurate count. "If the process, though, is flawed, and has significant flaws, our public may lose organized religion and confidence" in the election'south integrity.
Jake Corman, the state'south Senate bulk leader, preferred to change the subject, emphasizing that he hoped a make clean vote count would produce a concluding tally on Election Night. "The longer it goes on, the more opinions and the more theories and the more conspiracies [are] created," he told me. If controversy persists equally the rubber-harbor engagement nears, he allowed, the legislature volition accept no pick just to appoint electors. "We don't want to get downwardly that road, but we understand where the police force takes usa, and we'll follow the law."
Republicans control both legislative chambers in the half dozen near closely contested battlefield states. Of those, Arizona and Florida have Republican governors, as well. In Michigan, Due north Carolina, Pennsylvania, and Wisconsin, the governors are Democrats.
Foley, the Ohio State election scholar, has mapped the ripple effects if Republican legislators were to appoint Trump electors in disobedience of the vote in states like Pennsylvania and Michigan. The Democratic governors would respond past certifying the official count, a routine practise of their authority, and they would argue that legislators could not lawfully cull dissimilar electors after the vote had taken place. Their "certificates of observation," dispatched to the National Archives, would say that their states had appointed electors committed to Biden. Each competing set of electors would have the imprimatur of one branch of state government.
In Arizona, Secretary of State Katie Hobbs, who oversees elections, is a Democrat. She could affirm her own power to certify the voting results and forward a slate of Biden electors. Even in Florida, which has unified Republican rule, electors pledged to Biden could meet and certify their own votes in promise of triggering a "controversy or competition" that would leave their state's outcome to Congress. Much the same thing virtually happened during the Florida recount boxing of 2000. Republican Governor Jeb Bush-league certified electors for his blood brother, George W. Bush-league, on November 26 of that year, while litigation of the recount was withal under style. Gore's principal lawyer, Ronald Klain, responded by booking a room in the old Florida capitol edifice for Autonomous electors to bandage rival ballots for Gore. Only Gore'south concession, five days before the Electoral College vote, mooted that programme.
In any of these scenarios, the Balloter College would convene on December fourteen without a consensus on who had legitimate claims to cast the deciding votes.
Rival slates of electors could hold mirror-paradigm meetings in Harrisburg, Lansing, Tallahassee, or Phoenix, casting the same electoral votes on opposite sides. Each slate would transmit its ballots, equally the Constitution provides, "to the seat of the government of the United States, directed to the President of the Senate." The next move would belong to Vice President Mike Pence.
This would be a 18-carat constitutional crisis, the outset but not the last of the Interregnum. "Then we become thrown into a world where annihilation could happen," Norm Ornstein says.
Two men are claiming the presidency. The next occasion to settle the affair is more than than three weeks away.
January vi comes just after the new Congress is sworn in. Control of the Senate will be crucial to the presidency at present.
Pence, as president of the Senate, would hold in his hands ii conflicting electoral certificates from each of several swing states. The Twelfth Amendment says simply this well-nigh what happens adjacent: "The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted."
Notation the passive voice. Who does the counting? Which certificates are counted?
The Trump team would take the position that the constitutional language leaves those questions to the vice president. This ways that Pence has the unilateral power to denote his own reelection, and a second term for Trump. Democrats and legal scholars would denounce the self-dealing and bespeak out that Congress filled the gaps in the Twelfth Amendment with the Electoral Count Act, which provides instructions for how to resolve this kind of dispute. The problem with the instructions is that they are widely considered, in Foley'due south words, to be "convoluted and impenetrable," "confusing and ugly," and "i of the strangest pieces of statutory linguistic communication ever enacted by Congress."
If the Interregnum is a contest in search of an umpire, it now has 535 of them, and a dominion volume that no one is sure how to read. The presiding officer is one of the players on the field.
Foley has produced a 25,000-word study in the Loyola University Chicago Police force Journal that maps out the paths the ensuing fight could take if just one state'due south electoral votes are in play.
If Democrats win back the Senate and hold the House, and so all roads laid out in the Electoral Count Deed pb eventually to a Biden presidency. The opposite applies if Republicans concord the Senate and unexpectedly win back the House. Merely if Congress remains dissever, there are conditions in which no decisive effect is possible—no effect that has clear forcefulness of law. Each party could cite a plausible reading of the rules in which its candidate has won. There is no tie-breaking vote.
How can information technology be that Congress slips into unbreakable deadlock? The law is a labyrinth in these parts, besides intricate to map in a magazine article, but I can sketch one path.
Suppose Pennsylvania alone sends rival slates of electors, and their 20 votes volition decide the presidency.
One reading of the Electoral Count Human action says that Congress must recognize the electors certified by the governor, who is a Democrat, unless the House and Senate agree otherwise. The House will non hold otherwise, and then Biden wins Pennsylvania and the White Firm. Merely Pence pounds his gavel and rules against this reading of the law, instead favoring some other, which holds that Congress must discard both contested slates of electors. The garbled statute can plausibly be read either manner.
With Pennsylvania'due south electors disqualified, 518 balloter votes remain. If Biden holds a narrow atomic number 82 among them, he over again claims the presidency, considering he has "the greatest number of votes," equally the Twelfth Amendment prescribes. But Republicans point out that the same amendment requires "a majority of the whole number of electors." The whole number of electors, Pence rules, is 538, and Biden is brusk of the required 270.
On this statement, no 1 has attained the presidency, and the decision is thrown to the House, with one vote per land. If the current partisan balance holds, 26 out of fifty votes will be for Trump.
Before Pence can move on from Pennsylvania to Rhode Island, which is next on the alphabetical list every bit Congress counts the vote, House Speaker Nancy Pelosi expels all senators from the floor of her chamber. At present Pence is prevented from completing the count "in the presence of" the House, as the Constitution requires. Pelosi announces plans to stall indefinitely. If the count is still incomplete on Inauguration Day, the speaker herself volition become acting president.
Pelosi prepares to exist sworn in on January 20 unless Pence reverses his ruling and accepts that Biden won. Pence does not budge. He reconvenes the Senate in some other venue, with House Republicans squeezing in, and purports to complete the count, making Trump the president-elect. Iii people now accept supportable claims to the Oval Role.
At that place are other paths in the labyrinth. Many atomic number 82 to dead ends.
This is the next constitutional crisis, graver than the i three weeks before, because the law and the Constitution provide for no other authority to consult. The Supreme Courtroom may yet intervene, but it may also shy abroad from another traumatizing encounter with a fundamentally political question.
60-4 days accept passed since the election. Stalemate reigns. Two weeks remain until Inauguration Solar day.
Foley, who foresaw this impasse, knows of no solution. He cannot tell you lot how we avoid it under current law, or how information technology ends. Information technology is not so much, at this point, a question of police force. It is a question of power. Trump has possession of the White House. How far will he push boundaries to continue it, and who will push back? Information technology is the same question the president has posed since the day he took part.
I hoped to gain some insight from a series of exercises conducted this summertime by a grouping of erstwhile elected officials, academics, political strategists, and lawyers. In four days of simulations, the Transition Integrity Project modeled the election and its backwash in an try to observe pivot points where things could fall apart.
They constitute plenty. Some of the scenarios included dueling slates of electors of the kind I have described. In 1 version information technology was the Autonomous governor of Michigan who offset resorted to appointing electors, after Trump ordered the National Guard to halt the vote count and a Trump-friendly guardsman destroyed post-in ballots. John Podesta, Hillary Clinton'due south campaign chair in 2016, led a Biden squad in another scenario that was prepared to follow Trump to the edge of ceremonious war, encouraging three blue states to threaten secession. Norm-breaking begat norm-breaking. (Clinton herself, in an August interview for Showtime's The Circus, caught the same spirit. "Joe Biden should non concede under whatsoever circumstances," she said.)
A corking deal has been written well-nigh the proceedings, including a immediate business relationship from my colleague David Frum. But the coverage had a puzzling gap. None of the stories fully explained how the contest ended. I wanted to know who took the oath of part.
I called Rosa Brooks, a Georgetown professor who co-founded the project. Unnervingly, she had no answers for me. She did not know how the story turned out. In half of the simulations, the participants did not make information technology as far as Inauguration Day.
"We got to points in the scenarios where there was a constitutional impasse, no articulate means of resolution in sight, street-level violence," she said. "I think in one of them we had Trump invoking the Insurrection Act and we had troops in the streets … V hours had gone by and we sort of said, 'Okay, we're done.' " She added: "In one case things were conspicuously off the rails, there was no item do good to seeing exactly how far off they would go."
"Our goal in doing this was to try to identify intervention moments, to identify moments where nosotros could and then look dorsum and say, 'What would have inverse this? What would take kept information technology from getting this bad?' " Brooks said. The project didn't make much progress at that place. No lessons were learned virtually how to restrain a lawless president once a conflict was under way, no alternative moves devised to stave off disaster. "I suppose you lot could say we were in terra incognita: no ane could predict what would happen anymore," Brooks told me in a follow-up email.
The political system may no longer be strong enough to preserve its integrity. Information technology'due south a mistake to take for granted that election boards and state legislatures and Congress are capable of drawing lines that ensure a legitimate vote and an orderly transfer of power. We may have to observe a style to draw those lines ourselves.
There are reforms to consider some other twenty-four hour period, when an election is not upon u.s.a.. Pocket-size ones, like immigration upwardly the murky parts of the Electoral Count Act. Big ones, like doing away with the Electoral College. Obvious ones, like appropriating money to aid cash-starved election authorities upgrade their operations in club to speed up and secure the count on Election Day.
Right now, the best we can exercise is an advertising hoc defense of democracy. Begin by rejecting the temptation to think that this election will deport on equally elections usually do. Something far out of the norm is probable to happen. Probably more than than one thing. Expecting otherwise will dull our reflexes. Information technology will lull us into spurious hope that Trump is tractable to forces that constrain normal incumbents.
If you are a voter, remember about voting in person later all. More than one-half a 1000000 postal votes were rejected in this year'southward primaries, fifty-fifty without Trump trying to suppress them. If you are at relatively low risk for COVID-nineteen, volunteer to work at the polls. If you know people who are open to reason, spread word that it is normal for the results to keep changing after Election Night. If you manage news coverage, anticipate actressconstitutional measures, and position reporters and crews to reply to them. If you are an election administrator, plan for contingencies you never had to imagine before. If you are a mayor, consider how to deploy your police to ward off interlopers with bad intent. If you are a law-enforcement officer, protect the freedom to vote. If you are a legislator, choose non to participate in chicanery. If y'all are a judge on the bench in a battleground state, refresh your acquaintance with election case law. If you lot have a identify in the military concatenation of control, remember your duty to plow aside unlawful orders. If yous are a civil servant, know that your state needs you more ever to do the right thing when you're asked to do otherwise.
Accept agency. An ballot cannot be stolen unless the American people, at some level, acquiesce. One thing Brooks has been thinking about since her exercise came to an end is the power of peaceful protest on a chiliad scale. "We had players on both sides attempting to mobilize their supporters to plough out in large numbers, and we didn't really have a good machinery for deciding, did that make a departure? What kind of difference did that make?" she said. "Information technology left some with some big questions nigh what if you had Orangish Revolution–style mass protest sustained over weeks. What effects would that have?"
Only one time, in 1877, has the Interregnum brought the country to the brink of true collapse. Nosotros volition find no model in that episode for us at present.
4 states sent rival slates of electors to Congress in the 1876 presidential race betwixt Democrat Samuel Tilden and Republican Rutherford B. Hayes. When a special tribunal blest the electors for Hayes, Democrats began parliamentary maneuvers to obstruct the electoral count in Congress. Their programme was to run out the clock all the way to Inauguration Day, when the Republican incumbent, Ulysses S. Grant, would have to step down.
Not until two days before Grant's term expired did Tilden requite in. His concession was based on a repugnant deal for the withdrawal of federal troops from the South, where they were protecting the rights of emancipated Black people. Just that was non Tilden's only inducement.
The threat of military force was in the air. Grant permit it be known that he was prepared to declare martial police force in New York, where rumor had it that Tilden planned to be sworn in, and to back the inauguration of Hayes with uniformed troops.
That is an unsettling precedent for 2021. If our political institutions neglect to produce a legitimate president, and if Trump maintains the stalemate into the new year, the chaos candidate and the commander in main will be one and the aforementioned.
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Source: https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/
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