If we ever get the dictator tot out of the White House, we'll have to lay down some serious regulations with teeth in them to cover a multitude of "norms" Trump, et al., have broken.Let us not hedge about one thing. Donald Trump may win or lose, but he will never concede. Not under any circumstance.
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Technically, you feel obliged to point out, the proposition is framed in the future conditional, and prophecy is no man’s gift, and so forth. With all due respect, that is pettifoggery. We know this man. We cannot afford to pretend.
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There is a cohort of close 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 system does not know how to absorb. They see the obvious signs that we all see, but they also know subtle things that most of us do not.
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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.
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Anything is possible, including a landslide that leaves no doubt on Election Night. But even if one side takes a commanding early lead, tabulation and litigation of the “overtime count”—millions of mail-in and provisional ballots—could keep the outcome unsettled for days or weeks.
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Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity.
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A lot of people, including Joe Biden, the Democratic Party nominee, have misconceived the nature of the threat. They frame it as a concern, unthinkable for presidents past, that Trump might refuse to vacate the Oval Office if he loses. They generally conclude, as Biden has, that in that event the proper authorities “will escort him from the White House with great dispatch.”
The worst case, however, is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome 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 then in Congress.
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Trump’s state and national legal teams are already laying the groundwork 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 Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive 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 we imagine what it would be. But few people have actual answers to what happens if the machinery of democracy is used to prevent a legitimate resolution to the election.”
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The transfer of power we usually take for granted has several intermediate steps, and they are fragile.
The Interregnum comprises 79 days, carefully bounded by law. Among them are “the first Monday after the second Wednesday in December,” this year December 14, when the electors meet in all 50 states and the District of Columbia to cast their ballots for president; “the 3d 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 not be.
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If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.
Trump’s invincible commitment to this stance will be the most important fact about the coming Interregnum. It will deform the proceedings from beginning to end. We have not experienced anything like it before.
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Trump’s behavior and declared intent leave no room to suppose that he will accept the public’s verdict if the vote is going against him. He lies prodigiously—to manipulate events, to secure advantage, to dodge accountability, and to ward off injury to his pride. An election produces the perfect distillate of all those motives.
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Well-supported arguments, some of them in this magazine, have made the case that Trump fits the diagnostic criteria for psychopathy and narcissism. Either disorder, by its medical definition, would render him all but incapable of accepting defeat.
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In 2016, with the presidency in hand, 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 cast fraudulent votes for Hillary Clinton.
All of which is to say that there is no version of the Interregnum in which Trump congratulates Biden on his victory. He has told us so. “The only way they can take this election away from us is if this is a rigged election,” Trump said at the Republican National Convention on August 24.
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Like other rituals, concessions developed a liturgy. The defeated candidate comes out first. He thanks supporters, declares that their cause will live on, and acknowledges that the other side has prevailed. The victor begins his own remarks by honoring the surrender.
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In actual war, not the political kind, concession is optional. The winning side may take by force what the losing side refuses to surrender. 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 death. There are places in the world where political combat still ends that way, but not here. The loser’s concession is therefore hard to replace.
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We have no precedent or procedure to end this election if Biden seems to carry the Electoral College but Trump refuses to concede. We will have to invent one.
The Atlantic
Are you sure?Trump is, by some measures, a weak authoritarian. He has the mouth but not the muscle to work his will with assurance. Trump denounced Special Counsel Robert Mueller but couldn’t fire him. He accused his foes of treason but couldn’t jail them. He has bent the bureaucracy and flouted the law but not broken free altogether of their restraints.
A proper despot would not risk the inconvenience of losing an election. He would fix his victory in advance, avoiding the need to overturn an incorrect outcome. Trump cannot do that.
They have to begin now, because voting has begun in some states. And they HAVE begun.But he’s not powerless to skew the proceedings—first on Election Day and then during the Interregnum. He could disrupt the vote count where it’s going badly, and if that does not work, try to bypass it altogether. On Election Day, Trump and his allies can begin by suppressing the Biden vote.
It worked. Therefore it's not needed? Was that not appealed? It should have been taken to the Supreme Court if necessary.In present-day politics, we have one party that consistently seeks advantage in depriving the other party’s adherents of the right to vote.
Just under a year ago, Justin Clark gave a closed-door talk in Wisconsin to a select audience of Republican lawyers. He thought he was speaking privately, but someone had brought a recording device. He had a lot to say about Election Day operations, or “EDO.”
At the time, Clark was a senior lieutenant with Trump’s reelection campaign; in July, he was promoted to deputy campaign manager. “Wisconsin’s the state that is going to tip this one 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 one part of the state, so let’s start playing offense a little bit. And that’s what you’re going to see in 2020. That’s what’s going to be markedly different. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program, and we’re going to need all the help we can get.”
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Of all the favorable signs for Trump’s Election Day operations, Clark explained, “first and foremost is the consent decree’s gone.” He was referring to a court order forbidding Republican operatives from using any of a long list 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 election will be the first in 40 years to take place without a federal judge requiring the Republican National Committee to seek approval in advance for any “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.
Admitting on national TV what I've always been saying: they can't win if they don't cheat.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 20 to tell Sean Hannity, “We’re going to have sheriffs and we’re going to have law enforcement and we’re going to have, hopefully, U.S. attorneys” to keep close watch on the polls.
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Voter fraud is a fictitious threat to the outcome of elections, a pretext that Republicans use to thwart or discard the ballots of likely opponents. An authoritative report by the Brennan Center for Justice, a nonpartisan think tank, calculated the rate of voter fraud in three elections at between 0.0003 percent and 0.0025 percent. Another investigation, from Justin Levitt at Loyola Law School, turned up 31 credible 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 name of preventing fraud in this year’s election. State by state, they have sought—with some success—to purge voter rolls, tighten rules on provisional votes, uphold voter-identification requirements, ban the use 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 arrive afterward. The intent and effect is to throw away votes in large numbers.
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This year’s presidential election will see voting by mail on a scale unlike any before—some states are anticipating a tenfold increase in postal balloting.
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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. it will also lead to the end of our great republican party. we can never let this tragedy befall our nation.” Another day he pointed to an imaginary—and easily debunked—scenario of forgery from abroad: “rigged 2020 election: millions of mail-in ballots will be printed by foreign countries, and others. it will be the scandal of our times!”
By late summer Trump was declaiming against mail-in voting an average of nearly four times a day—a pace he had reserved in the past for existential dangers such as impeachment and the Mueller investigation.
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Summer also brought reports that the U.S. Postal Service, the government’s most popular agency, was besieged from within by Louis DeJoy, Trump’s new postmaster general and a major Republican donor.
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In the name of efficiency, the Postal Service began decommissioning 10 percent of its mail-sorting machines. Then came word that the service would no longer treat ballots as first-class mail unless some states nearly tripled the postage they paid, from 20 to 55 cents an envelope. DeJoy denied any intent to slow down voting by mail, and the Postal Service withdrew the plan under fire from critics.
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In part, Trump’s hostility to voting by mail is a reflection of his belief that more voting is bad for him in general. Democrats, he said on Fox & Friends at the end of March, want “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”
Bingo. Although I doubt he was smart enough to think of it himself.Trump’s 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 practice and starving it of resources, signaling his supporters to vote in person, and 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.
And that's what he'll be screaming from now until after the election.For most of American history, the overtime count [mailed ballots] produced no predictably partisan effect. In any given election year, some states shifted red in the canvass after Election Day and some shifted blue, but the shifts were seldom large enough to matter.
Two things began to change about 20 years ago. The overtime count got bigger, and it trended more and more blue. In an updated paper this year, Foley and his co-author, Charles Stewart III of MIT, said they could not fully explain why the shift favors Democrats. (Some factors: Urban returns take longer to count, and most provisional ballots are cast by young, low-income, or mobile voters, who lean blue.)
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The blue shift has yet to decide a presidential election, but it upended the Arizona Senate race in 2018. Republican Martha McSally seemed to have 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."
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It was Florida, however, that seized Trump’s attention that year. On Election Night, Republicans were leading in tight contests for governor and U.S. senator. As the blue shift took effect, Ron DeSantis watched his lead shrink by 18,416 votes in the governor’s race. Rick Scott’s Senate margin fell by 20,231. By early morning on November 12, six days after Election Day, 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 up 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 go with Election Night!”
Which is another reason McConnell wants to ram through a third Trump appointee to the Supreme Court.Trump was panicked enough by the blue shift in somebody else’s election to fabricate allegations of fraud. In this election, when his own name 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 year there will be tens of millions more of them than in any election before. Many states forbid the processing of early-arriving mail ballots before Election Day; some allow late-arriving ballots to be counted.
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“There are results that come in Election Night,” a legal adviser to Trump’s national campaign, who would not agree to be quoted by name, told me. “There’s an expectation in the country that there will be winners and losers called. If the Election Night results get changed because of the ballots counted after Election Day, you have the basic ingredients for a shitstorm.”
There is no “if” about it, I said. The count is bound to change. “Yeah,” the adviser agreed, and canvassing will produce more votes for Biden than for Trump. Democrats will insist on dragging out the canvass for as long as it takes to count every vote. The resulting conflict, the adviser said, will be on their heads.
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The worst case for an orderly count is also considered by some election modelers the likeliest: that Trump will jump ahead on Election Night, based on in-person returns, but his lead will slowly give way to a Biden victory as mail-in votes are tabulated. [...] ” The turbulence of that interval, fed by street protests, social media, and Trump’s desperate struggles to lock in his lead, can only be imagined. “Any scenario that you come up with will not be as weird as the reality of it,” the Trump legal adviser said.
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Could a landslide spare us conflict in the Interregnum? In theory, yes. But the odds are not promising.
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A really big Biden lead on Election Night, on the other hand, could leave Trump without plausible hope of catching up. If this happens, we may see it first in Florida. But this scenario is awfully optimistic for Biden, considering the GOP advantage among in-person voters, and in any case Trump will not concede defeat. This early in the Interregnum, he will have practical options to keep the contest alive.
Both parties are bracing for a torrent of emergency motions in state and federal courts. They have already been skirmishing from courthouse to courthouse all year in more than 40 states, and Election Day will begin a culminating phase of legal combat.
And at this point, they'll do much worse.Voting by mail is more complicated than voting in person, and technical errors are commonplace at each step. If voters supply a new address, or if they write a different version of their name (for example, by shortening Benjamin to Ben), or if their signature has changed over the years, or if they print their name on the signature line, or if they fail to seal the ballot inside an inner security envelope, their votes may not count.
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[A Republican lawyer] recommended that “someone connected with the party review each application and each mail ballot envelope” in November. That is exactly the plan.
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The electoral combat will not confine itself to the courtroom. Local election adjudicators can expect to be named and doxed and pilloried as agents of George Soros or antifa. Aggressive crowds of self-proclaimed ballot guardians will be spoiling to reenact the “Brooks Brothers riot” of the Bush v. Gore Florida recount, when demonstrators paid by the Bush campaign staged a violent protest that physically prevented canvassers from completing a recount in Miami-Dade County.
Things like this have already happened, albeit on a smaller scale than we can expect in November.
Which house? Both?What might a ruthless incumbent do that has never been tried before?
Suppose that caravans of Trump supporters, adorned in Second 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.
Then suppose the president declares an emergency. Federal personnel in battle dress, staged nearby in advance, move in to restore law and order and secure the balloting. Amid ongoing clashes, they stay to monitor the canvass. They close the streets that lead to the polls. They take custody of uncounted ballots in order to preserve evidence of fraud.
“The president can’t cancel the election, but what if he says, ‘We’re in an emergency, and we’re shutting down this area for a period of time because of the violence taking place’?” says Norm Ornstein of the American Enterprise Institute. If you are in Trump’s camp and heedless of boundaries, he said, “what I would expect is you’re not going to do one or two of these things—you’ll do as many as you can.”
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This is speculation, of course. But none of these scenarios is far removed from things the president has already done or threatened to do. Trump dispatched the National Guard 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 United States military” to “Democrat-run cities” in order to protect “life and property.” The federal government has little basis to intercede during elections, which are largely governed by state law and administered by about 10,500 local jurisdictions, but no one familiar with Attorney General Bill Barr’s view of presidential power should doubt that he can find authority for Trump.
With every day that passes after November 3, the president and his allies can hammer home the message that the legitimate tabulation is over and the Democrats are refusing to honor the results. Trump has been flogging this horse already for months.
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It is tempting to liken a vote count to the score at a sporting event. The losing coach can bellyache all he likes, but when the umpire makes the call, the game is over. An important thing to know about the Interregnum is that there is no umpire—no singular authority who can decide the contest and lay it to rest.
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The Interregnum allots 35 days for the count and its attendant lawsuits to be resolved. On the 36th day, December 8, an important deadline arrives.
At this stage, the actual tabulation of the vote becomes less salient to the outcome. That sounds as though it can’t be right, but it is: The combatants, especially Trump, will now shift their attention to the appointment of presidential electors.
December 8 is known as the “safe harbor” deadline for appointing the 538 men and women who make up the Electoral College. The electors do not meet until six days later, December 14, but 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’s ballots for president.
As was said about Trump earlier, we know these people. They will do anything to win.We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.”
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According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election 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 ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.
To a modern democratic sensibility, discarding the popular vote for partisan gain looks uncomfortably like a coup, whatever license may be found for it in law. Would Republicans find that position disturbing enough to resist?
Fair interpretation: they'll do all these things.When The Atlantic asked the Trump campaign about plans to circumvent the vote and appoint loyal electors, and about other strategies discussed in the article, the deputy national press secretary did not directly address the questions. “It’s outrageous that President Trump and his team are being villainized for upholding the rule of law 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.”
We absolutely MUST flip the Senate.In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.
“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.”
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“The longer it goes on, the more opinions and the more theories and the more conspiracies [are] created,” [Jake Corman, the state’s Senate majority leader,] told me. If controversy persists as the safe-harbor date nears, he allowed, the legislature will have no choice but to appoint electors. “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”
Republicans control both legislative chambers in the six most closely contested battleground states.
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In Arizona, Secretary of State Katie Hobbs, who oversees elections, is a Democrat. She could assert 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 hope of triggering a “controversy or contest” that would leave their state’s outcome to Congress.
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Foley, the Ohio State election scholar, has mapped the ripple effects if Republican legislators were to appoint Trump electors in defiance of the vote in states like Pennsylvania and Michigan. The Democratic governors would respond by certifying the official count, a routine exercise of their authority, and they would argue that legislators could not lawfully choose different electors after the vote had taken place.
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In any of these scenarios, the Electoral College would convene on December 14 without a consensus on who had legitimate claims to cast the deciding votes.
Rival slates of electors could hold mirror-image meetings in Harrisburg, Lansing, Tallahassee, or Phoenix, casting the same electoral votes on opposite sides. Each slate would transmit its ballots, as 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 genuine constitutional crisis, the first but not the last of the Interregnum. “Then we get thrown into a world where anything could happen,” Norm Ornstein says.
Two men are claiming the presidency. The next occasion to settle the matter is more than three weeks away.
January 6 comes just after the new Congress is sworn in. Control of the Senate will be crucial to the presidency now.
The framers did not anticipate Donald J Trump.Pence, as president of the Senate, would hold in his hands two conflicting electoral certificates from each of several swing states. The Twelfth Amendment says only this about what happens next: “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.”
Note the passive voice. Who does the counting? Which certificates are counted?
And this article doesn't even address the possibility of Republicans arguing that these Congressional decisions must be made by the current Congress and not the one just elected.If Democrats win back the Senate and hold the House, then all roads laid out in the Electoral Count Act lead eventually to a Biden presidency. The reverse applies if Republicans hold the Senate and unexpectedly win back the House. But if Congress remains split, there are conditions in which no decisive outcome is possible—no result that has clear force of law. Each party could cite a plausible reading of the rules in which its candidate has won. There is no tie-breaking vote.
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This is the next constitutional crisis, graver than the one three weeks before, because the law and the Constitution provide for no other authority to consult. The Supreme Court may yet intervene, but it may also shy away from another traumatizing encounter with a fundamentally political question.
Sixty-four days have passed since the election. Stalemate reigns. Two weeks remain until Inauguration Day.
And repealing Citizens United.It is not so much, at this point, a question of law. It is a question of power. Trump has possession of the White House. How far will he push boundaries to keep it, and who will push back? It is the same question the president has posed since the day he took office.
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There are reforms to consider some other day, when an election is not upon us. Small ones, like clearing up the murky parts of the Electoral Count Act. Big ones, like doing away with the Electoral College. Obvious ones, like appropriating money to help cash-starved election authorities upgrade their operations in order to speed up and secure the count on Election Day.
...but hey, do what you want...you will anyway.If you are a voter, think about voting in person after all. More than half a million postal votes were rejected in this year’s primaries, even without Trump trying to suppress them. If you are at relatively low risk for COVID-19, 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 extraconstitutional measures, and position reporters and crews to respond 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 not to participate in chicanery. If you are a judge on the bench in a battleground state, refresh your acquaintance with election case law. If you have a place in the military chain of command, remember your duty to turn aside unlawful orders. If you are a civil servant, know that your country needs you more than ever to do the right thing when you’re asked to do otherwise.
UPDATE:
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