There is a lot of talk about Barton Gellman’s article in The Atlantic considering the very likely possibility that Trump will not concede if he loses and in fact will do everything he can to cling to power.
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. Something dangerous has hove into view, and the nation is lurching into its path.
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 mail-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 lead, tabulation and litigation of the “overtime count”—millions of mail-in and provisional ballots—could keep the outcome unsettled for days or weeks.
If we are lucky, this fraught and dysfunctional election cycle will reach a conventional stopping point in time to meet crucial deadlines in December and January. The contest will be decided with sufficient authority that the losing candidate will be forced to yield. Collectively we will have made our choice—a messy one, no doubt, but clear enough to arm the president-elect with a mandate to govern.
As a nation, we have never failed to clear that bar. But in this election year of plague and recession and catastrophized politics, the mechanisms of decision are at meaningful risk of breaking down. 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. Thus the blinking red lights.
“We could well see 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 see would be much worse than 2000’s Bush v. Gore case.”
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. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power.
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.”
Let’s just go with the foregone conclusion that no matter what the vote count is on Election Night or in the days after as the mail-in and absentee and overseas and military ballots are counted, Trump will never concede. He will not do what every losing candidate has done in living memory: take the stage in some hotel ballroom or some gathering in front of somber supporters and staff and say in some fashion that he called the president-elect to congratulate him and mutter some platitude about how the system works and God bless America. He is mentally and physically incapable of doing that. Indeed, he’s admitted as such with his ominous threat yesterday about “we’ll have to see” about the outcome. And we can be sure that he’s already drafted an army of lawyers to challenge every mail-in vote in every state — except, of course, his own — and there’s even talk about going to the various state legislatures where he has allies to overturn the electors that will be the ones who actually cast the votes that matter in the Electoral College in December to try to persuade them to vote for him regardless of the actual vote count in the state. He could drag this out to January 20, 2021 when he shows up — maskless, of course — and demand that Chief Justice Roberts swear him in to a second term, even if Joe Biden is standing there. So, what do we do?
What we do is show up at the polls in early voting where it’s done and on Election Day in such overwhelming numbers for Biden and the Democrats that no matter what Trump says or does, the landslide we deliver makes the 1980 Reagan/Carter election night look like a close one. We fight back with every lawyer who ever passed the bar that still believes in the Constitution to be ready to counter every argument in court, and we have to make sure that the “what-ifs” about this election and the nightmare of four more years of Trump are the stuff of apocalyptic political pot-boilers that you find in paperback novels at the airport.
We have to win this election as if our lives depend on it. Because it does.