UPDATE (September 24, 2020, 9:15 a.m.): On Wednesday, President Trump refused to say whether he would commit to a peaceful transition of power if he lost in the upcoming election, telling reporters: “We’re going to have to see what happens.”
Earlier this month, we looked at a number of different scenarios for what could happen.
For months now, President Trump has carefully planted the seed that he might not leave the office of the presidency willingly if he loses.
Whether it’s tweeting that the election should be delayed as it “will be the most inaccurate and fraudulent election in history” or that there will be widespread voter fraud because of the expected uptick in mail ballots due to the coronavirus, Trump seems intent on undermining the electoral process.
This, in turn, raises a rather thorny and unprecedented question: What happens if Trump won’t go? The answer is bleak. Experts tell me that the president actually has a lot of power at his discretion to contest the election, and some of the scenarios that could bring us to the edge of a crisis are actually very plausible.
Consider this one: It’s late on Election Day, and hundreds of thousands of votes in key battleground states still have to be counted due to the increased use of mail and absentee voting because of the pandemic. As a result, media outlets have largely avoided calling the race, but based on the votes that have been counted, Trump leads in enough states to reach at least 270 electoral votes, which would be enough to win the election if his election-night lead holds. Trump claims victory, but because Democrats were much more likely to vote by mail than Republicans, Joe Biden eventually pulls ahead because of the Democratic lean of the remaining votes — a phenomenon known as the “blue shift.”
That’s just one of the many scenarios the Transition Integrity Project, a bipartisan collection of over 100 experts, explored this summer while researching how a possible election crisis could unfold.
Rosa Brooks, a professor at Georgetown University Law School who co-founded the Transition Integrity Project, told me she and her colleagues weren’t interested in predicting the likelihood of any one scenario they looked at, but more so in understanding the range of possibilities. Ultimately, they don’t know to what extent this year’s election result will be contested — would Trump deploy federal agents from the Department of Justice to secure vote counting sites or would he just take to Twitter to bemoan the results? — but Brooks told me they do think the election will be contested at least on some level. So the question they’re asking is: How much?
One big takeaway from the Transition Integrity Project’s simulations was just how much power Trump has at his disposal should he choose to contest the election. “You have just a tremendous differential between the president of the United States of America, who has just awesome coercive powers at his disposal, and a challenger who really has no power whatsoever in our system,” said Brooks. “Joe Biden can call a press conference; Donald Trump could call on the 82nd Airborne.”
This, of course, would be a doomsday scenario, and one reason why so much of this is hard to fathom. A cornerstone of American elections has been the peaceful transition of power, but as research from the Transition Integrity Project and others underscores, there are multiple ways to contest an election. And it’s not limited to just Trump either. It’s very possible were Trump to win in the Electoral College, where he has an advantage, but lose the popular vote to Biden, that Democrats would dismiss the election as unfair.
We, of course, do not have to look too far back in our electoral history to know that Americans have survived a disputed election before — see the 2000 presidential race. But experts I talked to were worried, given Trump’s inflammatory rhetoric around the election and his own track record of openly flouting democratic norms, that the country wouldn’t be able to handle another full-throttle election dispute. Take how low the public’s trust in the election already is. Last week, an NBC News/SurveyMonkey poll found that 59 percent of Americans were not too confident or not confident at all that the election would be conducted in a free and equal way, in line with its polling since early August on this question.
It might be hard to remember now, but in the 2000 presidential election, Florida’s GOP-controlled state legislature was on the verge of appointing a new slate of electors to vote for George W. Bush had a court-ordered manual recount imposed by the Florida Supreme Court dragged on. Of course, it ultimately didn’t come to that because the U.S. Supreme Court stepped in and halted Florida’s recount, famously deciding in a 5-4 decision that the state Supreme Court had overstepped its bounds and that a recount could not be held in time to meet the federal deadline for the selection of presidential electors.
Edward Foley of Ohio State University’s Moritz College of Law thinks something similar could happen this year if the president and his backers contest the results in the Electoral College.
In Foley’s scenario, Trump leads in the tipping-point state of Pennsylvania on election night, but because of Democratic gains in ballots counted in the following days, Biden pulls ahead by a few thousand votes. What happens next quickly devolves into a partisan dispute. Democratic Gov. Tom Wolf signs Pennsylvania’s certificate of ascertainment, confirming Biden’s victory by listing the Democratic electors as the state’s official slate for the Electoral College, while the Republican-controlled Pennsylvania legislature appoints a different set of electors at Trump’s behest as he has claimed there was widespread election fraud.
This, were it to happen, would likely be met immediately with legal challenges in state and federal court, perhaps followed by another intervention by the U.S. Supreme Court. But the significance is that even if a court ruled against the validity of one set of electors, Congress still has the power to consider both sets of electors as long as they have in hand the certificate naming them.
The Electoral Count Act of 1887, which governs the electoral vote counting process, was designed to help Congress decide how to handle such a situation. But it is especially ambiguous on what would happen if the Senate and House disagree on which set of electors should count, which could happen if the GOP retains control of the Senate and Democrats keep the House.
In Foley’s scenario, Vice President Mike Pence — as president of the Senate, he would oversee the count in Congress — follows one interpretation of the law, arguing that neither set of electors should count because they conflict. That removes Pennsylvania’s votes from the total number of electors and gives Trump a majority based on the remaining 518 electoral votes.1 Democrats, however, counter, claiming the certificate bearing the governor’s seal, which supports Biden, is given preference by the law.
Ultimately, though, neither side finds a compromise and we find ourselves in the midst of a full-blown constitutional crisis. In this scenario, the Supreme Court could become involved if, for instance, Democrats seek an injunction to stop Pence from not counting Pennsylvania’s votes. But it’s also possible the court would try to avoid making a ruling on the counting dispute, in keeping with a dissent from Bush v. Gore that argued neither the Constitution nor the Electoral Count Act provided a role for the judiciary in this process.
Under the 20th Amendment, we know someone must take office on Jan. 20 as president, yet the amendment is curiously silent on how to deal with a dispute over whether someone has actually qualified to take office. “The thing that we know for sure is the current term ends,” said Foley, but he added that doesn’t mean it would be straightforward to figure out who should take office next if there’s a disagreement.
In fact, it’s possible that House Speaker Nancy Pelosi could claim that under the Presidential Succession Act, she is next in line to become president and that she would be willing to resign her House seat to serve as president until Biden is ruled the election winner. But if Republicans claimed Trump had won reelection, they very well might object to Pelosi being sworn in. Given a crisis on this scale, it’s hard to unpack what exactly might happen, but it’s very likely things would spiral out of control, and the resulting uncertainty could spark unrest and protests that could very well lead to violence.
Gaming out these different scenarios demonstrates that, should Trump dispute the result, a key factor will be the extent to which leading Republican officials at the federal and state level cooperate with him. Brooks pointed out that while Trump has significant power to contest the results as president, he can ultimately only go so far if supporters don’t follow his lead.
For instance, in one of its simulations, the Transition Integrity Project found that GOP leaders might support some of Trump’s claims of fraud or maneuvers to manipulate the vote count, but that didn’t mean they’d go along with every move he tried. For instance, it found many Republicans might oppose an attempt to federalize and deploy the National Guard. And in Foley’s scenario, much hinged on what Senate Majority Leader Mitch McConnell and other Republicans — including Pence — chose to do when it came to deciding which Pennsylvania electors should count.
The relative closeness of the election is a factor here, too. In a different simulation the Transition Integrity Project looked at that put Biden in a stronger position on election night, Trump attracted less support from Republican leaders and Biden’s campaign was able to get some degree of bipartisan cooperation so that the country didn’t slide into a full-blown electoral crisis. Still, throughout its different scenarios, the project found it likely that the Trump campaign would try to raise enough doubts about the vote so as to undermine what might even seem like a clear result. Considering Trump claimed millions of people illegally voted when he won in 2016, it doesn’t take much to imagine he’d do the same this year if he thought it would improve his chances of winning a contested election. That’s one reason researchers at the Transition Integrity Project rank Trump’s allegations of voter fraud among the most dangerous threats currently facing the election.
Of course, considering how high the existential stakes seem to be in this election, it’s not out of the question that Biden might be the one who disputes the result. Tellingly, in another simulation the Transition Integrity Project played out, a crisis unfolded after Trump won in the Electoral College but lost the national popular vote by 5 points. Trump claimed it was fraud that explained Biden’s popular vote edge, but Biden retracted an election night concession and pushed Democratic governors in Michigan and Wisconsin to send appointed slates of electors to Congress, in conflict with the elected ones backing Trump. In his work, Foley also explored an alternate scenario in which Arizona was the tipping-point state and Republican Gov. Doug Ducey refused to certify the results to give Biden the state’s electors. During Congress’s counting, congressional Democrats argued that Arizona’s electors should be disqualified to give Biden the victory — the same argument Pence made in the Pennsylvania scenario to claim Trump had won.
The scenarios laid out by the Transition Integrity Project and Foley shouldn’t be taken as definite outcomes, but they do make clear that the rickety apparatus governing our electoral process could collapse if key actors decide to push against it.
Worryingly, the public may be especially vulnerable to attempts to delegitimize the election, too. Faith in the Electoral College is already shaky because of the possibility of a popular vote-electoral vote split like in 2000 and 2016, and worse yet, support for the Electoral College is increasingly polarized by party. A conflict over which electors should count would only exacerbate those concerns. And because many Americans still expect to know who won on election night, this could create a situation where much of the public isn’t ready for — or is ready to reject — sizable shifts in the vote after Election Day, which could make it easier to cast doubt on the outcome.
But even if the worst scenarios don’t come to pass, the fact that we lack a neutral electoral arbiter is surely a ticking time bomb for our democracy. Such an institution may sound difficult to create, but many individual states have used judicial panels to successfully sort through close elections, and other democratic nations have far better laws to adjudicate contested elections. For now, though, in the absence of such measures, the peaceful transfer of power hinges on the expectation that that is how American elections work, but that may be increasingly hanging in the balance, as anyone living in this incredibly polarized era of U.S. politics will tell you.