Election Day nightmares

 

What could go wrong? 

The coronavirus pandemic could wreak havoc at the polls, especially if November finds us in the midst of a second wave, as many infectiousdisease experts predict. The potential for disaster was made evident in recent primaries: Shortages of workers, caused by fear of the coronavirus, led to shuttered and understaffed polling places, creating logjams that left voters waiting for hours in long lines to cast a ballot. That happened in Maryland, Georgia, Wisconsin, Washington, D.C., and elsewhere— and problems are expected to be far worse in November, when voter turnout will be considerably higher. “We’re just going to have a catastrophe,” said Michael McDonald, a political science professor at the University of Florida who studies elections.

What about mail-in ballots? 

They should help ease the crush at polling places—but counting them will create new problems. It takes a long time to tally them under the best of circumstances, and many municipalities may not be prepared to deal with an unprecedented avalanche of mailedin ballots. Again, the primaries have offered a preview: In Idaho, Mary land, and Penn syl vania, mail-in ballots were still being counted more than a week after the election date. Imagine a scenario where the outcome of the presidential election is hanging on results in Mich i gan and Penn syl vania, and for days after Nov. 3 mail-in ballots in those states are still being tallied, verified—and challenged. It would create major confusion and chaos, and there’s wide concern that President Trump would fan the flames.

What might Trump do? 

It’s highly likely that if Trump faced a potential loss he’d claim the vote was illegitimate. He has a long history of alleging voter fraud and election theft without evidence— groundlessly claiming, for example, that he’d have won the popular vote in 2016 “if you deduct the millions of people who voted illegally.” He’s been laying the groundwork for contesting November’s results by continually claiming—again, without evidence— that mail-in voting enables massive fraud and will lead to, as he put it in a recent tweet, “the greatest Rigged Election in history.” Imagine a scenario in which Mich i gan is the pivotal state in the Elec toral College, and Trump is leading the vote there after the polls close—but over a fraught, frenzied week of counting, mail-in ballots from heavily Demo cratic Detroit give the race to Biden. “Trump could basically claim fraud—and we don’t really have mechanisms to deal with that,” said Steven Levitsky, a political science professor at Harvard and co-author of How Democracies Die. Then there’s an even more unsettling possibility: that no winner is named at all.

How could that happen? 

The Consti tu tion left some ambiguities and holes in the mechanics of the Elec toral Col lege. Lawrence Douglas, a law professor at Am herst College, explains how this could lead to an electoral nightmare in a new book, Will He Go? Trump and the Looming Election Meltdown in 2020. Let’s say the election comes down to a single state that’s barely won by Biden, but whose state legislature is controlled by Republicans. Michigan could be such a state. The legislature could back Trump’s claim that he was denied victory by fraud, and move to give him the state’s electoral votes. Under another scenario, the legislature and the state’s Dem o cratic governor could send competing electoral certificates to Congress, which tallies the final Electoral College vote. It would then be up to Congress to decide which certificate was valid—and if a House controlled by one party and a Senate controlled by the other disagree, “there is basically no way to resolve the dispute,” Douglas said. “There’s a Chernobyl-like defect built into our system of presidential elections that really could lead to a meltdown.” Regardless of the circumstances, if Trump loses a close election, it is quite possible he will insist he’s the legitimate president and refuse to leave the White House.

What happens then? 

Few expect he would succeed. At noon on Jan. 20, 2021, the Secret Service and the military are constitutionally mandated to shift their allegiance to the declared winner (assuming there is one). To hold on to power “would require the president to get multiple people to fairly blatantly disregard their oath to uphold the Constitution,” said Georgetown law professor David Super. But militia uprisings and other civil violence aren’t hard to envision. More important is the critical damage to the republic that could be inflicted by a president who broke with more than two centuries of tradition by refusing to accept his loss as valid. “Implicit in a democracy is the idea that voters accept the results as legitimate,” said Richard Hasen, a law professor at the Uni ver sity of Cal i for nia, Irvine, who’s written a book on the 2020 race called Elec tion Melt down. “If you don’t have that, then you don’t have a democracy.”

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