by Lawrence Douglas
October 26, 2020
You wrote a book recently called, Will He Go, about what may happen in a contested election. What are you most concerned about this election cycle?
We have never had a sitting president or even a candidate for higher office who is telling the American people that our electoral system lacks integrity. This is unprecedented in American history and has been a pretty constant message emerging from Trump. He has consistently said that the only way for our electoral system to demonstrate its integrity is for him to win and if he loses it is proof that the election was rigged.
We can look back to his claims about the popular vote being stolen from him in the 2016 election. We can look back to when he refused to say that he would accept the outcome of the election in 2016 during a debate with Hilary Clinton. We can look back to when he was a candidate for the Republican nomination, and lost the Iowa caucus to Ted Cruz. The very next day he was out there tweeting saying, "I didn't lose the Iowa caucus, Ted Cruz stole it. The results should be tossed out." He has consistently spewed an unprecedented, toxic message.
Can he, or any other president in power, refuse a transfer of power?
My primary concern is that he might do something to muddy the waters as to who has won the election if it hinges on tight margins in a handful of swing states like Michigan, Wisconsin, Pennsylvania, and North Carolina.
It is not unlikely that he might have a lead on November 3rd, given the fact that his supporters are more likely to vote in person than Biden supporters. Trump supporters are more than twice as likely as Biden supporters. Trump could try to leverage that lead and claim that he's been reelected and that any coming mail-in ballots have been irretrievably corrupted by fraud.
At one point does this “muddying of the waters” turn into a power grab? When does the rhetoric shift into political gain?
In key swing states, there are going to be millions of mail-in ballots. There's no doubt that there'll be instances of mistakes in counting those ballots. Any mistake will create an opportunity for Trump to spin that into a conspiracy theory. We've already seen him do that in Luzerne County, Pennsylvania. A part-time election official who had been on the job three days accidentally threw out nine mail-in-ballots, seven of which apparently had Trump's name on it, and in the first presidential debate, Trump used that instance of harmless error as evidence of a grand conspiracy. And it's not just that Trump was making those claims. We saw that the Department of Justice under Barr launched a formal inquiry into those nine discarded ballots, which gave a sense of legitimacy to the claim that there was some kind of larger malfeasance behind this action.
It's not just a rhetorical move, there could be a real political payoff for him.
What role do you see the courts playing in scenarios like that?
It is certainly going to be the case that the courts will play an important role. There is already a lot of litigation coming through the courts, and there is no doubt that there is going to be more in the wake of the election. Again, a lot of the litigation will be focused on these key swing states.
Both sides will bring various court challenges regarding the qualification or disqualification of mail-in-ballots. There are technical reasons for disqualifying mail-in-ballots, including things like if the ballots were submitted in an untimely fashion or if the signature on the envelope doesn't match a signature on state records. And regardless of the actual outcome, these cases will slow the final count. I think any kind of delay works to Trump's favor — in that it permits him to continue to perpetuate a narrative that he has been reelected and that the mail-in-ballots are fraudulent.
At what point does litigation reach the Supreme Court? Do you anticipate that happening and does that concern you?
It is not entirely clear if or when the Supreme Court would step in to resolve these sorts of disputes.
But, they are already involved to an extent. The Supreme Court just ruled that ballots in Pennsylvania will be counted if they are received within three days of Election Day even if they do not have a legible postmark. One possibility is that Amy Coney Barrett could be a deciding vote, and it remains to be seen whether she would recuse herself or not. That is concerning to me.
Right. Are there mechanisms the Constitution puts in place to prevent a refusal to transfer power? In ways you think might be outside the scope of what is contested in this election, in what ways does the Constitution ensure a peaceful transfer of power and the preservation of democracy?
Neither the Constitution nor federal law does a whole lot.
The president can't delay an election, only Congress can. January 20th, inauguration day, is a hard stop, set in the Constitution. If Trump loses, he becomes a civilian at noon on January 20th. If there is no decision either amongst the electoral college or between Congress by the inauguration, we go by the terms of the Presidential Succession Act of 1947, and Nancy Pelosi would be sworn in as the acting president. But beyond that, the Constitution and federal law don't do a lot to secure the peaceful transfer of power; they presuppose it, as opposed to securing it.
A number of people, particularly those from other countries have asked, when do you get a re-vote? In a parliamentary system, you can call for new elections, but we don't have anything like that. There is no plan B.
Are there other times in our nation’s history, where the electoral system has been stretched and tested?
The two elections that came the closest to genuine electoral meltdowns are the race between Hayes and Tilden in 1876, and the race between Bush and Gore in 2000.
In 2000, the swing state was Florida. The entire election was going to turn on what happened in Florida, where the count was mired in litigation and confusion for 35 days after the election. Finally, the Supreme Court stepped in and basically stopped the Florida recount that had Bush with a 537 vote lead.
But, it is wrong to say that the Supreme Court brought closure to that electoral dispute. What brought closure was the fact that Al Gore graciously conceded, and he did so to put the interest of the nation ahead of his own political fortunes.
It's impossible to imagine Trump acting in that fashion.
The election of 1876 was even more complicated. Three states couldn't decide who had carried their state and submitted conflicting electrical certificates. That particular electoral dispute was resolved by a one-off electoral commission, and it wasn't resolved until two days before the inauguration. I should say that the actual compromise was a disaster, particularly for the Black citizens of the United States. Democrats agreed to recognize the Republican winner, Hayes, in return for the removal of federal troops from the South, paving the way for the creation of the Jim Crow era.
You can imagine a similar situation in 2020. If you get conflicting electoral certificates in swing states, the key swing states, Wisconsin, Pennsylvania, Michigan, and North Carolina, all have Republican legislatures and Democratic governors. And you can imagine a hold up in Congress, especially if Congress remains divided as it is now. It is important to note that it is not the present Congress that will be deciding things, it will be the newly elected Congress.
Which puts a new emphasis on down-ballot races.
Absolutely. These down-ballot elections could be hugely important, particularly in respect to the composition of the Senate. But, to make things even more complicated, these senate races could also be mired in counts and recounts involving mail-in-ballots. It's not necessarily clear that we will even know what the composition of the Senate is, come January.
Clearly, this election is unlike anything we have ever seen before. There is distrust on both sides. Do you think we can recover from this?
It's true that it's not only the Republicans who have lost trust in the electoral process, Democrats have lost faith as well. However, there is a real asymmetry in the reasons for that loss of trust. We know that there's no reason to doubt the integrity of mail-in-ballots. Trump's attack is baseless. His own FBI director has said there's no evidence whatsoever of any kind of a concerted effort to rig the election with mail-in ballots. On the other hand, the Democrat's concern over voter suppression is legitimate. There is a long history of Republican lawmakers trying to suppress votes, particularly of black voters, poor voters, and other ethnic minorities who tend to vote overwhelmingly Democratic.
For constitutional democracy to survive, people need to have faith in the electoral process, and they need to have faith in the trustworthiness of its outcomes.
It's absolutely essential that, regardless of the result of this election, we try and restore that faith. There are things that we can do to restore that faith. We can work really aggressively to protect the right to vote, we can try to invest in election infrastructure to ensure it is not vulnerable to hacking, and we can get rid of the stupid electoral college — which is an archaic, anti-democratic, dysfunctional, and dangerous mechanism by which we elect the president.
Speaking to the asymmetry — do you think that says something about the cultural and political propensity of Republican voters, or a larger shifting American penchant towards authoritarianism?
I am not sure I could necessarily say that there is a willingness amongst a certain number of Republicans to support authoritarianism, but one thing I do think is fair to say is that there is this incredibly siloed media environment.
A large number of Americans are being fed misinformation. Democracy presupposes that people make informed choices based on accurate information.
If you're being fed disinformation, you're incapable of making an informed choice and that's an incredibly dangerous thing for democracy. I think we can stay with that observation — that the American public is not getting accurate information, and they are making their political conclusions and decisions based on misinformation campaigns.