Nightmare in November

The bedrock of American democracy is the peaceful transfer of power. When George Washington left office after two terms as president, he established the principle that American political leaders willingly cede power to legally elected successors. And, when Thomas Jefferson peacefully succeeded John Adams in 1801, America demonstrated that, in a republic power, can pass from leaders with one set of political ideas to successors with a different set.

This system has worked well enough for more than two centuries — until, perhaps, now, as many Americans worry that, if President Donald Trump loses the election, he may not abide by tradition and constitutional norms and leave the White House on January 20, 2021. These are not the perfervid fears of committed anti-Trumpers. The fears are based on substantive concerns fed by the remarks of the president himself. Recently, Chris Wallace of Fox News asked Trump if he would recognize the results of the 2020 election. “I’m not going to just say yes, and I didn’t last time, either,” Trump responded. In the final debate of 2016 with Democratic challenger Hillary Clinton, Trump said he would consider his options and “keep you in suspense.”

That 2016 nightmare of Trump contesting the results was averted by a worse nightmare: Trump won. But, even in victory, Trump was full of sour grapes, complaining that he lost the popular vote because millions of people voted illegally. He provided no evidence of that accusation because there is none. Even his commission appointed to investigate the election could not find evidence of fraud. Still, if the president was a sore winner, it is reasonable to presume he will be an even worse loser.

Nothing is certain in politics, but it is reasonable to fear Trump rejecting the electoral results. He may try — has already tried — to queer the results by inviting foreign intervention in the 2020 presidential election. He may try to cheat in other ways, and he has been laying the groundwork for challenging the results by his repeated and unfounded charges that mail-in voting — necessary in the time of a pandemic — is rife with fraud. He may simply refuse to recognize the results. What would happen next in that scenario is by no means certain, but what is almost certain is that he will challenge the results if they are close.

Into this thicket of what might happen steps legal scholar Lawrence Douglas in a slim and well-timed book, Will He Go?: Trump and the Looming Election Meltdown in 2020. There are many possible scenarios in which Trump might challenge the electoral results. Douglas considers three such possibilities, catastrophes he calls them, all based on historical precedents. Here, I concentrate on the third of Douglas’s scenarios because it strikes me as the most possible, given the pandemic and Trump’s continuing attacks on mail-in voting.

This scenario replays some of the drama of 2016 because it hinges on the 46 electoral votes of Michigan, Wisconsin, and Pennsylvania, all of which Trump narrowly carried four years ago. The votes of these three states gave Trump the presidency, but his margin of victory in each was very slim. A shift of a few thousand votes in each would swing these critical battleground states away from Trump. 

On election night 2020, Douglas assumes Democratic challenger Joe Biden has won the popular vote, this time by an even larger margin than Clinton’s four years ago. Late at night, Fox News projects Trump the winner. The returns of the same-day vote appear to give Trump Michigan, Wisconsin, and Pennsylvania, but by an even narrower margin than in 2016. Some observers urge caution on calling the race because of a large number of absentee ballots yet to be counted. As the count from those ballots is tabulated in the coming days, Trump’s lead over Biden narrows in the critical three states. Trump takes to his favorite forum, Twitter, tweeting in Douglas’s imagined scenario: “In the interest of FAIRNESS, ELECTION must be CALLED NOW! We must STOP the CORRUPT Democrats in PA, MI & WI from STEALING our VICTORY with THOUSANDS of FAKE VOTES!!!”

Trump’s claims of fraud are as fraudulent after the election as before, but his continuous drumbeat of tweets and statements challenging the legitimacy of the returns emboldens his supporters in Congress and the disputed states, all of which have Republican-controlled legislatures and Democratic governors. The legislatures in all three states vote to accept the election day count — excluding absentee ballots — while the governors certify that Biden has won based on the tabulation of all the votes. The states send two sets of returns to Congress, muddling the count in the Electoral College. The machinations, as Douglas hypothesizes, are complex, but the end result is clear and unprecedented: The nation finds it itself at noon on January 20 without an elected president. Instead, two persons claim the office: Trump and Speaker Nancy Pelosi according to the constitutional stipulation that in the absence of a duly elected president, the speaker steps into the void. 

Far-fetched? Not really, given the numbers of expected mail-in votes this year and the unpreparedness of many states to tabulate them in a timely fashion. The possibility of three states submitting two sets of returns showing different electors casting ballots has happened before. In 1876, the votes of the states of Florida, South Carolina, and Louisiana were disputed, with both Rutherford Hayes, the Republican nominee, and Democratic challenger Samuel Tilden claiming victory. The disputed electoral votes (one in Oregon was also up for grabs) would determine the outcome. To resolve the deadlock, a compromise was reached whereby Hayes was awarded the contested electoral votes in return for a Republican promise to remove federal troops from all Southern states, effectively ending Reconstruction. The Compromise of 1877 prevented a possible return to armed civil conflict at the price of second-class citizenship for recently freed African Americans. 

The nation avoided a catastrophe in 1876 because Tilden put a peaceful transfer of power ahead of his personal interest in the presidency. Similarly, in 2000, Al Gore acknowledged the Supreme Court’s decision to halt the Florida recount and give the presidency to Republican George W. Bush. Gore had grounds to keep on fighting, but he chose not do so. Anyone who thinks Trump would act selflessly like Tilden or Gore either has been drinking the Kool-Aid or has not been paying attention.

Posted July 28, 2020



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