Uncodified norms, logic-bombs and a Republican party hellbent on power is driving the country towards the abyss: Barton Gellman argues in The Election that Could Break America.
Lawrence Douglas, professor of law and jurisprudence at Amherst College, recently explained: “The Constitution does not secure the peaceful transition of power but rather, presupposes it.” So begins Gellman’s revelatory piece for the Atlantic Magazine this week. It could not come soon enough. I would like to use this space to highlight some of Gellman’s excellent reporting, and add my voice to the urgent warning of a coming election nightmare.
Gellman argues that the ritual of transition in American politics is little more than courtesy. A set of norms we have come to expect, but not bound by law. He is devastatingly correct. The truth is there are no formal rules binding electors to the popular vote. Nor are there common procedures for the 10,500 local jurisdictions that supervise the election. The system has so far relied on deference and decency.
It is failing.
There are 79 days between election night and Inauguration Day. A carefully choreographed dance bound by custom and tradition. In most elections, the pageantry of these few weeks follows a pro forma script. Gellman calls it the interregnum. In popular parlance, it is simply the lame-duck session.
The pattern is the same. First, there is a concession speech where the defeated candidate appears humbled before the nation to declare the end of a hard-fought campaign. In early December, electors from all 50 states meet to cast their ballot. On the first Monday of January, a newly elected Congress is seated. And soon thereafter, the House and Senate convene in a joint session to certify the results.
The transition officially ends on January 20th at noon, when the president elect is sworn into office by the Chief Justice of the Supreme Court.
Pause for a moment.
Visualize this scene like so many before it. And then imagine two candidates, each with competing claims to office, show up to be inaugurated. It is almost unthinkable. Or is it?
What happens if he simply does not go?
As Barton Gellman writes: “We have never failed to clear that bar. But in this election year of plague and recession, the mechanisms of decision are at meaningful risk of breaking down.” Gellman continues, “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.”
I anticipate the incredulity. There has always been a peaceful transition of power––through a Civil War, Reconstruction and Great Depression––what makes this situation so different? Here, Gellman is explicit. Because the President of the United States has said as much. Because he has no decency. And because litigation has already started.
Subverting the Vote
Gellman reports that Trump’s state and national legal teams “are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote in battleground states.”
The maneuvers include the traditional entrée of Republican chicanery: purge the voter rolls in urban districts and college towns; add onerous identification requirements; ban the use of ballot drop boxes; discard mail-in ballots; close polling stations in black and brown neighborhoods; and outlaw the counting of ballots that are postmarked by Election Day.
Here, Trump is emphatic. The less people who vote––particularly people of color––the better. To the keen observer this is nothing new. The modern Republican party has actively sought to suppress the vote. What is new, Gellman argues, are the lengths they will go.
It starts with court packing.
There is no point in couching it. Trump has re-made the federal judiciary. Since assuming office, the president has appointed an astonishing 194 federal judges, a quarter of the entire appellate. Their impact on the bench is undeniable. Like dominos, landmark Civil Rights statutes have either fallen or been gutted. Foremost among these is the consent decree.
Gellman identifies the expiration of the consent decree as a red flag. For decades, the consent decree explicitly barred Republican operatives from engaging in voter intimidation by requiring the Republican National Committee to preclear any “ballot security” measures planned for election day. This year, without preclearance, the Republican party has amassed an army of some 50,000 volunteers in 15 contested states to monitor polling stations. Short of federal oversight, there is little state and local officials can do.
It is easy to imagine a situation where violence erupts. Trump supporters, including the white supremacist Proud Boys, show up at polling stations across the country. Many are armed.
The National Guard is called, and voting is suspended in key precincts. Trump moves to capitalize on the chaos. Perhaps he invokes the Insurrection Act, or deputizes agents from the Department of Homeland Security. His legal-team motions to stop counting ballots until law and order is restored. These moments will be critical. How the country responds, determinative.
The Red Mirage
Still, election night chaos is not enough. Trump also has a long game.
A once-in-a-century pandemic will all but ensure a record number of absentee ballots are cast. Not to be outflanked, Trump has led a blistering assault on mail-in voting. First from the inside, and then very publicly on twitter.
This summer, the postmaster general and major Republican donor, Louis DeJoy, cannibalized the agency from within. Post-boxes were dug-up and thrown into junkyards. Mail sorting machines were decommissioned. Prices were raised. And then raised again. Right on cue, Trump entered the fray with a drum-beat of misinformation–– insisting the vote is rigged.
Gellman argues that spurious allegations of voter fraud are central to Trump’s strategy.
By emphasizing in-person voting and discrediting the postal service, Trump plans to skew the returns. Gellman writes, “Trump’s systematic predictions of fraud appear to have had a powerful effect on Republican voting intentions.” Here, the numbers are stunning. “In Georgia, for example, a Monmouth University poll in late July found that 60 percent of Democrats but only 28 percent of Republicans were likely to vote by mail.” This bears repeating. Nearly 7-in-10 Georgia Republicans plan to vote in person. The likely result is what pundits refer to as the red mirage.
On election night, Trump will amass a commanding lead in crucial battle ground states. Only much later––as absentee ballots are counted–– will the returns reflect the true outcome. But it will be too late. Trump will seize on the confusion and declare a premature victory, launching the country into partisan frenzy.
Again, Gellman is prophetic: “The turbulence of that interval, fed by street protests, social media, and Trump’s desperate struggles to lock in his lead, can only be imagined.” A series of lawsuits will follow. If Trump can challenge enough absentee ballots on technicalities, he may just tip the election.
However, the far more likely outcome is stalemate.
The date to keep in mind is December 8. Colloquially known as safe-harbor day. That is the deadline for state legislatures to appoint the 538 members of the electoral college. Although custom dictates that we choose electors based on the popular vote, nothing in the constitution mandates this. Gellman argues that Trump is unscrupulous enough to seize on the loophole.
Republican operatives are clear. They intend to lobby Republican state legislatures to pledge electors to Donald Trump, irrespective of the state-wide vote. If they meet resistance from Democratic governors, they will then move to have the state-wide vote nullified. Here, Gellman’s interviews with party officials are particularly damning. There is no secret plot. Trump intends to steal the election in plain sight.
With no candidate reaching the requisite 270 electoral votes, the election will go to the US House of Representatives. There, so-called logic-bombs and poorly worded statutes make the outcome uncertain. One possibility is that each state delegation casts a vote. Currently, Democrats have the majority in 23 state delegations, whereas Republicans have the majority in 26.
In this scenario, Donald Trump would be re-elected.
Trump has exposed the soft underbelly of our democracy and Gellman, his intent to exploit it. Uncodified norms must be formalized in law. Loopholes must be closed, statutes specified, and reforms undertaken. This is a matter of urgency. For better or worse, Americans cannot rely on unwritten practices and good will alone to govern. Lest the constitution become a suicide pact.