While working on a book about the peaceful succession of power, I came to realize that built into our system of presidential elections is a Chernobyl-like defect: placed under the right conditions of stress, the system is vulnerable to catastrophic breakdown. The risk of such an electoral meltdown ordinarily is rather small, but this November promises – in a manner last seen in 1876 –to present a combination of stresses that could lead to epic failure.
The problem begins – but does not end – with President Trump, who, in his recent interview with Chris Wallace, once again reminded the nation that losing is not an option. He will reject any election that results in his loss, claiming it to be rigged. Alarming as this may be, Trump alone cannot crash the system. Instead, an unusual constellation of forces – the need to rely heavily on mail-in ballots because of the Covid-19 pandemic; the political divisions in the key swing states of Michigan, Wisconsin and Pennsylvania; and a hyper-polarized Congress – all work together to turn Trump’s defiance into a crisis of historic proportions.
Should Trump lose decisively – not only in the popular vote, but in electoral college, too – his capacity to engage in constitutional brinkmanship will be limited
Consider the following scenario: it’s 3 November, 2020, election day. By midnight, it’s clear that former Vice-President Biden enjoys a substantial lead in the national popular vote but the electoral college vote remains tight. With the races in 47 states and the District of Columbia called, Biden leads Trump in the electoral college vote 252 to 240, but neither candidate has secured the 270 votes necessary for victory. All eyes remain on Michigan, Wisconsin and Pennsylvania and their 46 electoral college votes.
In each of these three states, Trump enjoys a slim lead, but the election-day returns do not include a huge number of mail-in ballots. Some states, such as Colorado, have been counting their mail-in votes from the day they arrived, but not Michigan, Wisconsin and Pennsylvania. These states do not allow elections officials to begin the task of counting the mail-ins until election day itself. It will take days, even weeks, for the key swing states to finish their count. The election hangs in the balance.
Only not for Trump. Based on his November 3 leads, Trump has already declared himself re-elected. His reliable megaphones in the right-wing media repeat and amplify his declaration, and urge Biden to concede. Biden says he will do no such thing. Biden knows that the bulk of the mail-in ballots have been cast in heavily populated urban areas, where voters were unwilling to expose themselves to the health risks of in-person voting. And he is keenly aware that urban voters vote overwhelmingly Democratic. Indeed, this phenomenon, in which mail-in and provisional ballots typically break Democratic, has been dubbed “blue shift” by election law experts.
The count of the mail-in ballots in the three swing states is plagued by delays. Overworked election officials, slowed by the need to maintain social distance, struggle to process the huge volume of votes. Trump’s lawyers, aided by the Department of Justice, bring multiple suits insisting that tens of thousands of votes must be tossed out for having failed to arrive by the date specified by statute. All the same, as the count creeps forward, a clear pattern emerges. President Trump’s lead is shrinking – and then vanishes altogether. By the time the three states complete their canvass of votes nearly a month after the election, the nation faces an astonishing result. Biden now leads in all three. It appears he has been elected our next president.
Only Trump tweets bloody murder. All his most dire predictions have come to pass. The mail-in ballots are infected with fraud. The radical Democrats are trying to steal his victory. The election has been rigged, he says.
Now things take an ominous turn. Michigan, Wisconsin and Pennsylvania all share the same political profile: all three states are controlled by Republican legislatures faithful to Trump. And so Republican lawmakers in Lansing, Madison and Harrisburg take up the fight to declare Trump victorious in their state. Citing irregularities and unconscionable delays in the counting of the mail-in ballots, state Republicans award Trump their states’ electoral college votes.
Yet all three of our crucial swing states also have Democratic governors. Outraged by the actions of Republican lawmakers, the Democratic governors of Michigan, Wisconsin and Pennsylvania announce that they will recognize Biden as having carried their state. They certify Biden as the winner, and send the certificate cast by his electors on to Congress.
It is now January 6, 2021, the day on which the joint session of Congress opens the states’ electoral certificates and officially tallies the votes. Normally this is a ceremonial function, but not today. Suddenly Congress is confronted with the astonishing reality that Michigan, Wisconsin and Pennsylvania have each submitted conflicting electoral certificates –one awarding its electoral college votes to Trump; the other, to Biden. The election hangs in the balance.
Seems far-fetched? And yet the nation faced a nearly identical crisis in the notorious Hayes-Tilden election of 1876, when three separate states submitted conflicting electoral certificates. With neither Hayes nor Tilden enjoying an electoral college majority, a divided Congress – a Democratic House and a Republican Senate –fought bitterly over which certificates to recognize. Congress tried to resolve things by handing the problem to a one-off special electoral commission, but partisan rancor plagued the work of that body, too. Inauguration Day neared and the nation had no president-elect –or rather, it had two rivals both claiming victory. President Grant weighed declaring martial law.
Catastrophe was avoided only by a last second disastrous compromise between the parties: Republicans agreed to remove Federal troops from the South, paving the way to Jim Crow, and in return, Samuel Tilden, the Democrats’ candidate, agreed to concede. Chastened by that experience, Congress passed a law –the Electoral Count Act of 1887 (ECA) –meant to guide Congress should a state ever again submit more than one electoral certificate. Since its passage, the provisions of the ECA have been triggered only once – that was back in 1969, and the issue was trivial, with no bearing on Nixon’s victory.
In January 2021, however, the nation finds itself in a true electoral crisis and lawmakers quickly realize that the 1887 law is glaringly deficient, failing to anticipate the most destabilizing contingencies.
And so Congress descends into acrimonious debate, with each side charging the other with attempting to steal the election. The chambers vote on which certificates to accept, the outcome foreordained. The Senate, which after the 2020 vote remains in Senate control, rejects the governors’ certificate and accepts the legislatures’; the Democratically controlled House votes in precisely the opposite fashion.
Stalemate. Both parties appeal to the US supreme court, but the Court – in sharp contrast to its intervention in 2000 in Bush v Gore – proves unable to solve the crisis. Experts insist that the court has no role to play in resolving an election dispute once it reaches Congress, a view that finds support in the ECA itself. With lawmakers in both party declaring that they would not abide by an unfavorable holding, the court chooses not to intervene.
Congress remains deadlocked, with neither party prepared to concede. As protests roil the country, President Trump invokes the Insurrection Act, deploying the military to protect his “victory.” The nation finds itself in a full-blown crisis of succession from which there is no clear, peaceful exit.
Electoral Armageddon can be avoided. Should Trump lose decisively – not only in the popular vote, but in the electoral college, too –his capacity to engage in constitutional brinkmanship will be limited. This is not to say that he won’t claim the election was rigged, only that his claim will probably not trigger a larger constitutional crisis. But should Trump’s defeat turn on the count of mail-in ballots in our crucial swing states, prepare for chaos. Our nation could witness dark times.
Lawrence Douglas is the James J Grosfeld Professor of Law, Jurisprudence and Social Thought, at Amherst College, Massachusetts. He is the author of Will He Go? Trump and the Looming Election Meltdown in 2020. He is also a contributing opinion writer for the Guardian US