Donald Trump is planning on stealing the election. This statement is not a scare tactic, nor is it the opening of a discussion about American fascism. This is what Trump has told us. Worse, the Republican Party is going to protect him while he does it.
As Biden gains on Trump in state after state, the president is desperate. He is convinced that the only way he can stay in office is to discredit the election itself and take control of the counting process.
The beginning of his plan is what we are hearing in the media everyday: mail-in ballots are fraudulent by definition; the only way he can lose is if the election is rigged; ballots that are not counted on election day don’t count. This propaganda barrage is designed to set us up for what he plans to do as people vote—create a constitutional crisis.
The worst case is not that he rejects the outcome. Rather, it is his intent to prevent the formation of a consensus about whether there is any outcome at all.
That this is possible is due to the many anti-democratic features that were part of our Constitution from the beginning and codified in the Electoral Count Act of 1887.
Trump is exploring many types of voter suppression. He is recruiting 50,000 goons, sheriffs, and cops in 15 states to “patrol” polling places to stop the Democrats from “stealing” the election.
In states where Republicans control the election, they are shutting down ballot places in areas where Democrats vote (as they did during the primaries). They will also use voter ID laws that they enacted after the Supreme Court crippled the Voting Rights Act. They are already purging the voting rolls of Democratic voters, especially people of color.
It is not as if the Republicans have not done this before. Forty years ago, they did just that in New Jersey when they formed the National Ballot Security Task Force to intimidate voters and steal the election. After a series of court cases in which they were found guilty of intimidating voters, the Republicans were forced to agree to a consent decree where they promised not to do it again. Unfortunately, that consent decree expired before this year’s election.
There is no constraint on what they are doing other than the mobilization of an army of poll watchers. Even now they are making thousands of robocalls, especially to African American and Latino voters, warning them that terrible things will happen if they vote by mail.
Trouble is also likely during the time between the election and the certification of the results by the next Congress.
Even before the election, the Republicans are litigating over 100 cases designed to suppress the vote, purge voter rolls, tighten the rules on provisional ballots, eliminate ballot drop boxes, reduce eligibility to vote by mail, prevent votes that are postmarked before election day from being counted, etc. And, of course, there is Postmaster General Louis DeJoy trying to sabotage mail-in votes (something five different federal judges have concluded), while the Senate and president have refused to allocate money that the U.S. Postal Service says it needs to manage the large number of mail-in ballots that everyone expects.
While Trump has no power to legally affect mail-in ballots (a choice millions of us will make to protect ourselves from the pandemic), his crusade against them is designed to discredit them and undermine Biden’s expected victory. His overt threats to seize these ballots as fraudulent is continuously repeated. At the same time, he is encouraging his supporters to vote in person on election day to create what many call a “red mirage,” allowing him to claim victory on the night of the election before the millions of mail-in votes are completely counted.
There are many terrible scenarios that people are preparing for, including “2nd amendment” Trumpists turning up at inner-city polling places to disrupt the election. It is not hard to see how that could result in chaos. Just one week ago, Trump supporters descended on a polling place in Fairfax, Virginia, formed a line that voters had to circumvent, and chanted “Four more years!” Would Trump decide to invoke the insurrection act? Would Barr send in U.S. marshalls to seize the ballots to protect them?
Shouldn’t we believe Trump when he refuses to say that he will abide by a peaceful transfer of power if he loses?
Despite all this, it is important to keep in mind what Michael Podhorzer of the AFL-CIO wrote: “We cannot allow Trump’s constant threats to undermine voters’ confidence. . . . This close to the election, we do Trump’s work for him when we respond to his threats rather than remind voters that they will decide who the next president will be if they vote.”
In our system the concession speech by the losing candidate is traditionally seen as the “recognition of the winner.” Without a concession, Trump, the Republicans, and the right wing will continue to argue that the election was stolen, and that Trump is the rightful president.
During this “interregnum” there is no one source of authority. It is conceivable that Trump will file case after case in the federal courts, trying to end up in his re-made (Trump majority) Supreme Court. It is naïve to think that the Court will “stay out of it.”
Most people think that when Trump loses, he will refuse to concede. This means that, from election night until Congress certifies who has won the Electoral College vote, we can expect Trump to challenge the idea that he has lost. This will take place while the winning electors in each state are certified, which is scheduled for December 14, 2020.
There is no doubt that Trump will try to challenge electors in states where he has lost the popular vote. Basing his claims on “rampant fraud,” it is not out of the range of possibility that he will ask Republican-held legislatures and Republican governors to appoint electors based on their determination that the official count is fraudulent, and that electing Trump is the “people’s will.”
In Pennsylvania, Republican leaders, including the state chair of the Republican Party, have already admitted that they are having such conversations. The state Senate majority leader has told the press, “If controversy persists as the safe-harbor date [Dec. 14 when the electors must be chosen] nears, the legislature will have no choice but to appoint electors.”
The longer Trump keeps the election in doubt, the more pressure these state Republicans will get from Trump, GOP leaders, and donors to act on their behalf.
Keep in mind that, as a result of gerrymandering, Republicans control both houses of the state legislatures in Michigan, North Carolina, Pennsylvania, and Wisconsin. The governors are all Democrats, and hopefully they would veto any attempt by their legislatures to steal the election; but it is not hard to see how the Trump forces can create chaos, or how this might result in the state forwarding two sets of electors to the Congress.
These electors constitute the Electoral College which votes for the president. This anti-democratic, backward provision from the early days of our nation was established to prevent the people from actually electing the president, to make sure that only “educated, responsible” people would make the choice, not a “mob.”
Who does the counting, and who decides which electors to count?
The Twelfth Amendment, which lays out the procedures by which the president and vice president are elected, says nothing about what the Congress should do if a state sends two competing sets of electors. Neither does the Electoral Count Act of 1887, which is supposed to control how the electors are counted. There will be arguments about whether the vice president, as the head of the Senate who is supposed to receive the states’ certifications, or a vote of both houses will prevail. Luckily, this will be the new Congress, so if the Democrats take back the Senate, Trump and the Republicans can be blocked (another reason to elect a Democratic majority in the Senate).
If no majority of the electors is determined by the Congress, the election goes to the House. But in the House, there is only one vote per state. Currently, the Republicans hold the majority in 28 state delegations to the Democrats’ 26. If the election goes to the House, it will be the new House elected in November. It is telling that Nancy Pelosi is already urging her members to make sure that they win enough new seats to make sure the Democrats have the majority in enough delegations if it comes to that.
If nothing else settles the election, Trump’s term comes to an end January 20th. If there is no president determined by that date, the Speaker of the House of Representatives, Nancy Pelosi, becomes president. It does not take much imagination to envision the chaos if that happens.
If any of these eventualities come to pass, Attorney General Barr and the president’s goons (Marshalls, Border Patrol, ICE, the Bureau of Prisons, and other federal police forces) will step in and try to take power by force.
All of this is to say that the only way to safeguard democracy is to turn out a massive vote for Biden, a majority so large that no one, not even Trump, can argue that he has won. Given Trump’s proclivities, the narrower a Biden victory, the more our democracy is in danger.