By: Monica Gandhi
By now it’s a familiar pattern: Donald Trump undermines the legitimacy of the US election, implying that mail-in voting – now prevalent due to the health crisis – will lead to “massive fraud” and won’t commit to a peaceful transfer of power.
Yet according to a study by the conservative Heritage Foundation, mail-in voter fraud is practically non-existent – only 1,298 cases have been detected over the past 20 years (with an average of one to two cases per state), a vanishingly small number that would have no impact on the outcome.
Given the potential threat to the smooth running of the 2020 elections and a peaceful transfer of power, the bipartisan Transition Integrity Project, created by Rosa Brooks of the Georgetown Law Center and Nils Gilman of the Berggruen Institute, have explored six possible scenarios.
Their goal was to identify preventive measures, minimize public disorder, and guarantee the integrity of the election.
According to the group, unless Joe Biden wins both the popular vote and the electoral college by a significant margin, Trump could well attempt to interfere directly or indirectly with the electoral process.
It is also not out of the question that he might go so far as to contest the results of the election and refuse to concede. This could play out in the courts and potentially lead to unrest and violence, particularly by extreme right-wing groups encouraged by the president’s implicit support.
Scenario 1: no clear winner on November 3
If the results are close or do not include the majority of mail-in ballots, Trump could initially appear to be the winner in some key states, since Republicans tend to vote more in person (estimated at 70%) than Democrats (between 25% and 45%).
But the final results will not be known on the night of November 3, nor even on the morning of November 4, given the time needed to count mail-in ballots – a long-held practice.
If the election is close, the uncertainty could last days, as it did in the Democratic primary for the Kentucky State Senate: Held on June 23, final results were not returned until June 30, or that of New York, where the final tally took three weeks.
During such a period, the risk of misinformation would therefore be high, which explains the importance of having a large number of poll workers and election officials on hand.
Final results may also be slowed if the Republicans chose file suits in key states. Regulations surrounding mail-in vote-counting vary from state to state: Some require ballots to arrive by Election Day, while others allow them to be tallied after November 3 as long as they were postmarked on or before Election Day.
Scenario 2: a call for violence
A second possibility is for Trump to claim victory via social media on election night, prior to the final, certified results.
Incessantly repeating baseless claims of “voter fraud”, Trump could seek to indirectly or directly mobilize his supporters to besiege polling stations in traditionally Democrat neighborhoods and potentially go so far as to attempt to destroy uncounted ballots.
Such practices are unlikely, yet the risk is real. Even if the individuals involved were identified and charged, penalties would come later and would not restore the destroyed ballots.
To prepare for this scenario, election officials and local police forces are already being mobilized. Social media, including Facebook, have finally faced up to the dangers of the online organization by far-right white-supremacist groups that the Department of Homeland Security has described as “a persistent and lethal threat”.
Such groups’ radicalization was recently demonstrated by the attempted kidnapping of the governor of Michigan, Gretchen Whitmer.
Facebook and Twitter have removed several hundred accounts and pages pushing conspiracy theories and will continue doing so. Having banned political advertising in the summer, Twitter announced that it would remove or label tweets calling the election before the official results available, including those by candidates.
Scenario 3: running out the clock
In the third scenario, Republicans could file suits contesting the results to delay their certification.
As of today, more than 400 cases on voting procedures and conditions have been filed. Rulings are handed down daily on issues such as the requirement to have a ballot certified by a witness and reception deadlines for mail-in ballots.
It is already clear that there will be several dozen additional suits surrounding the counting and potential invalidation of votes. Republicans will try to have as many votes as possible rejected in key states, and the Democrats will file actions to have them reinstated.
This year it is not simply a matter of recounting votes, as it was in 2000, when the Supreme Court, in its controversial decision Bush v. Gore eventually put a stop to the recount.
This time, courts will be asked to decide which ballots should be rejected – on the bases of lateness, the lack of a witness signature, or discrepancies between the voter signature on the ballot and that on record – and which should be counted.
For example, Texas Republicans are attempting to have 127,000 votes thrown out in Harris County, which includes Democratic-leaning Houston. The Texas Supreme Court has denied the attempt, but a hearing at the federal level is scheduled for Monday.
If litigation is referred to the Supreme Court, the court may not hear it; if it does, its ruling may not be as easily accepted as in 2000, since many Americans see the current Supreme Court as overtly partisan.
Scenario 4: resistance from Republican-led states
In cases where the results are close but tip in Biden’s favor, the political makeup of the state in question becomes critical.
In certain states where the reins of power are held by both a Republican governor and Republican legislators, as in Florida and Ohio, representatives could send Republican electors to the Electoral College, even after a Biden victory.
In states where power is shared between a majority Republican state congress and a Democrat governor, as in Michigan, Wisconsin and Pennsylvania, two competing lists of electors could be sent to Washington.
The “Electoral Count Act” of 1887 (3 U.S.C. §5), amended in 1948, specifies that the governor certifies the election results and that any dispute must be resolved within the state 41 days after election day at the latest (this year, December 14).
So in three key states – Pennsylvania, Wisconsin, and Michigan – the Democrat governor should have the last say, particularly since the law does not provide for an appeal.
Scenario 5: an Electoral College tie
Congress will open and record the votes of the Electoral College in Washington, DC, on January 6, 2021.
But this time when, as per the 12th amendment of the US Constitution, “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates,” the procedure may not be a simple formality.
Because each house is controlled by a different party, each may approve their own list, or both houses may reject the electors from some states. The legal framework is so vague that no one outcome can be certain.
In case of a tie, the 12th Amendment states that “the House of Representatives shall choose immediately, by ballot, the President” and that “the votes shall be taken by states, the representation from each state having one vote”.
As things stand, this method of adding up state representations rather that the individual votes of the 435 representatives would give the Republicans a majority to reelect their candidate.
But everything hinges on the elections in the House and Senate, also on November 3, since the final decision would be up to the members of the new Congress, to be installed on January 3, 2021.
Incidentally, the current Speaker of the House, Nancy Pelosi, is an unparalleled strategist who has already mapped the districts the Democrats must win on November 3 in order to have not only a seat majority but also a majority of blue states in the House of Representatives.
The human factor
This election cycle is an invitation to reflect on the limits of the law and the importance of the human factor. Whereas the law provides for conflict resolution in a range of scenarios, it is based on the implicit assumption that the main political players will respect the rules of the game. Unfortunately, this is not guaranteed to be the case in 2020.
Based on a wide range of polls published at the time of writing, there’s every chance that Joe Biden will be declared the winner by a large enough margin to prevent Trump from casting doubt on the results and inciting chaos.
Should he lose the election yet refuse to recognize the results, the women and men of the Republican Party have a legal and moral responsibility, at both the state and federal levels, to refuse to follow him.
This article was orginally written by Anne E. Deysine, Professor emeritus jurist and Americanist, a specialist in the United States, political, social, and legal issues (Supreme Court) – University Paris Lumières for The Conversation. We The World republished this post in a Creative Comons lisence.