POLITICS
22/09/2020 10:16 AM AEST | Updated 22/09/2020 10:16 AM AEST

The Nightmare Scenario That Keeps Election Lawyers Up At Night -- And Could Hand Trump A Second Term

A "red mirage" on election night and a post-election "blue shift" could lead to an unprecedented constitutional crisis just as the Supreme Court is in turmoil.

Photos: Getty Images

Americans will almost certainly go to bed on Nov. 3 without knowing who won the presidential election. Since millions of people will vote by mail, constraints on time and resources will slow ballot counting into potentially a weeks-long process. Voting patterns suggest it’s likely that President Donald Trump could end Election Day in the lead in certain key states, only to be overtaken by Democratic opponent Joe Biden when more votes are tallied. 

This could create a nightmare scenario during the three months stretching from Election Day to the Jan. 20 inauguration: a battle on the state and congressional level over who is the legitimate winner. This could include Congress reconvening on Jan. 6, presided over by Vice President Mike Pence, with no consensus over its potential role in choosing the next president.

This is arguably the most likely of the contested-election narratives, and now the Supreme Court — which would likely have to rule on the legal arcana at issue in this epic battle — has been thrown into its own nightmare scenario with the death of Justice Ruth Bader Ginsburg

Trump is already setting the stage to declare that anything but a victory for himself means the election is rigged. His penchant for conspiracism and open contempt for American democracy, combined with this procedural confusion, could lead to a genuine democratic crisis. That may not lead to the sort of authoritarian takeover that some, such as Trump’s former top political adviser Roger Stone, have dreamed of. But Trump could use the courts, along with Republican allies at the state level and in Congress, to cling to power. 

“Trump is a norm breaker,” Rick Hasen, an election law expert at University of California-Irvine and the author of “Election Meltdown.” He has lied repeatedly about the security of mail-in balloting. He has made numerous unsupported claims about how the only way he could lose his election is if it is rigged against him. And so, he’s been actively casting doubt on the election process and creating the conditions where I think both sides believe the other side is primed to steal the election.”

Here’s how it could play out. 

The Nightmare

ASSOCIATED PRESS
A record number of mail-in ballots are expected to be cast in the 2020 election. This could create the prelude to a constitutional crisis.

At the end of Nov. 3, hundreds of thousands of ballots will likely remain left to count in key states, particularly Michigan, Pennsylvania and Wisconsin.

It will be nearly impossible for election clerks on Election Day to count the record number of absentee and provisional ballots that are anticipated to be cast in those three states, as well as in other crucial battlegrounds. Election officials in many states are underfunded and under-resourced, and in some by law are not allowed to begin counting ballots until Election Day. 

Polling and absentee ballot request data from some states show that Democratic voters are far more likely to cast their ballots via the mail during the coronavirus pandemic and that Republicans are more inclined to vote in-person. In Pennsylvania, for example, 70% of all absentee ballot requests were made by registered Democrats, as of Sept. 14. 

A dynamic known as the “Blue Shift” already has shown that ballots counted after an election day tend to favor Democratic candidates, as their voters are more likely to cast provisional ballots in-person or return their absentee ballots closer to the receipt deadline. 

Combine the existing “Blue Shift” with the pandemic-induced jump in absentee voting and it becomes clear that a great divergence could emerge between the Nov. 3 returns and the actual final tally when late-arriving absentee and provisional ballots are counted. Trump could easily go to bed with a lead in key states based on an incomplete tally on election night and wake up to see that lead eroding based on the totally normal counting of valid ballots ― a “red mirage,” as one political consultant called it in an interview with Axios.

“It’s easy to see those normal corrections and calibrations that happen after Election Day being fodder for conspiracy theorists like Trump,” Hasen said.

This nightmare scenario continues as lawsuits are filed by both parties over which votes should or should not be counted. But as the late-counted ballots begin to turn the three key Rust Belt states of Michigan, Pennsylvania and Wisconsin in Biden’s favor, Trump can be expected to declare the whole vote-counting process illegitimate.

Perhaps some irregularities will occur ― a high number of rejected ballots due to normal voter errors, or maybe too many of Trump’s voters try to vote twice, as he has encouraged, something he could point to as election fraud. But Trump could also call the election tainted even if there is no reason to do so ― a notably disturbing possibility.

“There is this risk that the parties start fighting over the vote tallies even when there’s no problem with the vote tallies,” said Ned Foley, an election law expert at Ohio State University’s Moritz College of Law who wrote a paper in 2019 about this exact scenario. “We could see a situation where they’re fighting even when the system is working properly.”

Trump has already prepared for this potential situation. He says mailing ballots to voters is “unfair.” He boasts, without evidence, that the 2020 election will be “INACCURATE & FRAUDULENT,” and “the most rigged election in history.” Foreign governments will “forge” mailed ballots, he asserts, again without foundation. “People that aren’t citizens, illegals, anybody that walks in California is gonna get a ballot,” he tweets, incorrectly.

And he has set a bar for when the outcome is declared. “Must know Election results on the night of the Election, not days, months, or even years later!” Trump tweeted in July.

This is just an update of what Trump said in 2018 after the Florida Senate race came down to ballots counted after Election Day. “An honest vote count is no longer possible-ballots massively infected. Must go with Election Night!” Trump declared. (Republican challenger Rick Scott prevailed over Democratic incumbent Bill Nelson in that race.)

Assuming Trump exhausts legal avenues in the courts, the scenario continues. Trump says, “Must go with Election Night,” again. 

Since Michigan, Pennsylvania and Wisconsin ― as well as North Carolina ― have divided government with Democratic governors and GOP-controlled legislatures, Trump calls on Republicans in those legislatures to stop votes from being counted and to certify him the winner of their electoral votes ahead of the scheduled Electoral College vote on Dec. 14. They bend to his request, citing Article II of the Constitution and early examples in U.S. history of state legislatures certifying electors to justify their action, and announce that they view the “blue shift” as evidence of fraud ― even if there has been nothing fraudulent about it. 

Meanwhile, the state courts and Democratic governors of these states certify the final vote total for Biden and his electors, declaring that the approval of Trump electors by the GOP-controlled legislatures is unconstitutional. Two sets of electors ― one for Trump, the other for Biden ― are sent to Congress.

The Precedent

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In the controversial presidential election of 1876, the outcomes in four states were in dispute, creating a stalemate that took weeks to resolve before a winner was declared.

American presidential elections are oddly not decided by which candidate receives the most votes. Instead, each state is apportioned a number of electoral votes based on its number of senators and representatives ― the lowest number being three and the highest being California, with 55. When a candidate wins a given state, it is a slate of electors that is being approved by the popular vote. 

Elections rarely end with the winner of the overall popular vote and electoral vote diverging. It happened three times in the 19th century and twice in the 21st. But it’s been more than a century since an election ended with a dispute in Congress over competing slates of electors.

In 2000, the disputed election of Republican George W. Bush over Democrat Al Gore, determined by a margin of 537 votes in Florida, never moved outside of a fight within the state because the Supreme Court halted the recount.

“If you thought Bush vs. Gore was an anxiety-provoking dispute, the kind that jumps the state boundaries and goes to the Congress is a much bigger deal,” Foley said.

The last time multiple slates of electors were sent to Congress does not provide much help in how it could be sorted out in 2020. The disputed 1876 election between Republican Rutherford Hayes and Democrat Samuel Tilden came down to who won Florida, Louisiana, Oregon and South Carolina. Complicating matters, the three former Confederate states ― Florida, Louisiana and South Carolina ― sent two separate slates of electors to Congress. At the time, Congress was split between Democrats, who controlled the House of Representatives, and Republicans, who controlled the Senate.

As one would expect to happen in the hyper-partisan post-Civil War environment, Democrats in the House affirmed the Tilden electors and Republicans accepted the Hayes electors. An argument ensued over which body got to choose, based on each chamber’s preferred interpretation of the Constitution’s 12th Amendment (which was enacted after the disputed election of 1800 to clarify the process of electing the president and vice president). 

The 12th Amendment, unfortunately, didn’t have anything to say about the 1876 impasse. The two chambers eventually decided to appoint a commission made up of 15 members ― five each from the House, Senate and Supreme Court. The end result was the Compromise of 1877, which handed Hayes the presidency in exchange for him pulling federal troops out of the former Confederacy, leaving formerly enslaved Blacks to fend for themselves against white terrorism and a new system of racial apartheid. The resolution did not occur until two days before Inauguration Day (which then was in early March).

In response to this barely averted constitutional crisis, Congress enacted the Electoral Count Act of 1887 in an attempt to formalize procedures for how Congress should handle future Electoral College disputes. But the law, like so many other late-19th century laws, was poorly written, cryptic in its meaning and riddled with ambiguities and inconsistencies. Even today, scholars cannot agree on a shared reading of the law. And that hazy law will undergird the entire process by which Biden or Trump would ultimately prevail in the nightmare scenario.

The Process

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Then-Vice President Al Gore was put in the uncomfortable position of certifying before Congress in early January of 2001 that George W. Bush had defeated him in the hotly contested and controversial election two months earlier.

Congress has a clearly defined role in accepting the results of a presidential election. Both congressional chambers will meet on Jan. 6 in a session presided over by the President of the Senate, who at that point will remain Vice President Mike Pence. His job is to open the certifications from each state in alphabetical order, which are then read aloud by “tellers.” He will then ask whether members of Congress have any objections to the submitted slate of electors ― objections that must be made by at least one House member and one Senate member.

In general, objections aren’t made ― lawmakers are supposed to do so only if they believe a state’s submission of electors was corrupted in some way. It’s not unprecedented, however: In 2005, then-Rep. Stephanie Tubbs Jones (D-Ohio) and then-Sen. Barbara Boxer (D-Calif.) objected to Ohio’s certification of electors for Bush’s reelection win over Democrat John Kerry. The House and Senate then separated to their respective chambers for two hours of debate before both voted down the objection. In both 2001 and 2017, Democrats in the House attempted to object to the submission of certain state electors, but were not joined by a senator.

If Congress is faced with multiple competing slates of electors ― such as a set certified by a Democratic governor based on a popular vote for Biden and one certified by GOP state legislators for Trump ― matters become more complicated. Near-total agreement exists that if both chambers of Congress vote in favor of one of the two competing slates, that one will be the slate accepted. The problem emerges if the House and the Senate split on which slate to accept.

The predominant view among legal experts is that the law requires Congress to accept the electors certified by the governor. This is the interpretation affirmed in a report by the National Task Force on Election Crises, a cross-partisan ad hoc group of experts across a range of disciplines related to elections.

But there are dissenting opinions. A handful of scholars, including one writing for the Congressional Research Service, interpret the law as nullifying the electors of a state that submits competing slates if Congress cannot agree to accept one of them. Even if legally dubious, that could be enough to nullify electors of a given state if a Republican-controlled Senate adopts this interpretation. 

If a divided Congress were to go down this path, two potential scenarios could result ― each with potential for chaos.

In the case where Congress nullifies the electors of a given state or multiple states, neither Trump nor Biden may meet the necessary threshold of 270 electoral votes to win the presidency. This would throw the election to the House of Representatives, where each state delegation would vote for the president. 

The candidate who wins the most state delegation votes would become president. As of now, Republicans have a majority in 26 state delegations, Democrats control 22 and two ― Michigan and Pennsylvania ― are evenly divided. That would, most likely, hand the election to Trump, though the outcome of this year’s House races could change the math.

Alternately, a Democratic-controlled House could pull out of the electoral vote count after rejecting any effort by a Republican-controlled Senate to nullify a state’s electors or appoint electors for Trump. House Speaker Nancy Pelosi (D-Calif.) could declare that the chamber will only accept the electors certified by governors, based on a full vote that includes late-arriving absentee ballots. 

If the Senate refuses to agree, Pelosi could then say that since Congress has not approved a White House winner, that kickstarts the 20th Amendment that details what happens when there is no president-elect. Pelosi ranks as next in line after Trump and Pence, and she could say that she would serve as acting president starting on Jan. 20, when the first term for the GOP duo expires.

All of this could be adjudicated by the Supreme Court ― which could soon hold a 6-3 conservative majority if Republicans appoint a new Trump nominee before the inauguration of a president. If not, though, it would create an existential crisis.

“That’s a genuine constitutional crisis,” Foley said. “Because if that is protracted all the way to noon on Jan. 20 ― we know President Trump’s first term ends on Jan. 20 ― and then the military needs to know who gets the nuclear codes, starting at noon, who’s the new commander in chief?”

Whether the parties end up in such a situation will be heavily influenced by the actions of Trump, as well as the demands of protesters in the street. 

During the 2000 recount in Florida, Republican operatives contrived protests, including the infamous Brooks Brothers Riot, to pressure state election officials to stop counting ballots. Democrats have already said they will not cede protest activity to the GOP, as they did in 2000.

But right-wing protests that have emerged in support of Trump during his term in office don’t look like the work of astroturfing staffers dressed in the attire of the White Anglo-Saxon Protestant elite. He has the backing of a broad network of heavily-armed militia groups, far-right street-fighting gangs, white supremacists and a pseudo-religious cult that believes Trump is a demigod operating in secret to prevent the apocalypse

Trump has primed these supporters to potentially reject the election results with his false statements about voter fraud and absentee voting. He also routinely celebrates violence against his opponents, casting them as subversive, alien threats to the American way of life. The Republican National Convention featured a married couple as primetime speakers solely because they pointed guns at a peaceful protest that they imagined threatened their property. The calls for violence coming from some Trump supporters, such as Stone and disgraced Health and Human Services official Michael Caputo, likely will only increase as the election draws closer.

Public pressure, including violence in the streets, could push reluctant Republicans in power to yield to Trump’s most wild demands, even if he has no legitimate case to question the election.

It Was All A Dream

ASSOCIATED PRESS
Democratic presidential candidate Joe Biden and his running mate, Sen. Kamala Harris of California, lead in the polls with less than two months before the election. But President Donald Trump is creating the potential for a constitutional crisis by insisting an election he loses must have been "rigged."

Such an election meltdown nightmare that could paralyze the nation remains an edge-case scenario.

It requires a massive confluence of factors in which many different actors with different political and personal desires follow Trump’s chaotic lead. Republican state legislatures may choose to not fulfill a Trump request to certify electors. Senate Republicans may choose not to accept those electors.

A state-level version of this scenario occurred in Kentucky in 2019 when then-Gov. Matt Bevin, a Trump-endorsed Republican, declared that he only lost to Democrat Andy Beshear due to voter fraud in “urban areas,” an accusation the incumbent made up out of whole cloth. Bevin called on the Republican-controlled Legislature to overrule the election and install him in power, which GOP leaders considered. But after Bevin failed to produce any evidence of voter fraud, these Republicans, along with U.S. Senate Majority Leader Mitch McConnell (R-Ky.), refused to accede to his bid.

Democrats could simply win control of the incoming Senate in November’s vote, smothering this entire scenario early on. The Supreme Court could settle any number of questions, from disputed vote counts to the proper interpretation of the Electoral Count Act ― although any potential court ruling on these topics now leans more in Trump’s favor after Ginsburg’s death. Or the election could be outside the margin of cheating.

“The most likely scenario is still: The election takes place and we have a winner and it’s clear and that’s that,” Hasen said. “But, you know, there’s a non-negligible chance of a meltdown like this.”

The election results may very well be known the night of the election. For instance, Florida allows officials to canvass absentee ballots ahead of Election Day, meaning the state’s results will be known much faster than those in the three Rust Belt states on which the nightmare scenario likely hinges. If Biden wins Florida, the biggest electoral-vote prize among the closest swing states, he has almost certainly won the presidency.

In the end, it may come down to whether a higher power answers the Election Administrator’s Prayer, a pithy saying passed down from election to election by the people who run them. In November 2000, the director of the National Association of Election Officials provided his version of the prayer in a USA Today report that explained how machines help to tabulate and count votes: “God, please let the winner win in a landslide.”

But God didn’t answer the prayer that time.

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