Trump to baselessly claim that a surge of Democratic
mail ballots in the days after Nov. 3 are fraudulent
and shouldn’t be counted.
Three states loom largest in this concern: Michi-
gan, Wisconsin and Pennsylvania. All three are key
battlegrounds that have made a rapid and politically
fraught push to expand voting by mail this year. All
have Democratic governors and Republican legis-
latures that have fought bitterly over election rules
in state and federal courts. All have a limited abil-
ity under state law to count or process mail ballots
before the polls close. Other quirks, like a “naked
ballot”—a legitimate ballot that a voter has failed to
enclose in the required security envelope—may cause
further uncertainty; a Pennsylvania court ruled this
year that such ballots would not be counted in that
state, which Trump won by just 44,000 votes. It all
could add up to a presidential race that’s too close to
call for days or weeks.
But for these delays to matter, the tally
would have to be very close, and the presi-
dential race would have to hinge on those
three states. Current polls do not show a
particularly tight race in those states, nor
nation wide. And the polls have been far
more stable, with far fewer undecided vot-
ers, than they were in 2016. Faster-counting
states like Florida and Arizona, which have
demonstrated the ability to rapidly tabulate
large volumes of mail ballots, could well de-
cide the election, rendering any uncertainty
in the Rust Belt irrelevant.
Still, suppose we do end up in a version
of the worst-case scenario. The election’s
outcome is unclear after days or weeks, and
Trump is muddying the waters—lobbing
lawsuits, disputing the count, accusing his
opponents of cheating and convincing large swaths
of the electorate that something untoward is going
on behind the scenes. Mainstream media outlets
and independent analysts urge caution or pro ject a
Biden win, but Trump calls it a left-wing coup and
refuses to concede. Conservative media, fellow Re-
publicans and even the Department of Justice, all of
which have enabled Trump’s norm busting for the
past four years, back him up. Partisans take to the
streets. America plunges into uncertainty.EvEn if this happEns, experts stress that Trump
does not have the power to circumvent the nation’s
labyrinthine election procedures by tweet. Elec-
tions are administered by state and local officials
in thousands of jurisdictions, most of whom are ex-
perienced professionals with rec ords of integrity.
There are well-tested processes in place for dealing
with irregularities, challenges and contests. A can-
didate can’t demand a recount, for example, unless
the tally is within a certain margin, which varies bystate. “The candidates themselves have almost no
role in this process,” says Vanita Gupta, president
of the Leadership Conference on Civil and Human
Rights and a top Justice Department official in the
Obama Administration. “While people may make
claims to powers and make threats about what they
may or may not do, the reality is that the candidates
don’t have the power to determine the outcome of the
election. It’s really important that voters understand
that while a lot about our system is complicated, this
isn’t a free-for-all.”
Whether or not Trump concedes has little bearing
on the election’s resolution. Nor can he or any other
candidate simply decide to put the election in the
hands of the Supreme Court, as Trump has alluded
to and liberals have fretted about. There’s a legal pro-
cess to get there. The oft-invoked Bush v. Gore, the
Supreme Court case that resolved the 2000 standoff,
was decided narrowly, specific to a particular situa-
tion in a particular place, notes Joshua Geltzer, ex-
ecutive director of the Institute for Constitutional
Advocacy and Protection at Georgetown Law. “These
things Trump is saying—toss all the ballots, end the
counting—those are not legal arguments,” he says.
Some fear a scenario in which, after weeks of un-
certainty, the time comes for states to name electors
to the Electoral College, and Republican legislators
try to appoint their own rosters, overruling their
state’s voters and forcing courts or Congress to re-
solve the matter. But experts point to the 1887 Elec-
toral Count Act, which Congress passed to prevent
a repeat of the “dueling electors” of 1876. “It’s un-
thinkably undemocratic to hold a popular vote for
President and then nullify it if you don’t like the re-
sult,” says Adav Noti, chief of staff at the non partisan
Campaign Legal Center. While the possibility can’t
be entirely dismissed given Republicans’ fealty to
Trump, judges would likely take a dim view of such
an effort, not to mention the political storm that
would ensue. “It’s pretty clearly illegal under fed-
eral law, and it almost certainly would violate the
constitutional rights of the voters,” Noti says. “They
may try it, and it would be a serious situation, but I
don’t think it would succeed.”
The past few years have convinced many
Americans to expect the unlikely, haunted by
failures of imagination past. But when it comes to
post-election mayhem, people’s imaginations may
be getting the better of them. Hyping far-fetched
scenarios has a pernicious effect: it erodes people’s
confidence that their vote will count, dampening
the shared trust essential to democracy. “Supposing
Armageddon comes, you do want people having
thought of it,” says Ginsberg, the GOP election
lawyer. “But by amplifying it as if it’s realistic, you
create a very real problem of people not having faith
in the system by which we choose our leaders. And
SEPTEMBER DAWN BOTTOMS FOR TIME that’s really harmful.” •