Every passing day makes it seem more likely that Donald Trump will be a one-term president.
With two weeks to go before Election Day, Joe Biden is comfortably ahead in national opinion polls, and is leading in enough battleground states to make him the clear frontrunner to win the Electoral College.
Given these political realities, the failure of President Trump to commit to a peaceful transfer of power has caused alarm among Democrats, and many Republicans, too. It raises the question of the lengths to which Trump might go to hold onto power in the face of a clear electoral defeat. In the extreme case, he might refuse to leave the White House, even following a decisive loss in the Electoral College. More likely, though, his campaign might attempt to navigate the narrow channels that the Constitution and state laws have left open.
Despite how tempting it will be for President Trump’s team to use all the tools at its disposal to hold onto power — including tools that have never been tried before and are of dubious constitutionality — in the end, the election will be decided at the ballot box.
Vote counting is highly rule-bound, with election officials more interested in accuracy than anything else. Judges, too, have little patience for bad-faith pleadings and for getting in the way of elections that have been run by the established rules.
What People Think Could Go Wrong
A parlor game has emerged to specify how Donald Trump might defy the ballot box to retain the White House. The most popular strategy goes something like this. Knowing that Democrats will cast votes by mail at much higher rates than Republicans, the Trump campaign will go to extraordinary lengths to have mail ballots excluded from the count. It could do this wholesale, by alleging widespread fraud in an effort to have a judge throw out all mail ballots in a state or large city. Or it could do this more surgically, by lodging objections against every single mail ballot cast in Democratic strongholds, such as Philadelphia.
It’s hard to see the legal basis on which the wholesale strategy would work. The second strategy may be more appealing to Republican operatives, because it could be based on established state laws and political practices; and it could be made more potent because of how it would push the vote-counting back against the deadlines that are hardwired for the casting of electoral votes.
If the counting of mail ballots could be slowed down so much that it couldn’t be completed by December 14, the day set in federal law for the Electoral College to meet, a state legislature might carry through on what the Florida legislature only contemplated in 2000: naming the electors themselves.
Three of the key battleground states where Biden is currently well ahead in the polls — Michigan, Pennsylvania and Wisconsin — have state legislatures with Republican majorities, but Democratic governors. While many legal scholars doubt the legality of such a move, a majority in one or more of these legislatures might not care what the scholars say, and let the constitutional chips fall where they may.
Even if a state legislature didn’t repudiate its state’s electoral process so thoroughly, the state could simply find itself without any electors chosen by December 14. Under certain conditions, the failure of a state to name electors could deny both candidates the constitutional majority needed for election.
In this final variant of the scenario, the House of Representatives might be called on to settle the matter, with each state delegation casting a single vote for president, regardless of its population. Given the current party configuration of the House, Trump wins.
What's Wrong With Those Scenarios
These are the types of scenarios that have convinced many people that Biden has no chance of winning, regardless of what happens with the voting.
However, there are two fundamental flaws beneath all this breathless scenario-building. The first is the idea that general, unsubstantiated charges of fraud would carry any weight in a court once counting got underway. The second is the idea that state election officials and courts would cooperate with a rope-a-dope strategy of vote counting, knowing what is at stake.
The 2020 election is already the most litigated in American history. Democrats and Republicans have had their wins and losses, but one constant stands out: the unwillingness of courts to credit unsubstantiated charges of fraud in election cases. This means that any challenges to the counting of votes after Election Day must be rooted in concrete facts, and guided by the letter of election law and regulations.
After 20 years of studying election administration up close, I have come to appreciate that the people who run elections — the state and local election administrators — are by-the-book types. These officials are often invisible. They are overshadowed by partisan officials — governors, secretaries of state and state legislators — who make sweeping announcements about how an election will be run. But, they don’t count the votes. State and local administrators do.
After 20 years of studying election administration up close, I have come to appreciate that the people who run elections ... are by-the-book types
Should a dispute arise over the counting after Election Day, and should political officials try to interfere, it will be the job of the courts to ensure that the officials are allowed to do their jobs without undue delay.
This is not to say that the coming election will proceed smoothly, or that the counting will proceed without error. If the race tightens in the next several days, the political heat will be turned up even higher; smaller and smaller imperfections will be magnified more and more in the public’s eye.
At the end of the day, though, if the election bears out the polls, Biden will be president come January 20. Donald Trump may not like it; he may unleash an endless barrage of tweets claiming he was robbed; most of his supporters may agree; and some of the more extreme elements may try to disrupt the process. Such is the sad state of American politics these days.
Whether an actual constitutional crisis emerges in the days following the election will depend on the careful, serious counting of every single vote that has been cast. As citizens, we need to be focused on that process, and not on distractions and delays of a desperate candidate.
This segment aired on October 26, 2020.