Biden Won’t Win On Election Day
We have learned from conflicts ranging from World War 1 to Iraq that it is entirely possible to win the war and lose the peace.
In politics, nowhere was this more evident than in the 2000 election pitting George W Bush against Al Gore, where the race was essentially tied on Election Day. We know that a full recount would have resulted in a Gore win, but the race was lost in the aftermath. Republicans proved more adept and ruthless in post-election maneuvering, while the Democrats pursued a timid and ultimately losing strategy.
Joe Biden and the Democratic Party now face an election that is again poised to be not one battle but two: a traditional race toward Election Day, and a fight after Election Day to count the votes and protect the result. That Donald Trump will attempt an all-out assault on the integrity of the vote is almost a foregone conclusion. He questioned the legitimacy of the count when he won the Electoral College in 2016, and is already openly trying to rig the result. There are multiple ways that — absent a clear and convincing Biden victory — Trump might lose the election and still win via post-election skullduggery.
For example, Trump and Republicans can try to invalidate or sway the counting of mail-in votes via litigation and pressure on election officials, turn “faithless electors” in swing states to reduce Biden’s Electoral College margin below the critical 270 threshold, leverage the process in congress for certifying the Electoral College vote, or appeal to the Supreme Court to intervene in a contested result.
Several authors have gamed out these scenarios ( me included), but the definitive work in this genre — which might be termed democratic reality horror — comes from Amherst College professor Lawrence Douglas in his book Douglas lays out three shockingly realistic pathways for Trump to win after losing, roads which could ultimately lead to a total constitutional meltdown.
A bi-partisan group of experts who conducted a wargame exercise around these kinds of maneuvers found them all too real, and all too hard to fix once the disaster starts to unfold. So Democrats need to start preparing right now to win not just the first battle, but also the battle that will follow unless Trump loses by a significant margin.
There are steps that Democrats can take, and are already taking. And it is important to note that these measures are not only pro-Democratic but pro- democratic: if Trump is truly the winner, each of them would be equally protective of the integrity of the vote for Republicans and the legitimacy of the election. This matters for those who care about American democracy. A Trump second term is a likely disaster. A failed presidential election and constitutional crisis is a certain one. This is not just a fight against Trump. It is a fight for our whole system of government.
Here, then, are the “Democracy Dozen” — twelve steps that those who care about protecting our constitutional government from a Trump assault can take:
1) Prepare the public for a “blue shift”
Absentee and provisional ballots tend to break toward Democrats, a dynamic that election scholar Ned Foley dubbed “blue shift.” For example, in 2018, Arizona’s Democratic Senate candidate Kyrsten Sinema gained 71,000 votes during post- Election Day counting. With an unprecedented scale of Covid-driven mail-in voting, it is likely that this Election Day will really be an election month. Trump may appear to be winning several key states on election night before all the votes are actually counted. This sets up weeks of opportunities for Trump to question the count or attempt to shut it down outright — both of which he tried during the 2018 Florida election, claiming that state-mandated automatic recounts were just “unethical liberals [trying] to steal this election.” Since we’ve seen how an apparent lead on election night (Florida 2000) can become settled in the popular mind and create an uphill climb for Democrats, the Biden campaign should undertake a dedicated campaign of public and media education to set expectations in advance. The public needs to know that this election will take weeks to unfold, and that a result requires that all votes be counted.
2) Organize a 20-state legal protection strategy
Democrats led by veteran attorney Marc Elias are currently waging legal fights in 29 states to push back against voter suppression and ensure access to mail-in voting. They need to be equally prepared for the litigation that will come after Election Day. Fortunately, the 2000 Florida experience delivered important lessons about legal preparations, while the marathon 2008 Minnesota Senate recount (which Elias led for Democrats) caused senate campaigns to prepare a full post-election vote count legal strategy as a standard operating procedure. This year, Democrats will need to enter Election Day prepared for legal battles in the 20 most competitive states. They will need legal teams experienced not only with election litigation, but also specifically versed in the highly-confusing Electoral Count Act of 1887, the law on the books dealing with how to handle controversies in counting a state’s Electoral College votes.
3) Monitor everything
As Myrna Pérez of the Brennan Center for Justice has pointed out, there is still going to be a substantial amount of in-person voting this year despite the pandemic, and it may be the preferred means for communities of color. Democrats will need to redouble their usual efforts, even in the midst of the pandemic, to monitor activities at polling stations and document vote-suppressing activities and disruptions. In addition, Democrats should try to insert language in the current Covid economic relief legislation to prevent the Trump administration from deploying extreme tactics, such as deploying ICE agents on raids or at polling locations in key states on Election Day to intimidate or harass Latinx voters.
4) Prep the coup states
In 2018, Republican-controlled legislatures in Wisconsin and North Carolina met after the election to curtail the power of incoming Democratic governors in a blatant partisan power grab. Following a national election, it is certainly conceivable that states with unified Republican control of government and a close election result could attempt to change their laws for appointing electors to the Electoral College after Election Day. While these attempts would surely be subject to litigation, the fact that courts have given deference to state legislatures in setting the means of appointing or replacing electors means that the outcome of any court cases would be uncertain. Pivotal states like Texas, Ohio, Arizona, Georgia, and Florida fall in this category. Some have legislative rules, including quorum rules, that may allow Democrats to prevent such efforts — these kinds of maneuvers have actually been necessary fairly recently (see the Texas Eleven in 2003). While these tactics are far from desirable, if used to prevent what amounts to a constitutional coup, Democrats should be prepared.
5) Tell voters to vote early
Marc Elias has pointed out that due to manufactured Postal Service funding shortfalls that have slowed mail delivery, “in states where voters can request absentee ballots within seven days of Election Day, it’s highly unlikely that voters will be able to return mail ballots on time. And in states where voters can request absentee ballots within three days of Election Day, it will be basically impossible for some voters to return mail ballots on time.” The simple, albeit partial, solution? Democrats need to put on a full-court messaging press to voters about the importance of voting early, and well before the deadlines.
6) Fund the postal service
See above. This is an issue to fight hard for in the Covid relief bill.
7) Fight the hacks
Speaking of issues to fight for, the security of election systems remains deeply compromised. We know that Russian hackers have previously penetrated election systems in all 50 states. Security experts estimate that we need $2 billion to upgrade election systems. With under 100 days to go before the election, there is a limited amount that Congress can do to prevent malicious interference by hackers, but even getting started on security reviews and implementing the most obvious patches could help.
8) Organize “Protect the Count” Rallies Now
In 2000, Republicans organized the “Brooks Brothers Riot,” a cadre of Republican operatives flown in to disrupt a meeting of election canvassers in Miami-Dade County, Florida (among the organizers was Roger Stone). It worked: the count was shut down two hours later. This time, Democrats cannot be caught flat-footed. They should be prepared to assemble volunteers to gather outside counting locations, show public support for the process, and make it impossible for Republicans to ambush election officials.
9) Get John Roberts’ Attention
Somewhere along the way, most election standoff scenarios reach a moment where the Supreme Court may get involved. Given the Republican-appointed majority on the court and the history of Bush v. Gore, analysts usually (and rightly) assume that this avenue gives Trump an advantage. However, John Roberts has shown that he is keenly aware of the institutional credibility of the court and the weight of evolving public opinion. As New York Times Supreme Court Analyst Linda Greenhouse put it, the Roberts message to Trump has been “don’t take the Supreme Court for granted.” Democrats shouldn’t either. They should be prepared to organize mass demonstrations to pressure John Roberts into seeing that another Bush v. Gore result for Trump would imperil our constitutional system and that the credibility of the court would collapse.
10) Assemble a Constitutional Coalition
In 1974, senior Republican lawmakers approached President Richard Nixon to tell him that it was over, and he listened. There is little chance of that working with Trump. Nonetheless, it would still be worthwhile for Democrats to start reaching out to prominent Republicans, especially former generals who have served under President Trump, who might serve as elders to support a safe, constitutional resolution to any standoff. Republican leaders who oppose Trump like Condoleezza Rice, Colin Powell, Cindy McCain, and George W. Bush could provide important public validation for a close Biden victory. Former generals and Trump cabinet veterans like James Mattis, John Kelly, and H.R. McMaster could provide an even more vital service: working with current pentagon leaders to forestall any attempt by Trump to illegally make use of the military to keep himself in office.
11) Tear down that red wall
Both the House and Senate have a role to play in certifying the results of the Electoral College, and both present opportunities for Trump to contest or overturn the results of the election. Control of the Senate’s role in this process provides an important backstop. As Lawrence Douglas put it: “if Democrats are able to control the Senate, Trump could create chaos and civil unrest, but ultimately I don’t think he would be able to create a constitutional crisis.” As of today, the chances of Democrats being in the majority as of the January 6, 2021 certification date appear to be at least 50–50, if not better. But Democrats should leave no stone unturned. They should conduct initial discussions with Mitt Romney before the election about what he considers out of bounds actions by Trump to hold on to power. And while Republican support for Trump has seemed almost impenetrable so far, Democrats should continue pushing their Republican counterparts on what the bounds might be.
12) Put a thumb on the scale in key House races
If no candidate achieves an Electoral College majority, the presidential election goes to the US House of Representatives. But it’s a weird process. Each state gets only one vote, which means that having the majority of representatives in a state means you control the vote from that state. Currently, Republicans hold a 26–23 (with one state tied) advantage in state majorities, meaning that Trump would win an election that went to the House. However, states like Florida, Montana, Texas, Michigan, and Pennsylvania have ultra-slim state majority margins and also feature House races that are highly competitive. The upshot? Flipping as few as three key House seats would flip three states, and thereby give control of the majority of state delegations to Democrats, meaning that Biden would win any election that ended up in the House. While they are investing in all of these competitive races, Democrats should put an added emphasis on winning the ones that would give this extra layer of protection.
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Originally published at https://www.alternet.org on July 29, 2020.