In 2016, presidential candidate Donald Trump predicted that the election would be rigged against him, though the charge fell away when he went on to win. Two and a half months before that election, Roger Stone, a longtime Trump friend and adviser who was later convicted of obstructing a congressional investigation, penned an op-ed explaining how to “strip and flip” votes in electronic machines.
In 2020, both Trump and his opponent, former Vice President Joe Biden, suggest that the other may try to “steal” the election. Biden predicted Trump would seek to delay it, an idea that Trump floated several weeks later on Twitter, and try to suppress mail-in voting by undercutting the U.S. Postal Service and claiming that practice enables voter fraud. Trump and top administration officials, including Attorney General William Barr, have repeated that claim often, with Trump refusing to commit to accept the results of the election if he lost a close race, and Barr saying he would leave office on Jan. 20, 2021, provided the election results are “clear.”
On Tuesday, attorneys general from 20 states, including Massachusetts, sued the Trump administration over staffing and service changes that Postmaster General Louis DeJoy had ordered. DeJoy said Tuesday he will suspend service cutbacks until after the election to avoid the appearance that the moves could be directed against mail-in voting.
With partisan tensions, a polarized electorate, and the COVID-19 pandemic, this election is shaping up as tumultuous even if no malfeasance occurs. An Aug. 3 report from the Transition Integrity Project, a bipartisan group of political, government, and academic experts that ran election crisis-planning exercises to game out what might happen between now and Inauguration Day, predicts “lawsuits, divergent media narratives, attempts to stop the counting of ballots, and protests drawing people from both sides.” The report expects Trump “will very likely use” his presidential powers to aid his campaign and says “there is a chance” Trump “will attempt to convince legislatures and/or governors to take actions — including illegal actions — to defy the popular vote.”
Daniel Carpenter, Allie S. Freed Professor of Government in the Faculty of Arts and Sciences, says the prospect of a contested election, and even a constitutional crisis, is very real. He, who recently wrote about some similar issues in the Washington Post, spoke with the Gazette about some of the potential clashes at the federal and state level, and what remedies, if any, are available.
GAZETTE: If the presidential election is not settled by election night or shortly thereafter, there are two potential scenarios in which state officials could affect the outcome by tinkering with the Electoral College. One that’s been raised of late is if Biden appears to win the popular vote in a key state like Florida, but, say, the governor, a Trump ally, or top state election official, refuses to send any electors to be certified, what happens then?
CARPENTER: If the Electoral College is underpopulated and the courts don’t intervene, or maybe even if they do, the election is thrown to the House. Under the 12th Amendment, the states vote by delegations. The Democrats currently control a majority of members, but if the House looks exactly like it does right now, the Republicans would have a majority of delegations. And if everyone voted in a purely partisan manner, the Republicans could constitutionally, under those circumstances, award the presidency to Trump.
I argue two things. First, this “underpopulation” of the Electoral College is inconsistent with the spirit and the intent of the 12th Amendment. The procedure there was designed for multiparty dynamics in which so many different candidates win state majorities that no one candidate has a majority of Electoral College votes, as we last saw in 1824. It wasn’t intended for a world where no one can get an Electoral College majority because the states have decided not to “show up” to the College.
Second, I argue that if we’re already in the world of constitutional hardball, Speaker [Nancy] Pelosi could convene the Congress early in January and reconstitute the delegations and give the Democrats a temporary majority sufficient to elect Biden the president in that House vote. (I say the speaker, but it’s really the majority; she would have to have her majority in line.) She would use the contested election power. They would choose enough Democrats in contested elections, and do so very quickly, to give the Democrats a majority of delegations and to reverse what happened in Florida, under the scenario posed.
GAZETTE: A second scenario is that a state sends its slate of electors to Washington, D.C., for certification by Congress, but they cast votes for the losing candidate, not the winner. How might that play out?
CARPENTER: Let’s assume Biden wins a plausible victory and Republicans move to undermine it, instead of the reverse. Assume, for instance, in Arizona or North Carolina, Biden wins a state majority, but the state legislature tries to step in and say “OK, no, we are taking it upon ourselves to award our delegates to Trump.”
The first thing to note is that state legislatures used to choose the electors in lieu of popular election very commonly. South Carolina chose electors this way as late as 1868. The question is whether states would have to pass laws to allow themselves to choose the electors again. That’s critical, because if they have to pass laws, then the governor can veto the statute. And a number of states where this might be possible — Michigan, Pennsylvania, North Carolina, and Wisconsin — have majority Republican legislatures, but also have Democratic governors. So the question at this point is: Can state legislatures install their preferred Electoral College slates without first changing the statutes that give state voters the say in Electoral College slates? Or if somebody decides to bring suit against the state legislatures for declaring slates, what then happens in the state courts or the U.S. Supreme Court? It gets endlessly legally complicated here.
GAZETTE: If Trump or Biden believes the results in certain states are illegitimate or inaccurate, what is their recourse other than filing lawsuits in federal court in each of those states?
CARPENTER: Here’s both a blessing and a curse of our system. States run election administration in the United States. It’s not national. The blessing is that if you have a potential authoritarian in the White House, he can’t use the Department of Justice (or whatever “Department of Elections” would exist were the federal government to run them) to impose his will upon election administration. The curse is that states can get away with a lot of things, as occurred during the Jim Crow era and as still occurs today.
The state-level theater of election administration does open up possibilities for nefarious activity. One can imagine authoritarian governors or state legislatures declaring a COVID emergency and closing polling locations. Another would be calling out the National Guard. And at the federal level, there is fear that Trump or Barr will try using federal security forces as we saw in Portland, Ore. The official rationale would be to police places where they claimed there was “domestic terrorism,” but really what they would be doing is trying to intimidate voters, especially people of color.
Short of courts intervening, it’s not clear much can be done officially to counter this. And I say that with some disappointment. I think the Transition Integrity Project (TIP) is accurately focusing on the role of other societal actors, including corporations, the military, a range of other organizations and institutions of our society, including Republican governors, senators, and members of Congress, or former presidents, who would emerge to challenge these actions publicly, things like that.
The integrity of these elections depends a lot on both civil servants and volunteers at the state and local level. It really does. That’s both a bad thing and a good thing. The good thing is those people are not answerable to the president in any way. The bad thing is that there’s a lot of heterogeneity there, a lot of variance.
The TIP report is absolutely right to say that we have to get away from this idea of “election night.” For many times in our history, we didn’t know the result of state tallies for weeks, so that’s not historically unprecedented. If everybody behaves purely according to partisan preference, that’s going to be deeply problematic. At some point, you’re going to need high-level Republican officials from some of these states saying, “It looks like Trump has lost” if, in fact, that happens. That’s going to be really crucial to the stability, as well as to the integrity, of the process.