The Paradox of Preparing for an Election That May or May Not Be Rigged
Hands up, conservatives: Who among you, who were sooooo upset about Hillary’s emails in 2016, would have predicted that, four years later, her victorious Republican opponent might refuse to cede power regardless of the upcoming vote?
This is the most fundamental sin against democracy, and we are staring it in the face.
And who among you can muster up even a fraction of the outrage for this that you had for that?
No one? Huh. I’m stunned.
That Republican president has gone even further, of course. He is deliberately undermining the integrity of the election, starving the Postal Service to hobble the vote, fomenting violence in the streets, and generally precipitating a constitutional crisis that has experts deeply worried about civil war and even the potential breakup of the United States. Last week, Barton Gellman, in a widely circulated piece in The Atlantic, summed it up well:
Let us not hedge about one thing. Donald Trump may win or lose, but he will never concede. Not under any circumstance. Not during the Interregnum (the 79 days between Election Day and the Inauguration) and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.
Trump’s invincible commitment to this stance….will deform the proceedings from beginning to end. We have not experienced anything like it before.
It didn’t require Kreskin to foresee this state of affairs; it’s been looming almost from the start of Trump’s reign, and I do mean reign. Indeed, we long ago moved from worrying whether Trump will leave the White House if defeated (see my piece on that way back in 2018, the first of many) to a far more insidious threat, which Gellman’s article — aptly titled “The Election That Could Break America” — lays out:
The worst case…..is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power.
So how do we go about stopping that….especially when a third of the country is fine with it? And worse, how do we go about stopping it when, with the skill of the practiced grifter he is, Trump has already convinced that third of the country that his foes are somehow guilty of his own crime?
The Perils of Principle
We are in conundrum a worthy of Kafka, or at least Lewis Carroll.
Donald Trump has spent the last two years doing everything he can to undermine confidence in the election so as to prepare the public to accept his claim it was fraudulent, and thereby assert his “right” to remain in power. This unprecedented, disgraceful, profoundly dangerous campaign is a ploy right out of the tinpot dictator’s playbook, and something no modern president has ever tried, not even Nixon.
At the same time, Trump and the GOP are engaged in an aggressive campaign to monkeywrench the vote themselves. This effort includes the usual Republican slate of voter suppression and disenfranchisement, disinformation and propaganda, three card monte with polling places, voter intimidation, destruction of ballots, and possibly even actual tampering with the count. (Looking at you, Diebold.) And, course, the GOP and the Trump administration are happy to have the help of the Russian secret services as well. (Bill Barr said it was OK!)
This sort of sabotage is a longstanding Republican crusade, but in the past five years it has been taken to a new extreme….now further weaponized by Trump’s assertion that he ought not be bound by the results of the vote.
Trump may yet succeed in creating the kind of chaos necessary to cling to power — and in another bitter irony, if he does, it will be in large part because of the novel coronavirus pandemic, a pandemic that he criminally botched, resulting in the deaths of more Americans than our last five wars put together.
In the worst case scenario, he may even be able to skew the count to support his claim…..and if he does, we will be in the awkward position of having to say the precise thing that Trump is saying now: “The election was fixed!”
No matter how egregious and obvious these offenses, any complaints we make will leave us open to allegations of massive hypocrisy…..and unlike Republicans, Democrats and other decent Americans have the unfortunate Achilles’ heel of principle that makes them vulnerable to such charges in ways that shameless, single-celled Trump supporters lack. This is the evil genius of Trump’s demagoguery all around.
A fair question is: do we care? Ultimately no. If they cheat, we are going to call them out, loudly. But it would be helpful if we could do so in the most convincing possible way, one that neuters the inevitable howls from the right of the aisle.
Ball of Confusion
Unlike Trump, I will not say that the only way the other side can win is by cheating. It is possible, if unlikely based on the current numbers, that Trump could somehow win legitimately. I am painfully aware — painfully aware — that there are millions of Americans who eagerly support this troglodyte. People could be lying to the pollsters, the turnout could be unexpected, Jim Comey could issue another public statement, and so on.
But right now the numbers suggest that Biden is likely to win. If on the night of November 3rd and in the weeks that follow it appears that he has not, we will need to see highly credible, airtight proof to that end. (And not Larry Kudlow-style “airtightness” either. The real thing.) Because Trump has made the integrity of the election his signature issue, and because the Republican record of ratfucking is so shameful (more on that in a moment — remember the phrase “consent decree”), the onus will be on him and his party to prove that any victory they claim is bonafide.
Of course, Trump doesn’t need a definitive mathematical victory when mere confusion may be sufficient.
Here’s David Farris, writing in The Week:
It would unfold like this: The election result is closer than expected, and the ultimate winner remains unknown on election night, with millions of mail-in ballots to be counted in the decisive swing states. Trump declares victory when the (incomplete) election night count favors him, and then launches legal maneuvering to force states to stop counting mail-in ballots, papered over with some feeble pretext about the fraud the president himself keeps encouraging his own supporters to commit. Thanks to post-2010 gerrymandering, Republicans control both houses of the state legislature in nearly every contested state, and the president would presumably direct them to pass laws certifying Trump’s slate of electors, even if updated counts show Democratic candidate Joe Biden ahead. Et voila, a second Trump term.
Before you succumb to a stroke, Farris goes on to note the unlikelihood that Republicans will be able to carry out this scheme successfully. It would require them to (pick your metaphor) run the table, conjure a perfect storm, get super fucking lucky, etc etc. But we’ve seen it happen before.
Irrespective of the GOP’s odds of success, the real outrage is that are trying it at all — openly, and brazenly — and that so few Americans can even muster a shrug of the shoulders. That is how beaten down, numb, and cynical we have become. Which is just how the GOP likes it.
Farris goes on with his nightmare scenario:
Suppose that caravans of Trump supporters, adorned in Second Amendment accessories, converge on big-city polling places on Election Day. They have come, they say, to investigate reports on social media of voter fraud. Counterprotesters arrive, fistfights break out, shots are fired, and voters flee or cannot reach the polls.
Then suppose the president declares an emergency. Federal personnel in battle dress, staged nearby in advance, move in to restore law and order and secure the balloting. Amid ongoing clashes, they stay to monitor the canvass. They close the streets that lead to the polls. They take custody of uncounted ballots in order to preserve evidence of fraud.
There are variations of the nightmare. The venues of intervention could be post offices. The predicate could be a putative intelligence report on forged ballots sent from China.
This is speculation, of course. But none of these scenarios is far removed from things the president has already done or threatened to do….no one familiar with Attorney General Bill Barr’s view of presidential power should doubt that he can find authority for Trump.
The Red Mirage
Apparently, Trump’s fixation on mail-in balloting stems from his freakout over the Florida midterms, when a post-election “blue shift” nearly wiped out what first appeared to be Republican victories in the Senate and gubernatorial races. (In the Arizona Senate race, it did.) In that sense, it is equally well described as a “red mirage,” a term coined by Josh Mendelsohn, the CEO of the Democratic data-modeling firm Hawkfish.
Trump has spent the two years since attacking the idea, with his own re-election very much in mind. But it’s a deceptive strategy, especially when one considers that such attacks on might actually hurt Republican turnout too. But that’s beside the point. Gellman again:
The president is not actually trying to prevent mail-in balloting altogether, which he has no means to do. He is discrediting the practice and starving it of resources, signaling his supporters to vote in person, and preparing the ground for post–Election Night plans to contest the results. It is the strategy of a man who expects to be outvoted and means to hobble the count.
In terms of specific mechanics, one of the chief things Trump and GOP may try to do is delay the certification of the vote long enough for it to be thrown into the House of Representatives, where (through arcane rules that you can read about elsewhere, including Gellman’s article, and this one by Jeffrey Toobin), the Republicans hold a state-by-state majority that could award Trump a second term. Or he may be angling to get it decided by the Supreme Court and its conservative majority — a third of whom will likely be Trump appointees — and he is betting will do likewise.
(Another good analysis of this scheme is to be found in Isaac Chotiner’s New Yorker interview with UC Irvine law professor Richard Hasen, author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.)
But Farris notes that “Mail balloting procedures are fully legal in all states that use them, so asking Republican legislatures either to stop the counting of ballots cast under agreed-upon procedures, or to certify a totally different winner than the people chose, is nothing short of extra-judicial election theft.”
It should not ultimately be a legal question. And in a healthy democracy, these efforts would not come before the courts at all nor should they be casually floated by a sitting president as the plan. Any attempt to do so is no different than having Biden and his vice presidential pick, Kamala Harris, abducted and dropped out of a helicopter. A slightly better ending for the two of them, I suppose, but the functional outcome for the rest of us would be identical: an election stolen brazenly by unapologetic authoritarians who would no longer have any check whatsoever on their rule.
In his Atlantic piece, Gellman notes that the 2000 electoral debacle did not really end with a Supreme Court decision, as conventional wisdom and memory holds: it ended because Al Gore publicly accepted that decision on December 13.
All the Court decided was that the recount in Florida should stop. Gore could have continued the legal fight from other angles, and many felt he should have. But that was a different time, when the stakes did not seem so high…..even though a presidency was at stake, and even though they turned out to be very high indeed. (Which way to Iraq?) But Gore and many others felt the respect for the peaceful transfer of power — a cornerstone of American democracy, as important as any other aspect you care to name — were more important.
I’m sure Donald Trump agrees.
As Gellman writes, “We have no precedent or procedure to end this election if Biden seems to carry the Electoral College but Trump refuses to concede. We will have to invent one.”
Another thing that has flown mostly under the radar is the consent decree that the GOP has been under four decades, limiting its ability to intimidate voters on Election Day. Gellman again:
The order had its origins in the New Jersey gubernatorial election of 1981. According to the district court’s opinion in Democratic National Committee v. Republican National Committee, the RNC allegedly tried to intimidate voters by hiring off-duty law-enforcement officers as members of a “National Ballot Security Task Force,” some of them armed and carrying two-way radios. According to the plaintiffs, they stopped and questioned voters in minority neighborhoods, blocked voters from entering the polls, forcibly restrained poll workers, challenged people’s eligibility to vote, warned of criminal charges for casting an illegal ballot, and generally did their best to frighten voters away from the polls. The power of these methods relied on well-founded fears among people of color about contact with police.
The 2020 presidential election will be the first in 40 years to take place without a federal judge requiring the Republican National Committee to seek approval in advance for any ‘ballot security’ operations at the polls.
This year, with a judge no longer watching, the Republicans are recruiting 50,000 volunteers in 15 contested states to monitor polling places and challenge voters they deem suspicious-looking.
In late 2019, a senior lieutenant in the Trump reelection campaign named Justin Clark gave a private talk to an audience of Republican lawyers in Wisconsin that was surreptitiously recorded and later leaked. Clark spoke about the importance of “EDO” — Election Day operations — gleeful that “first and foremost is the consent decree’s gone,” which he went on to describe as a “huge, huge, huge, huge deal.”
He has since been made deputy campaign manager. Guess they liked what he was doing.
Gellman’s piece caused a collective panic in the left. (As The Atlantic knew it would. Heather Cox Richardson reports that it was slated for the November issue, but rushed into print early, which I consider a public service.) Richardson also reports that Trump’s own reaction to it did not soothe any progressive fears:
Amidst the flurry of concern over The Atlantic piece, a reporter this afternoon asked Trump if he would commit to a peaceful transfer of power if he loses the election. “Well, we’re going to have to see what happens,” Trump said. “You know that I’ve been complaining very strongly about the ballots and the ballots are a disaster.” He went on to say: “Get rid of the ballots and you’ll have a very — we’ll have a very peaceful — there won’t be a transfer frankly, there’ll be a continuation.”
In response to this shocking rejection of the basic principles of our government, Adam Schiff (D-CA), chair of the House Intelligence Committee, tweeted, “This is how democracy dies.” He said: “This is a moment that I would say to any Republican of good conscience working in the administration, it is time for you to resign.” But only one Republican, Mitt Romney (R-UT), condemned Trump’s comments as “both unthinkable and unacceptable.”
That’s the same Mitt Romney who last February was the sole Republican vote to convict Trump of high crimes and misdemeanors, yet now is down with letting that same unfit, criminal head of state put another justice on the Supreme Court, even in defiance of his own party’s self-established precedent.
Mitt sure runs hot and cold when it comes to fascism.
Eight Steps to Freedom
If ever a Western democracy needed to be put under new management, it’s this one. The problem is, the very people we need to oust from power have control of the levers governing — or undermining — a fair election.
So how do we stop Trump from pulling off this bank robbery? In the words of Tevye in “Fiddler on the Roof,” I’ll tell you:
I don’t know.
Per above, the challenge for us is that the gang trying to carry out this caper is also in charge of the bank itself, the cops, the DA, and the judge. But we are not powerless.
At the institutional level, the DNC is already girding for battle with an army of lawyers, already mounting legal challenges, already pushing back against the administration and RNC’s efforts. Presumably there will be no repeat of the Dems’ feather-duster-to-a-flamethrower-fight approach of Florida 2000.
For those of us in the general public, our weapons are few, but they are pretty simple and easy to implement:
ONE: Sound the motherfucking alarm. The more we publicize what Trump is up to — and true to form, he’s not really trying to hide it — the harder it will be for him to pull it off. Obviously, this process has already begun, but we need that awareness — and vigilance — to trickle down from The Atlantic and The New Yorker to Kardashian-like ubiquity in every household in America.
TWO: Let the GOP know that we’re on to them and that there will be hell to pay if they go through with it. I’m not talking about an appeal to honor or principle — don’t make me laugh — only self-serving pragmatism. Behind closed doors, most sentient Republicans know (or at least worry) that Trump is toast, or will be sooner or later. The Ben Sasses and Tim Scotts and others who imagine that they will have a political future ought to be reminded over and over that we are not going to forget (let alone forgive) their shameful subservience to this cretin….and complicity in a heist like this will ensure their permanent pariah status, outside of the minority community of MAGA Nation.
Do we imagine they’re scared by that? Maybe not. But they should be….unless they’re banking on pulling this off and establishing a permanent one-party rule. That’s kind of the whole problem here.
THREE: Get out and vote. Do it in person if it’s safe, and early if you can. Landslide-like numbers for Joe on Election Night will be the best bulwark against Trump’s attempt to gaslight us.
If you need to vote by mail, get your ballot now and send it in, in the safest way possible. In some places you can drop it off in person, if you’re worried about the mail.
FOUR: Did I mention that getting out and voting? Do it.
FIVE: Go into Election Night knowing that we are unlikely to have a winner that evening, but fully expecting that Donald Trump will declare himself the winner no matter what.
SIX: Be prepared to disregard Trump’s claim unless there is overwhelming proof. (Which seems unlikely.) Push back against the falsehoods and the lies he will sling at us.
SEVEN: Brace for a weeks- and even months-long legal fight. (Groups like Protect the Results are already organizing.) Per above, the other side will try to curtail the vote count, and resort to complex constitutional maneuvers, and generally screw with the process in every possible way, legal and illegal, using every possible means. Don’t let them.
And when they try….
EIGHT: Be ready to get out in the streets. Right away. Don’t wait for Trump, Barr, McConnell, and the rest to succeed in their legal and extralegal shenanigans. We need to make them feel the pressure right off the bat, and in ways that have never been seen in these United States. Last summer’s BLM protests in the wake of the murder of George Floyd provide a model.
It is this last step above all, save #3 above (did I mention we all need to vote like our country depends on it?) that may prove most important of all.
Velvet Divorce Court
Those with the most to lose from a reactionary Trump Court have the least access to the levers of power that could slow this fast-moving process. But they can still attempt to interrupt it with popular protest and resistance. Even if popular resistance is not successful in stopping Trump’s nominee, it will be crucial in the long, ongoing struggle to expand the rights of the people of the United States….
(O)rdinary people are not powerless to challenge the political and economic élite who have such disproportionate authority over our lives. But our power is often located outside of the institutions of tradition and influence. It is through acts of solidarity and struggle that we have been able to secure our rights and liberties in the United States, and, from the shape of things to come, that is how those rights and liberties will have to be defended.
David Farris gets the final word:
It is one thing if Trump wins the Electoral College while once again losing the popular vote, a nightmare outcome that would further erode the legitimacy of democracy and would likely lead to some half-serious talk about secession. But if Republicans halt the counting of perfectly valid ballots and have their gerrymandered state legislatures try to illegally pick GOP electors when it is obvious that Biden has won, and if congressional Republicans go along with this despicable madness, it will break this rapidly unraveling country in two. There will be massive protests in every city. Those half-serious calls for secession will instead be actual bills passed by legislatures in blue states from coast to coast. There will be general strikes and tax strikes and debt strikes. It will make our long summer of discontent look like Sunday Funday. And as much as many of us might fantasize about a velvet divorce, the reality of this heavily armed country tearing itself apart after nearly a year of isolation and sickness and fear would be violent and disastrous.
I’m sure he’s right. But we better get ready, because it’s coming whether we like it or not.
Photo: Eduardo Munoz Alvarez — AFP/Getty Images