Sunday, September 27, 2020

Donald Trump versus Democracy on November 3

            President Trump’s repeated refusal to abide by the results of the presidential election puts American democracy at risk to an extent unseen since the time of the Great Depression in the 1930s.

Republican senators who have enabled the worst of Trump’s excesses in the White House have tried to dispel doubts about a peaceful transition of power after Trump’s looming defeat. Those reassurances are empty of content, however, in the face of Trump’s ability to marshal federal resources and his political base to try to thwart the will of the American voters.

            Trump’s bag of tricks to neutralize a second popular-vote loss, possibly much larger than his 2.8 million vote deficit to Hillary Clinton in 2016, includes vote suppression, voter intimidation, and vote-counting litigation and confusion after Election Day. He set the stage for challenging election results at the Republican National Convention in August by declaring that the only way he could lose was to “a rigged election.”

            His Democratic opponent, former vice president Joe Biden, had already warned as early as the spring that Trump would try to steal the election. Biden’s Democratic primary opponent, Vermont’s blunt-spoken independent senator Bernie Sanders, stepped up the rhetorical heat on the issue in a speech last week [Sept. 24] at George Washington University.

            “This election is not about Joe Biden versus Donald Trump,” Sanders declared. “This is about Donald Trump versus democracy.”

            Level-headed election experts and historians are warning of a constitutional crisis that can spread through courtrooms in several states and even into the streets. “We could well see a protracted postelection struggle in the courts and the streets if the results are close,” says Richard L. Hasen, the nation’s pre-eminent election law expert and a professor at the University of California-Irvine Irvine School of Law.

Trump’s campaign organization is actively recruiting “an army” of supporters to help police potential voter fraud at polling place. Virginians in suburban Washington, D.C., got a taste of what is to come when early voters waiting in line for hours in Fairfax County were met by a throng of Trump supporters carrying Trump-Pence placards in seeming defiance of rules against electioneering at polling places.

Hasen has been warning of the dangers to electoral democracy all year, ever since he published his book Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press) in February. Hasen identified four factors threatening the integrity of the 2020 election: voter suppression; incompetence in election administration; misinformation campaigns; and inflammatory rhetoric undermining faith in the integrity of elections.

A new threat to the election has now been reported in a disturbingly well-documented article by Barton Gellman, a staff writer with The Atlantic, published online last week [Sept. 23] under the headline “The Election That Could Break America.” Gellman envisions a scenario that leaves the results of the election in doubt not only for the days of late ballot-counting in November but even into an extended interregnum that ends in Congress or at the Supreme Court, with two or perhaps three Trump-appointed justices.

Republican-controlled legislatures in battleground states might designate Trump-pledged electors whatever the results of the popular vote in the state. States have until December 8, thirty-five days after the election to make those designations. In his story, Gellman reported that Republican legislators in Pennsylvania are already discussing this scenario. As of late September, Biden leads Trump by 5 percent or more in pre-election polls in the Keystone State.

Gellman went on to note that Republicans control both legislative chambers in six of the most closely contested battleground states: Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin. Four of those states have Democratic governors — all but Arizona and Florida — who might be in a position to thwart the GOP legislators’ effort by certifying electors in line with the popular vote.

Trump would remain as president throughout, up to January 20, with the power to direct his lapdog attorney general William Barr to send Justice Department attorneys into courtrooms to buttress challenges to vote counts. Vice President Mike Pence would be the presiding officer in a Republican-majority Senate with the power to rule on electoral vote challenges.

Gellman warns that whatever happens, Trump will not concede defeat, just as losing presidential candidates have done gracefully and respectfully ever since William Jennings Bryan acknowledged his loss in 1896 to William McKinley. Gellman, who worked in Al Gore’s 1988 presidential campaign, also recalls that Gore bowed to the Supreme Court’s decision in Bush v. Gore even with some avenues for legal challenges still open to him.

“Donald Trump may win or lose, but he will never concede,” Gellman writes. “Not under any circumstance. Not during the Interregnum 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 MAGA-wearing supporters will believe him, just as they now believe his contrafactual warnings that mail ballots inevitably entail widespread voter fraud. Trump continues to call mail ballots a “scam” even as military service members use the time-honored procedure to exercise their rights. Republican campaign aides have been out in force already criticizing “activist judges” who extend deadlines for mail balloting in deference to what is expected to be an unprecedented crush of by-mail voting.

Polls indicate that Democrats are more likely to vote by mail than Republicans; thus, any  challenges to late-arriving mail ballots are likely to disqualify more Democratic votes than Republican votes. In battleground states, those challenges could spell the difference between a Biden victory or a Trump victory: imagine a Florida-like recount that turns not on hanging chads but on voting-by-mail postmarks.

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