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Rival slates of electors! The “red mirage!” The Supreme Court decides the election!
It’s not yet Halloween, but we’re already being haunted. After President Trump used this week’s debate to amplify his baseless assertions of widespread ballot fraud, and refused last week to commit to a peaceful transfer of power, election anxiety went into hyperdrive, with prognosticators spinning out a series of scary scenarios.
The freakout makes a strange kind of sense: Since so much of 2020 has been upside down, why should we get a normal election?
Certainly, there’s plenty to worry about. The coronavirus pandemic is stressing an already creaky voting system, prompting fears of a shortage of poll workers. An influx of mail-in ballots could overwhelm state administrators. Operational changes at the Postal Service under Mr. Trump’s new postmaster general have coincided with mail delays.
Meanwhile, Mr. Trump’s disinformation campaign about the integrity of the American electoral system, paired with foreign efforts, could spread confusion about voting. And his call for his supporters to “go into the polls” and “watch very carefully” has raised concerns about voter intimidation.
All of those factors create a climate of uncertainty, increasing the chances that we won’t know the winner on election night. But how realistic are the true doomsday scenarios, predictions that the country could descend into a constitutional crisis or even violent conflict?
Not all that likely, say election law experts, but the dangers to democracy are high if a crisis does occur.
“The chances that it’s going to be that close in a state that matters to the Electoral College is quite small, but if it is that close, then I think we’re in great danger,” said Rick Hansen, an election law professor at the University of California, Irvine.
He added, “It’s reasonable to worry about low-probability, high-loss events.”
Historically, it has taken a perfect storm of political conditions to throw an election into a blizzard of litigation. The vote count must be sufficiently close in a state that could change the results of the entire race, as in 2000, when the Florida recount left George W. Bush with a 537-vote margin over Al Gore.
A close outcome like that is certainly possible in 2020. But so is a substantial victory by Joe Biden.
The former vice president’s lead in the polls has been remarkably stable. Right now, the forecasters at FiveThirtyEight and The Economist think he’s most likely to win around 335 or 337 electoral votes, well above the 270 needed.
Yes, I know … BUT WHAT ABOUT 2016?!
Four years ago, our fundamental assumptions about the electorate were wrong, warping many polls. That could happen again this year, and there’s no question that Mr. Trump could still win. But my colleague Nate Cohn at The Upshot says that as of now, Mr. Biden could withstand a polling misfire like the one in 2016 and still come out on top.
Under normal circumstances, a big Biden victory would make litigation by the Trump campaign largely a waste of time and party resources.
But these are anything but normal times. And the wild card in this race is, of course, the president, who has shown an unusual eagerness to undercut the integrity of the election.
Ned Foley, an election law expert at Ohio State, compared the traditional norm of holding elections and counting votes to gravity, a force strong enough that no candidate should be able to escape it.
But, he said, “if polarization gets energized enough, it could get enough momentum to have escape velocity.” Mr. Foley should know — he’s been involved in bipartisan efforts to game out various nightmare scenarios. “Once you’re in that hyper-contestation mode and you reach exit velocity, all bets are off.”
So if the president can convince enough of his base that the election is “rigged,” with his frequent — and false — warnings of extensive fraudulent voting, he could set a narrative of a tainted race before the votes are tallied.
For the election to devolve into total chaos, state legislatures and national Republican leaders would have to go along with his refusal to concede — no matter the costs to our democracy.
So far, Republicans have gently pushed back against Trump, saying that the Constitution ensures that whoever loses must cede the presidency — though most have declined to say what they would do if Mr. Trump won’t leave office.
They also have another factor to consider: A decision to undermine the election could throw their own races into dispute.
“Republicans would be taking a huge risk because they’d be calling into question the election that got themselves elected,” Mr. Hansen said. “And they’d be doing something that would be constitutionally questionable and that would be anti-democratic in a profound way.”
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… Seriously
“The trouble in Eagle started in June, when Jefferson Street became ‘Trump Street.’”
A tale of fierce political divisions from a small town in Alaska. (h/t Reid Epstein.)
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