Our Most Vulnerable Election

In October 1884, as a particularly ugly presidential race neared its end, Walt Whitman decided instead of voting to write a poem. “Election Day, November, 1884” argued that the most remarkable feature of the United States was not its stunning natural wonders—not the Mississippi River, nor the limitless prairies, “nor you, Yosemite” (however our current president wants to pronounce it). No, Whitman declared, the “powerfulest scene and show” was “America’s choosing day.” And not because of the men who were selected to govern: “The heart of it not in the chosen—the act itself the main, the quadriennial choosing.” Elections matter because they are a central way in which we constitute ourselves as a nation. In this centennial of the Nineteenth Amendment, which gave women the right to vote (at least if they were white, since effective enfranchisement didn’t come to Black citizens in the South until the Voting Rights Act of 1965), voting remains a powerful expression of who counts as a full member of the political community.

When Whitman wrote, the nation was only eight years past the debacle of 1876, during which the winner of the presidency—Rutherford B. Hayes, a Republican—was not determined until two days before the inauguration. Vote suppression, fraud, dishonest counting of the ballots, and the vagaries of state law had led to Florida, Louisiana, Oregon, and South Carolina each sending more than one set of electoral votes to Congress. The Twelfth Amendment, which lays out the process for declaring the winner of a presidential election, proved inadequate to the task of resolving the dispute over which sets to count, not least because the amendment’s language was susceptible to multiple readings, and Democrats controlled the House while Republicans controlled the Senate.

It took a special, jury-rigged electoral commission, hardball behind-the-scenes bargaining, and ultimately a concession by Democratic candidate Samuel Tilden to reach closure. As Lawrence Douglas, a professor of law, jurisprudence, and social thought at Amherst College, observes in Will He Go?, that was only the beginning of our woes. The price of the deal that gave the Republicans the presidency was their agreement to end Reconstruction—a decision that haunts us to this day. In Douglas’s words, “Catastrophe was avoided by disaster.”

The United States has had fifty-eight presidential elections since George Washington won a unanimous electoral vote in 1788–1789. Few of them have been as obviously consequential as the election of 2020. That would be true even if it were only about the issues: how America will handle Covid-19, racial inequality, immigration, climate change, foreign relations, economic policy, and judicial appointments depends on whom we choose to lead us next. On each of these questions, there are sharp differences between Joe Biden and Donald Trump. But although we have had many critical elections, none of them since the end of Reconstruction has occurred under anything like the cloud hanging over this quadriennial choosing.

The pandemic has made it harder to recruit poll workers and to keep polling places safe. Millions more Americans will attempt to vote by mail than have ever done so before, and in some states they will face difficulties in applying to get their ballots. So there is genuine concern whether every eligible voter who wants to cast a ballot will succeed in doing so. US intelligence agencies have pointed to renewed Russian efforts to influence the election’s outcome and undermine public confidence in the democratic process. In normal election years, the election legitimates the winner; this time around, the question may well be whether the election itself was legitimate.

Three of the last seven incumbents—Gerald Ford, Jimmy Carter, and George H.W. Bush—were defeated when they ran for a second term. And yet it is inconceivable that a respected scholar like Douglas could have written a book with a title like Will He Go? about any of them. In each case, the answer to that question was obvious: once the results were announced, all three men swiftly gave gracious public concession speeches recognizing that the people had spoken. Each praised what Bush, in his remarks, called “the majesty of the democratic system.” Each pledged to cooperate with his successor during the transition period. And after they left office on the date set by section 1 of the Twentieth Amendment, all of them avoided public comment on the next president’s performance. That is because, as Douglas explains, “our political leaders have accepted—and internalized—the norms of the democratic process.”

Not Donald Trump. He has flouted nearly every norm of American political life: using the White House for campaign events, threatening to jail his opponent, calling members of Congress “treasonous” for not applauding his speeches, inviting foreign intervention in our electoral process, undermining the independence of the Justice Department’s prosecutorial decisions, using the presidency to promote his business interests,^* praising autocrats while denigrating our allies. He has spent his entire presidency simultaneously attacking and defending the legitimacy of the 2016 election—attacking it on the grounds that his failure to win a majority of the popular vote was due to extensive vote fraud, and defending it from the charge (most recently supported in excruciating detail by the bipartisan Senate Select Committee on Intelligence) that his campaign was entwined with Russian efforts to influence the outcome. And he is firmly launched on a campaign to undermine the legitimacy of the 2020 election as well. Far from wanting all citizens to participate, Trump has admitted that the more people who vote, the less likely he is to win.

One answer to Douglas’s question might be that, yes, Trump surely will go—no later than January 20, 2025, when a second term would end if he won reelection. (The Twenty-Second Amendment declares that “no person shall be elected to the office of the President more than twice.”) But Trump repeatedly flirts with the idea that he should be entitled to a third term. This summer he suggested that after he wins this election he will “go for another four years because they spied on my campaign. We should get a redo of four years.” On the first night of the Republican National Convention, he responded to the crowd’s chant of “four more years” by saying, “If you really want to drive them crazy, you say, ‘Twelve more years.’” In 2018, when Chinese president Xi Jinping had the two-term limit removed from the Chinese Constitution, Trump remarked that it was “great” that Xi could now be president for life, and mused that “maybe we’ll have to give that a shot someday.”

Shrugging off these repeated remarks as jokes misses the point: as Sigmund Freud long ago observed, what an individual chooses to joke about can reveal a good deal about his inner life. Trump’s “impulses and sympathies are clearly authoritarian,” Douglas writes, and he “seeks power simply to keep himself in the public eye; or to put it differently, the only power Trump really craves is the power to command attention.” Elections are for him nothing more than a way to serve his own interests.

The central argument of Will He Go? is that Trump’s pathologies intersect with some distinctive features of the US electoral system in a particularly dangerous way. So before we can think about the scenarios Douglas sketches to suggest just how he might not go, we need to understand the architecture of our presidential election system.

To select the nation’s chief executive, individual citizens cast a ballot for the candidate they prefer, but those votes actually operate to select members of an Electoral College. These “electors” are apportioned among the states, with the number for each state being its senators (always two) plus its representatives (depending on its population, with a minimum of one; California currently has the most, at fifty-three). (Under the Twenty-Third Amendment, the District of Columbia also gets three electors.) The 538 electors then cast ballots for president and vice-president.

If a candidate receives an undisputed majority of the Electoral College votes, he or she is the winner. With the exception of the elections of 1800, 1824, and 1876, this is how our presidents and vice-presidents have been chosen (with an asterisk for Vice Presidents Ford and Rockefeller, who were chosen through the nomination and confirmation process of section 2 of the Twenty-Fifth Amendment—Ford to fill the seat left vacant when Vice President Spiro Agnew resigned in disgrace, and Rockefeller to replace Ford when Ford became president after Richard Nixon resigned facing impeachment).

But if no candidate receives a majority of the Electoral College votes, then the election for president is thrown into the newly elected Congress—which under the Constitution takes office on January 3 and, under the Electoral Count Act, convenes to count the electoral votes on January 6. The House of Representatives selects the president from among the top three vote-getters for president in the Electoral College. Each of the fifty states, whatever its population, gets one vote, and, under the Twelfth Amendment, “a majority of all the states shall be necessary to a choice.” The Senate selects between the two candidates for vice-president who received the most electoral votes.

If those processes fail and we get neither a president nor a vice-president (who then serves as president), we turn to the Presidential Succession Act of 1947, passed pursuant to Congress’s authority under section 2 of the Twentieth Amendment. The Speaker of the House of Representatives, if he or she is eligible to be president (which requires being at least thirty-five years old and a “natural-born Citizen” who has lived in the United States for fourteen years), can resign from Congress and “act as President.” If the speaker is ineligible or unwilling, the act then turns to the president pro tem of the Senate, and one after another to the members of the cabinet, in order of the seniority of their departments.

With me still? Now come the problems. They start, as Douglas points out, with a challenge to democratic legitimacy that inheres in the very structure of the Constitution: the possibility that a candidate will lose the popular vote but nevertheless obtain a majority in the Electoral College. Social scientists have estimated that under current conditions, there is a one-in-three chance that a popular-vote loser will nonetheless win the electoral vote. And for demographic reasons, that chance skews more heavily in favor of Republicans than Democrats. So far in the 2000s, this mismatch has happened in two of the five elections: in 2000, Al Gore got roughly 500,000 more votes than George W. Bush, but Bush garnered 271 electoral votes to Gore’s 266 (with one D.C. elector abstaining in protest); in 2016, Hillary Clinton received 2.87 million more votes than Trump but lost in the Electoral College 304–227 (seven electors—two pledged to Trump and five to Clinton—voted for other candidates). Particularly in a nation as politically polarized as contemporary America, it is a real question how many such elections the people will accept before they demand fundamental change to the way a president is selected.

But of course there can be disputes over which candidate is entitled to a state’s electoral votes in the first place. In essence, we have fifty-one different Electoral College elections occurring simultaneously across the country, each of them with its own set of rules about who can vote (for example, what sorts of identity documents are required) and how (in person, by mail, on a single election day or over a weeks-long period). Many of those elections are not likely to be close: it would take a landslide on the order of Johnson-Goldwater in 1964 to give Biden a shot at winning Kansas or one like Reagan-Mondale in 1984 for Trump to win Connecticut. But there are a bunch of swing states in which statewide margins can be infinitesimal. Trump won in 2016 because he got 0.23 percent more votes than Clinton in Michigan, 0.72 percent more in Pennsylvania, and 0.77 percent more in Wisconsin. George W. Bush won in 2000 because he got 537 more votes than Gore in Florida (and one more, from the Supreme Court, in Washington, D.C.).

Will He Go? is focused “less [on] the possibility that Trump will steal victory than that he will reject defeat,” perhaps because Douglas is particularly interested in describing the design defects in the architecture of the Twelfth Amendment and the Electoral Count Act. So the second half of Douglas’s book offers three scenarios designed to show the kinds of electoral meltdowns that may occur this fall. Each of his scenarios begins on or after election day and involves electoral uncertainty. But we should not ignore the possibility that Douglas skips past: that Trump will create a crisis of democratic legitimacy by manipulating the election system to prevent his defeat.

Here are three possibilities Douglas does not discuss, each of which strikes me as at least as plausible as the ones he does. Nor should we be focused only on whether Donald Trump will go. None of my scenarios—or, indeed, Douglas’s—depends entirely on the “psychopathology” of Donald Trump. Each of them could occur in any future election, given the stark levels of political polarization in the contemporary United States. By pursuing only the question “Will he go?,” Douglas may have downplayed defects in the American election system that will persist even after Trump is gone.

First, Trump could produce an “October surprise” that dispirits Democratic voters or swings undecided voters away from Biden. Douglas recognizes that “in William Barr, Trump has found an attorney general willing to act as the president’s private advocate,” but he is reassured that Trump’s ability to use the Department of Justice for political ends is limited because career DOJ lawyers would resist helping him. I’m not as sanguine. The career lawyers cannot prevent Barr from announcing, on the eve of the election, some version of the results of the inquiry he commissioned into the US government’s investigation of the Trump campaign’s connections with Russia. Given the disingenuous spin Barr put on the Mueller Report, what will stop him from insinuating that Joe Biden was somehow “involved” in “spying” on Trump’s 2016 campaign?

And what will stop Barr and his allies from indulging Trump’s desire (expressed in the notorious “perfect” phone call with Ukraine leader Volodymyr Zelensky) and indicting Hunter Biden for some alleged impropriety? Consider the effects on the last election of James Comey’s October 28, 2016, letter to Congress seemingly reviving the investigation into Hillary Clinton’s e-mails; it dominated several news cycles and halved her lead in the polls.

Second, Trump and his allies in the Republican Party can challenge every effort to ease restrictions on voting by mail or other alternatives to voting in person on election day. In states where both poll workers and prospective voters fear the effects of Covid-19—effects that are disproportionately serious for Black and Latino individuals, who are often crucial Democratic voters—this could drive down turnout. Consider Texas, where Republican state officials and a Republican-dominated state supreme court narrowly construed the state-law provision allowing a citizen to vote by mail if he has a “physical condition” that creates a “likelihood” of “injuring the voter’s health” from voting in person. A lack of immunity to the coronavirus, they decided, was not such a condition, even though the voter might be sheltering in place and trying to maintain social distance in order to avoid infecting himself or others. (I represent Texas voters in a federal constitutional challenge to Texas’s decision to give only voters over the age of sixty-five an automatic right to vote by mail; we claim this violates the Twenty-Sixth Amendment’s command that the right of adult citizens to vote shall not be “abridged” on account of a citizen’s “age.”)

Third, as in 1876 and 2000, there’s always the possibility of controversy in Florida. In 2018 Florida voters (including a significant share of Republican voters) approved an initiative—Amendment 4—that would automatically restore criminal offenders’ right to vote (unless they had been convicted of murder or a felony sexual offense) “upon completion of all terms of sentence including parole or probation.” Roughly 1.4 million individuals could potentially benefit from the amendment. And in a state that’s evenly divided in statewide races, if even a fraction of those former offenders voted, they could determine the outcome.

But the Republican-dominated state legislature and the Republican-dominated state supreme court have defined “completion” of the terms of a sentence to include payment of all financial obligations ordered by the sentencing document. Often these obligations include court costs and fees of hundreds of dollars. Although the Twenty-Fourth Amendment prohibits denying citizens the right to vote for failure to pay “any tax”—and court costs that fund government operations are a form of taxation—the inability to pay these fees will prevent many returning citizens from registering and casting a ballot.

What’s worse, many former offenders have no way to find out how much they owe (and face criminal prosecution if they register and vote without paying the full amount). A federal district judge found, after a lengthy trial, that Florida’s system for determining the amounts owed was so plagued by intractable administrative problems that it violated the US Constitution. The judge pointed to testimony regarding the efforts of “a professor specializing in this field with a team of doctoral candidates from a major research university” who unsuccessfully spent weeks trying to obtain this information for “153 randomly selected felons.” And staff members with “combined experience of over 100 years” in one county clerk’s office spent some fifteen hours “bulldog[ing]” the circumstances of a single aspiring voter to figure out the amount owed.

The court emphasized that, based on the state’s own estimates, the projected completion date for reviewing the obligations of only the 85,000 former offenders who had currently pending registration applications would be “early in 2026. With a flood of additional registrations expected in this presidential election year, the anticipated completion date might well be pushed into the 2030s.” But a federal court of appeals—on which five of the ten judges hearing the case are Trump appointees—issued a one-sentence order staying the district court’s injunction that left the pay-before-you-can-vote provision in place while the case works its way through the system. And the US Supreme Court left that stay in place, again in a one-sentence order, with Justices Ginsburg, Sotomayor, and Kagan dissenting. So if Trump wins Florida’s electoral votes and those votes are essential to his winning the election, his victory will be tainted.

Now consider the three “catastrophe” scenarios Douglas presents. The first is that a pivotal number of electors try to cast their votes for a candidate who outright failed to carry their state’s popular vote. Thirty-two states and the District of Columbia have laws insisting that a party-picked slate of electors cast their electoral votes for their party’s candidate. But only fifteen states have a system for backing up that pledge requirement with an enforceable sanction (either removing or punishing a so-called faithless elector). Earlier this year, the Supreme Court unanimously upheld the constitutionality of those enforcement devices. But among the jurisdictions without one is the swing state of Pennsylvania. So what happens, Douglas asks, if Trump once again wins a plurality of the vote there, but this time two of the Republican electors decide they cannot support him and instead vote for Mitt Romney, leaving Trump with only 269 electoral votes nationwide, one short of the Twelfth Amendment’s required majority?

Douglas posits that the Republican-controlled state legislature would then pass a law canceling the ballots of the two defecting electors and replacing those electors with Trump supporters. The legislature would then send a certificate of election to Congress announcing that Trump has received twenty electoral votes. But the Democratic governor of Pennsylvania might also send an election certificate, this one certifying eighteen votes for Trump and two for Romney. What is Congress to do?

The section of the Electoral Count Act that governs counting the votes is, as Douglas puts it, a “semantic salad.” It directs Congress to count the votes that are “regularly given.” And it provides that if at least one senator and one representative file a written objection to accepting a state’s certificate, the two houses are to return to their own chambers and deliberate before continuing the overall count. But the phrase “regularly given” is nowhere defined. Is a vote regularly given if it is the product of a law enacted after election day to change the outcome? And if the House and Senate disagree about whether a vote was regularly given, and there are two slates of electors, the act declares “then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” So does that mean the governor-certified slate is the one that should count?

In a close election, the upshot of counting the gubernatorial slate (with its eighteen votes for Trump and two for Romney) may be that no candidate receives a national majority of the electoral votes. This will throw the issue into the Twelfth Amendment’s backup mechanism. But that mechanism also fails to account for contingency. What happens if twenty-five of the House delegations are controlled by Democrats and twenty-five by Republicans? If twenty-five delegations cast their vote for Biden and twenty-five cast their vote for Trump, the House will be deadlocked, and unable to pick a president. And what happens if the new Senate in 2021 consists of fifty Democrats and fifty Republicans? It too will deadlock and be unable to pick a vice-president. Assuming that the Democrats hold the House, the Presidential Succession Act authorizes the Speaker of the House (today, Nancy Pelosi, but the new House will select the speaker who will be in office on January 6) to act as president.

Will Trump go under those circumstances? Douglas fears not. Instead, Douglas suggests he may stage his own, competing inauguration and rely on William Barr to deliver a legal opinion stating that he remains the commander-in-chief. After Will He Go? was published, Barr was asked at a House Judiciary Committee hearing, “What will you do if Donald Trump loses the election on November 3 but refuses to leave office on January 20?” Barr responded, “Well, if the results are clear, I would leave office.” That, as Douglas anticipates, is a mighty big if. What would Barr do if the results are not clear? In a 2019 speech at Notre Dame, Barr described a world where he is fighting for America’s survival against the evil forces of “secularists, and their allies among the ‘progressives.’” Such views may well color his opinion of the clarity of election results in which those forces claim victory.

Douglas’s second “catastrophe” scenario—the “hack attack”—raises the question of clarity in a different way. Suppose that on election day the electric power grid in Detroit suddenly crashes and, as a result, 350,000 fewer votes are cast in Detroit than were cast in 2016. Suppose that in Michigan overall Trump again receives around 10,000 more votes than his Democratic opponent. Isn’t it clear, given that Detroit is an overwhelmingly Democratic city that broke two to one for the Democrats the last time around, that Biden would have won Michigan without the shutdown of Detroit’s polling places? Although Douglas’s scenario involves a deliberate attack on the electoral infrastructure, a natural disaster or human error could have the same effect.

But as Douglas points out, however clear that reality may be, it is quite unclear that there is anything to be done about it: “No revote has ever been staged in a presidential contest.” Suppose a federal court were to order one and, despite the current Supreme Court’s fairly consistent rejection of judicial attempts to adapt election laws to the Covid-19 crisis, the justices were to allow the revote to proceed. Trump surely would not accept the results of a revote in which he gets fewer votes than Biden. And if the Supreme Court were to hold that, under the Electoral Count Act, Congress must accept an electoral certificate sent by Democratic governor Gretchen Whitmer reflecting the results of that revote, rather than a competing certificate in Trump’s favor submitted by the Republican-controlled Michigan legislature, Trump is unlikely to accept that result either.

Douglas’s third “catastrophe” is the “Big Blue Shift.” Unlike the other two scenarios, which are possible but unlikely, this one is almost certain to happen. But unlike the other two, the blue shift is not a catastrophe (except, perhaps, from Trump’s point of view). Instead, it’s just a reflection of contemporary voting patterns.

In recent years, a greater and greater percentage of Americans have cast their ballots without going to the polls on election day. In some places, they cast their ballots early, usually at the registrar’s office or at a voting supercenter. But the largest change has been the explosion in voting by mail. Originally called “absentee voting” because it was designed to enable voters who would be away from the jurisdiction on election day—its origins go back to the Civil War, when Republican states in the North used it to keep Union troops in the field without sacrificing their electoral support—it has now been extended to a much larger cohort of individuals. In a half-dozen states, virtually all voting is conducted at least partially by mail: the state sends ballots to all registered voters, who can return those ballots either by mail or by dropping them off in designated locations. In most other states, no-excuse vote by mail is available to any voter who applies to vote that way. In a handful of states, voters are permitted to vote by mail only if they qualify under a specified excuse.

Covid-19 has accelerated the trend toward voting by mail. In the April 2020 primary in Wisconsin, absentee voting was up by more than 650 percent compared to ordinary elections. In Pennsylvania’s June primary, about 50 percent of voters voted absentee, compared to 5 to 7 percent normally.

On top of the trend toward voting by mail, the federal Help America Vote Act, passed after the 2000 election debacle, requires states to provide a “provisional” ballot to any individual who shows up at the polls on election day but who appears not to be registered—or to whom election officials are otherwise unwilling to provide a ballot (perhaps for failure to satisfy a voter ID requirement). Strikingly, federal law provides no rule for whether or when a state must count provisional ballots. Each state has its own rules. Some states make efforts to determine whether ballots are valid, including notifying voters of defects and providing them with an opportunity to rectify any problems. Other states are far more restrictive.

But the upshot of this increase of early voting, mail-in voting, and provisional ballots is that there are a large number of ballots that require some form of processing before they can be counted. And for at least some of these ballots, that processing cannot be completed or perhaps even started before election day itself, either because the ballot has not yet arrived or been cast or because state law forbids beginning to tabulate before the polls close.

In many, but by no means all, jurisdictions, mail-in ballots and provisional ballots skew Democratic. For example, in Pennsylvania in 2016, when mail-in voting was only a fraction of what it was in the 2020 primary, Trump’s margin shrank by 24,000 votes between election night and the final tally.

Trump believes, perhaps with good reason, that the vote-by-mail electorate in crucial states will be less supportive of him than the in-person electorate. So without pointing to any reliable evidence, he has tried to cast doubt on the integrity of states that send ballots to all voters, and perhaps of states that even send all voters vote-by-mail applications. (He seems to be fine with some forms of absentee voting, at least in jurisdictions run by Republicans.)

On top of that, over the summer, Trump made a series of remarks suggesting that he was opposed to providing sufficient funding to the United States Postal Service to handle the upsurge in voting by mail. At roughly the same time, the recently appointed postmaster general and Republican mega-donor Louis DeJoy announced an “organizational realignment” of the Postal Service that reduced employee overtime hours (resulting in delays to some mail delivery) and eliminated certain postal-sorting machines. In letters sent to all states and the District of Columbia in July, the Postal Service’s general counsel warned election officials that state laws permitting voters to request ballots less than fifteen days before the election “are incongruous with the Postal Service’s delivery standards.” While public and congressional outrage forced DeJoy to back down on some of the changes, the question remains whether the move to a mostly vote-by-mail election will run smoothly.

But even with all these difficulties, millions and millions of mail-in ballots will be returned in time to be counted—and in California, for example, a ballot is timely as long as it is postmarked on or before election day and arrives no later than seventeen days after the election. So in tight races, the election-night results may not indicate the ultimate winner. For example, in 2018 Arizona Republican senatorial candidate Martha McSally was up by 15,000 votes over her rival Kyrsten Sinema on election night but lost by 56,000 votes after the mail-in ballots were counted.

What will happen, Douglas asks, if Trump is ahead on election night in critical states but starts to fall behind as the mail-in or provisional ballots get tallied? Douglas anticipates that Trump, perhaps aided by a politicized Department of Justice (which lacks independent litigating authority but can file statements of interest in the district court and amicus briefs supporting a party in the courts of appeals or Supreme Court), would surely litigate to stop the count while he is still ahead or to challenge those ballots. What happens if the counts are not completed by December 14, the date electors are required to cast their votes, let alone if the counts are not completed by January 6, when Congress meets to count the electoral votes? Will Trump accept the results if election officials conclude that Biden has received more votes? Douglas cites Robert Reich’s view that Trump will prove “pathologically incapable of admitting defeat,” and we would find ourselves in a constitutional crisis.

But a huge danger lies ahead even if the upcoming election goes smoothly, or smoothly enough to satisfy the Election Official’s Prayer—“Dear Lord, let this election not be close.” I am less optimistic than Douglas that a “decisive defeat” for Trump would avoid a crisis. If Trump leaves the White House on January 20, 2021, he will not go gentle into that good night. Addicted as he is to Twitter and the limelight, he is likely to continue attacking his successor, stirring up his base, and suggesting that the election was stolen, thereby continuing to undermine the legitimacy of the democratic system. Douglas imagines the former president setting up with Sean Hannity at the Trump International Hotel just a half-mile from the White House, where he can launch his long-planned cable network, rally his die-hard supporters, and “remain a force of chaos for years to come. Indeed, having lost in 2020, he could run again in 2024.” So whatever happens in November, the answer to the question “Will he go?” may unfortunately be: “Not for a long, long time.”