By Marshall Cohen
Updated: Tue, 21 Jul 2020 11:16:36 GMT
Voting experts and political strategists from across the political spectrum are increasingly alarmed about the potential for a disputed presidential election in November, one in which one candidate openly questions the legitimacy of the results or even refuses to concede.
These experts are keenly aware of President Donald Trump's well-documented history of lying about voter fraud and claiming that elections were "rigged" when he doesn't like the outcome. They also see a Democratic base that is still burned from 2016, when its nominee was dragged down in part by Russian meddling operation, won the popular vote, and lost to Trump.
Interviews with nearly 20 election experts, former lawmakers, political strategists, legal scholars and historians indicate there are widespread fears of a nightmare scenario in November, where Trump's norm-breaking behavior -- coupled with the unprecedented challenges of pandemic-era voting -- test the limits of American democracy and plunge the country into a constitutional crisis.
"There's a significant scope for an unprecedented post-election crisis in this country," said Larry Diamond, an expert on democratic institutions at the conservative-leaning Hoover Institution.
Sharpening these concerns, it became clearer than ever over the weekend that Trump is willing to dispute the results. He was repeatedly pressed in a Fox News interview on Sunday, and refused to commit that he will accept the outcome of the election. "I have to see," Trump replied, "No, I'm not going to just say yes. I'm not going to say no, and I didn't last time either."
More Americans than ever are expected to cast mail-in ballots this year, so it will take longer for results to trickle in. Experts are eschewing "election night" for "election week," because it could realistically take days, and maybe weeks, until news outlets project a winner. Both presidential campaigns have set aside millions of dollars and recruited lawyers for the looming legal fights.
As Trump slides in the polls, he already declared that his matchup this fall against presumptive Democratic nominee Joe Biden "will be the most rigged election in our nation's history." Trump's messaging, coupled with his past behavior, has insiders contemplating what he'll do if he loses.
"If it's a very close election, there's no question in my mind that he'll contest it," said former Pennsylvania Sen. Rick Santorum, a CNN contributor who backed Trump in 2016 and supports his reelection. "Even if it's not a very close election, I think he'll want to contest it, but I don't think he'll have a broad base of support to protest this election, and he wouldn't get very far."
Delayed results in November
There is good reason to brace for chaos. This cycle has already broken new ground for how elections are conducted, with massive changes being implemented because of the coronavirus.
States dramatically scaled up vote-by-mail options, using spring and summer primaries as a "dry-run" for the November election. There were successes, like Kentucky, with its sprawling "supercenters" where people could safely vote in-person. But there were disasters too, like Wisconsin and Georgia, which were plagued by missing absentee ballots and grueling lines.
"Many of these states are not prepared for what this election will be," said Amy Walter, national editor of the nonpartisan Cook Political Report. "They have never done vote-by-mail like this. It's messy and mistakes are going to be made. People are going to stand in long lines. Ballots won't arrive. There will be people in every state who can make a case that the process was flawed."
Even these fixes create new problems of their own. States will be handling more absentee ballots than ever, which will slow down the tabulation process. Some jurisdictions accept ballots postmarked on Election Day, which further slows down the vote count. It took longer than a week for winners to be declared in recent congressional primaries in New York and Kentucky.
This uncertainty is fueling trepidation about what will happen after the polls close on November 3.
"There is deep skepticism and concern, across the political spectrum, about how this election is going to unfold," said Joe Goldman, president of the Democracy Fund, a nonpartisan foundation that has extensively studied voter attitudes toward political norms and democratic institutions.
Trump's checkered past
With all these changes, experts see an opening for Trump to dispute the results, even if the election isn't marred by widespread fraud, which is essentially a non-factor in US elections.
Trump has been candid about his views on expanding mail-in voting: He has repeatedly said it threatens his reelection chances and would hurt Republicans across the board, even though nonpartisan experts say neither party typically gets an automatic boost from postal voting.
To prevent these perceived losses, Trump pleaded with states to restrict mail-in voting by falsely claiming it is plagued by "massive fraud and abuse" and leads to "rigged elections." His efforts have been unsuccessful. Officials implemented reforms from ruby-red Utah to liberal Vermont.
Having lost this battle, Trump could blame mail-in voting if he loses in November. That would fit with his well-established past of questioning the legitimacy of elections, dating back eight years, even though there was no proof of widespread irregularities or fraud in any of these elections.
Presidential election, 2012: Trump backed Republican nominee Mitt Romney and spread false conspiracies on Election Day that machines were deleting Romney votes. After the race was called, Trump denounced the results as a "total sham" and tweeted, "We can't let this happen. We should march on Washington and stop this travesty." Iowa caucuses, 2016: Trump said the caucuses were illegitimate after he finished behind Texas Sen. Ted Cruz. After the vote, Trump said, "Ted Cruz didn't win Iowa, he stole it," and accused Cruz of committing "fraud." Trump called for a new election, said Cruz's results should be "nullified" and said "the State of Iowa should disqualify" Cruz. Presidential election, 2016: At the final debate between Trump and Democratic nominee Hillary Clinton, Trump infamously refused to commit that he would accept the results. Instead, he said, "I will tell you at the time. I'll keep you in suspense." Even after Trump won, he falsely claimed there were millions of illegal votes in California and other states, creating a false narrative to explain why he lost the popular vote to Clinton. Florida Senate election, 2018: On election night, Florida Republican Rick Scott led Democratic Sen. Bill Nelson by 38,000 votes, with many ballots still uncounted. Scott's lead narrowed over the next two weeks as mail ballots were tallied. But Trump quickly claimed there was massive "fraud" and "corruption," and accused Democrats of "stealing" the election by "finding" new votes. Trump declared that the election "should be called in favor of Rick Scott" and said Florida "must go with Election Night" results. After a statewide recount, Scott was up by about 10,000 votes, and Nelson conceded. Arizona Senate election, 2018: Republican Martha McSally was ahead on election night, but Democrat Kyrsten Sinema later took the lead. Once that happened, Trump decried "corruption" and tweeted, "call for a new election?" McSally later conceded.
In a June interview, Biden said his "single greatest concern" is that Trump will "try to steal this election," adding, "We might not know who won Pennsylvania ... until a month after the election."
Trump said in response that he'd "go on and do other things" if he loses, and a campaign spokesman said, "President Trump has been clear that he will accept the results of the 2020 election." But Trump undermined that on Sunday.
In an email to CNN, the Trump campaign refused to say that it stood by its unequivocal statement from June about accepting the results.
"We don't know what kind of shenanigans Democrats will try leading up to November," Trump campaign spokesman Tim Murtaugh told CNN. "If someone had asked George W. Bush and Al Gore this same question in 2000, would they have been able to foresee the drawn out fight over Florida? The central point remains clear: in a free and fair election, President Trump will win."
There is very little precedent in American history for a disputed presidential election.
No presidential nominee has ever refused to accept defeat, historians said, not even after the bitterly disputed 1876 election, which saw widespread vote-rigging by both parties and was resolved just two days before the inauguration. After the Supreme Court ruling in Bush v. Gore, then-Vice President Al Gore conceded the 2000 election and stepped away from public view.
This time around, Trump could dispute the results and refuse to concede. He could urge his supporters to flock to Washington and defend the White House. He could complain about supposed fraud but then peacefully leave Washington on Biden's first day. Or, he could file lawsuits in state and federal courts and try to prove that the results were tainted by irregularities.
"You can start with rhetoric, but then eventually it turns into a legal process," said Mike Shields, a CNN contributor and former Republican National Committee chief-of-staff, who supports Trump. "Saying something happened and challenging it legally in court are two different things."
The Trump campaign and the RNC have already brought lawsuits in key states about voting rules, and have said they're prepared to spend $20 million on litigation. (A Trump-backed lawsuit over mail-in voting is already moving forward in Pennsylvania.) For their part, the Biden campaign says it's organizing 600 lawyers and thousands of volunteers to handle voting issues.
Supreme Court showdown?
Nonpartisan experts and political strategists told CNN they are afraid that the Supreme Court might once again be called upon to decide the election. Election lawsuits in state and local courts could be appealed up to the Supreme Court, which has a 5-4 conservative majority.
These experts also said congressional Republicans will play an important role in influencing Trump's behavior after the election. Though that dynamic could quickly change if Republicans lose their Senate majority, which stands at 53-47 but is in serious danger of slipping away.
"Once we have confirmed results, should Biden win in a fair election, it'll be incredibly important for Republicans on Capitol Hill to accept those results and participate in the peaceful transition of power," said Amanda Carpenter, a CNN contributor who was a top adviser to Cruz and other conservative Republicans before turning on Trump and raising the alarm about his behavior.
Perhaps in a sign of their separation from the President, very few Republican senators have echoed Trump's false claims about mail-in voting, though they haven't explicitly called him out for lying. In fact, many Republicans are alarmed that his rhetoric could backfire, by discouraging reliable GOP voters from participating in mail-in balloting, suppressing conservative turnout.
Much of what Trump does in November will depend on the margin. If the race tightens, and comes down to one or two close states, Trump's base might go along with a protracted legal challenge. But if Biden's lead holds up, and he wins convincingly, Trump has fewer options.
"There's a large segment of the Republican Party who understand that elections aren't wildly fraudulent, and if Trump loses in a Romney or McCain-type fashion, then there's no room to contest it," Santorum said, referring to the lopsided Republican losses in 2012 and 2008.
It's the Democrats, too
While Trump routinely floods the zone with misinformation about elections, experts noted that there has been problematic rhetoric on both sides. Some insiders told CNN they're afraid that Democratic partisans could reject the legitimacy of the results, or cause civil unrest, if Trump wins again with the help of foreign meddling, of if there is proof of large-scale voter suppression.
Some top Democrats have said Trump's 2016 victory was illegitimate, including Clinton and Georgia Rep. John Lewis, the civil rights icon who died from cancer on Friday. They pointed to Russia's election-interference efforts to weaken Clinton and help Trump, using viral propaganda on social media, military-grade hacking and damaging email leaks, according to US intelligence.
The US government says Russia didn't change vote tallies. But it's impossible to measure the electoral impact of Russia's systematic campaign against Clinton, and Trump clinched the presidency by winning Wisconsin, Michigan and Pennsylvania with smaller-than-1% margins.
Georgia Democrat Stacey Abrams has also faced significant criticism for refusing to concede her gubernatorial race in 2018. The election was marred by widespread allegations of voter suppression, and took place with controversial laws enacted by Republicans that appeared to target and disenfranchise Black voters. Abrams is a potential vice-presidential pick for Biden.
"This rhetoric has become widespread, not just with Trump and the conspiracy caucus in the Republican Party, but with some Democrats as well," said Doug Heye, a GOP strategist and CNN political commentator. "A big part of the Democratic Party absolutely believes Stacey Abrams had that election stolen from her, and she has never stood up to say that it wasn't."
Experts told CNN that there is serious potential for civil unrest if Trump wins, eclipsing the large and sometimes violent protests that occurred after Trump's 2016 victory. Tensions are higher now, especially after recent protests against racial inequality devolved to riots in some cities and were met with violent police crackdowns, including by federal forces outside the White House.
"If Trump once again loses the popular vote and wins the Electoral College, there will be a lot of clamoring that our democracy is broken," said CNN presidential historian Douglas Brinkley. "That would be the first time a president was elected twice without ever getting the most votes."
Averting a crisis
Even if one side refuses to accept the outcome, that doesn't mean the results are invalid. States have made major strides to bolster election security and double down on paper ballots that can't be hacked. New auditing measures make it easy to confirm the accuracy of the final vote tallies.
"The 2020 election will be the most secure election we've ever had," said David Becker, founder of the nonpartisan Center for Election Innovation and Research. "More paper ballots, more audits, more secure databases, and more information-sharing between election authorities."
More than 90% of Americans will vote on paper ballots this year, a record high achieved in large part by reforms in battleground states like Pennsylvania and Georgia. If something nefarious happens, election authorities can go back to the original ballots and tally the correct results.
If Trump, or perhaps Biden, still dispute the results, there are avenues to deal with it. Their teams could file lawsuits on the state and federal level, though legal arguments would need to be based on facts that can be proven to judges -- unlike many of the President's made-up claims about elections and fraud.
"At the end of the day, if there is no evidence to support those claims, the election authorities will announce their results, and the issues will be resolved," said Michael Morley, a law professor at Florida State University who specializes in election emergencies.
There are hard deadlines built into the process by the Constitution. Members of the Electoral College meet in their states on December 14 to formally cast their votes, so disputes should be settled beforehand.
But even this is imperfect. What happens if the GOP-controlled Wisconsin legislatures approves a slate of pro-Trump electors, while the Democratic governor names a pro-Biden slate? This played out in the disputed 1876 election, which was ultimately decided by a special commission.
No matter what, Trump's current term expires on January 20, 2021. House Speaker Nancy Pelosi alluded to these institutional backstops Monday in an MSNBC interview, saying, "The presidency is the presidency," regardless of what Trump does, "it's not geography or location."
There is still time to avert an all-out crisis this November, experts say.
Congress needs to give states more money handle the influx of mail-in ballots, and negotiations are underway to build on the meager $400 million that was already doled out. A bipartisan group of former national security officials urged lawmakers Monday to address the shortfall.
State officials need to educate voters about the new procedures. And the press needs to set the right expectations and make it clear that "election night" will likely be a week-long affair this year.
"If the result is decisive, it would be hard for even the strongest partisans to dispute things," said CNN senior political analyst Ron Brownstein. "In a close election, things could get very ugly."