//  9/25/20  //  Commentary

It seems like a stolen election is all anyone can talk about these days. Will Trump have state legislatures appoint electors despite losing the vote, as the blockbuster Atlantic article mentioned as a real possibility? Will Trump not peacefully leave office if he loses, as he keeps suggesting might happen? Will the results just be frozen on election night, with late-arriving ballots uncounted?

These scenarios are worth contemplating, because they are so scary and destructive. And, indeed, because I argued a Supreme Court case about the role of presidential electors this spring (Colorado v. Baca), and so happen to know a good bit more about the weird technicalities of electing the president than is healthy for anyone, I’ve been thinking carefully about these possibilities too. But there are two important pieces of context for them.

First, none of these nightmare scenarios is likely to happen. As I explain below, any path Trump has to the Supreme Court somehow declaring him the winner hinges on a meaningful count being conducted, and that meaningful count being really close.

Second, by constantly asking the President to expound on these topics, the media only makes things worse. So let’s calm down.

To the first point. Some people are acting as if a stolen election is inevitable because, they claim, there are basically no hard rules governing presidential elections and Trump will just concoct something out of thin air that the Supreme Court or the Republican majority in the Senate will be. Take, for instance, the misleading and dramatic headline on the misleading and dramatic piece by normally mild-mannered Fareed Zakaria today, which is “Trump could stay in power even if he doesn’t win the election. The Constitution allows it.” A reporter from The Nation tweeted: “Trump [right hand on Bible]: I am going to steal the election, so help me God.” And so on.

But Trump cannot just steal an election by claiming he won, any more than any other politician can just steal an election by claiming victory. Contrary to the somehow-emerging popular wisdom, there are existing rules about how the popular votes and then electoral votes will be counted, and Trump and his allies need a way to distort that process. There are only so many ways to do that. All hinge on the outcome being very close.

Very roughly, here is what happens when we vote for President. Votes are tallied in local precincts, and totals are sent to centralized election officials in each state, who then tabulate and release results. States release unofficial results at various intervals beginning after the polls close on election night; the AP also has thousands of stringers in touch with local election officials receiving reports of results. Unofficial results are frequently updated as counting progresses, and sometime a few weeks later, the count is completed. At this point, official results are canvassed and certified, usually by the Secretary of State or official canvassing boards in each state.

Now consider the first scenario that some people envision: Trump just says the count should stop on election night. It should be frozen. This cannot, and will not, happen. Trump controls zero people who actually count votes. But don’t take my word for it, take recent history. In the 2018 Arizona Senate election, the Republican candidate was up by 14,000 votes on election night, and she conceded defeat six days later, after more votes were counted. She lost by 60,000 in the official tally, and there wasn’t even a recount. This was true even though Republicans controlled the Arizona Governor’s office, Secretary of State’s office, judiciary, and legislature. There are reports of a few partisans being dismayed at the change in outcome as more votes were counted, but there was no “pause” button anyone could hit to freeze counting on election night. The votes were counted.

The same will certainly be true this year. Votes will be counted in Pennsylvania and Michigan and everywhere else for days and weeks following the election, and they will be certified at some point in mid or late November. If Trump brought a lawsuit on November 4 saying enough was enough, stop the count and certify the results immediately, I am confident he would be laughed out of every court in America. Yes, that includes this very conservative U.S. Supreme Court.

So his strategy would have to be different than just calling a halt to the proceedings. He would have to say that there was enough uncertainty in the ongoing count in a few states that either 1) we need a recount that basically throws out tons of ballots from groups he doesn’t like, or 2) a state legislature needs to declare the outcome so uncertain that the state has “failed to make a choice” for President, and so can just appoint a slate of Republican electors to cast electoral votes for Trump regardless of what the certified results say.

I have little doubt that Trump may try both of these strategies. But unless the certified results are exceedingly close — far closer than the 2016 results in Michigan (11,000 votes), Wisconsin (38,000), Pennsylvania (65,000), or even Nebraska’s Second Congressional District (6,500) — they are not likely to go anywhere. Recounts and election contests happen in about 1 in 200 statewide elections and, per FairVote and FiveThirtyEight, change an average of 282 votes when they happen. When Al Franken flipped the result in Minnesota’s Senate election in 2008, that recount flipped 440 votes. An election challenge that results in the invalidation of thousands or tens of thousands or hundreds of thousands of votes that were initially counted under state law (or would have been counted absent some halt) would be orders of magnitude beyond what we’ve ever experienced.

So I’m willing to stipulate that, if it’s really close in a key swing state or two, and everything turns on that, we’re into a nightmare scenario, and, as in Bush v. Gore, the Supreme Court could likely find a way to hand Trump the election. But let’s also recognize that the election coming down to fewer than 1,000 votes in a state or two, is very, very unlikely. (FiveThirtyEight puts a 1 in 20 chance on a recount, which it takes to mean the election comes down to one or more states where Trump and Biden are within .5% of each other. One in 20 is more than high enough to worry but not nearly enough to declare it’s inevitable.)

If the certified result is not within 1,000 votes in a key state or two, Trump could try and “steal” the election in some other way. The Atlantic article has, on the record, Trump advisors saying he might argue that the certified results are fraudulent, likely because of the high volume of mail ballots, and so the relevant state legislatures should reject the certified result and appoint their own Trump electors. This move would be unconstitutional and illegal, for legal reasons I’m currently working on fleshing out in detail. But let’s turn from law to politics and recognize that other officials accepting this move as legitimate hinges on the election being within some margin where, if you squint, it could look like Trump “really” won. Because for state legislators to take this extraordinary step of invalidating the popular vote, and then for other officials up and down the system to find ways to accept that coup (and it would be seen as a coup in many quarters), would take an acquiesensce to one man’s claim to power that we simply have not seen before in America.

Let me unpack that last idea. I am not saying that state legislatures will not consider unilaterally declaring Trump the winner in their states if the election is close or even sort-of close. But I am saying that the degree of difficulty of winning with this strategy is much higher than people are acknowledging right now. Faced with certified election results that favor Biden by a relatively safe margin, it would be unprecedented to have state legislators overturn that (on grounds of fraud?), and then for judges and politicians to accept that usurpation without actually running another count, purely to further one man’s claim to power. Since citizens were given the right to vote for President in the 1820s, there has not been a single election in American history resolved this way. In all previous disputed presidential elections — and all other statewide elections, as far as I know — the state winner was at least certified to have received more votes in the relevant state than the other candidates.* For, say, the Wisconsin legislature to try and send Republican electoral votes to Congress when that state’s own Electoral Commission has certified a win for Biden would be without precedent in the technical sense of “there is no precedent.” It’s never happened.

I acknowledge that these scenarios are, to use Donald Rumseld’s framing, the known unknowns. I suppose there are unknown unknowns that we should also at least contemplate. For instance, could the county-level election officials in Florida simply refuse to count votes cast on November 3 for some reason? I guess it’s possible. I don’t see how or why they could just decide that some votes are good, some are bad in a state (like every swing state) where absentee ballots are generally allowed by anyone who requests them. Those votes are sitting there, waiting to be tabulated, and it’s their job to tabulate them. Or, what if there is a massive power outage or system failure in Detroit or Philly or rural Pennsylvania that prevents votes from being cast on election day, or tabulated for weeks? That, too, could lead to chaos. But the odds of those things are really remote.

To sum up, shenanigans will be tried. It’s becoming clear that Republicans think that their only way forward will be to win through shenanigans, or at least to put that idea out there to get people to think it’s pointless to vote. But that doesn’t mean it’s likely to work. Absent a very close election—and, if the election were held today, polls show it wouldn’t be all that close—Trump really has no path to victory, whether through the voters, courts, or Congress. He needs a Hail Mary pass. Again, to repeat: Hail Mary’s can work. But they only work about 2.5% of the time in football. That number sounds about right to me based on where we stand today: a good chance of a legit Biden win, large or small (75%); some chance of an honest-to-goodness electoral college victory again for Trump (22.5%); and a small chance that the election will be super-close with Biden appearing ahead in tabulations but Republicans somehow successfully maneuvering to have Trump installed for a second term (2.5%).

Second, and much shorter, point. There is no more value in the media now asking Trump every day about this issue. We know what he thinks on this topic. And we also know that he won’t point to some grand plan he has or say anything remotely factual. There are no facts. And there is no plan, really, except to sow doubt and chaos about counting votes in the midst of a pandemic, see if the election’s close, and then figure out how to put those two together to change the result if he’s behind.**

It is hard to imagine, of course, him leaving office after all he’s said to this point. But he’s a reality show star, so of course he’s going to leave us all in suspense about how it’ll happen if he’s voted off the island. Maybe he’ll go kicking and screaming, or maybe he’ll slink into the night. Maybe he’ll be lead out of the White House by his fellow Republicans, like Nixon was. Maybe there will be some violence in the streets, or a lot of it. It’s not that I’m not scared of any of that. I am. But sometimes fear can be out of proportion to the likelihood it’ll occur. This is one of those times.

So, yes, I’ll keep thinking about worst-case scenarios. I’ll make sure we have good arguments, legal and political, about why Trump can’t do about 27 things he might want to do. But the best way to protect against any scenario is to make it a blowout. Go vote.

*For election history nerds, consider what happened in the disputed 1876 election as an interesting window of where the weak points in the system might be now versus what they were then. In that election, the reason the official slates from Florida, Louisiana, and South Carolina were in dispute was the Republican canvassing boards rejected returns from Democratic areas where blatantly racist voter suppression had occurred, so Hayes was certified as the winner in those states, and the certifications were contested as illegitimate. That scenario is very unlikely to happen this election. We now have a more robust and professional vote counting operation in every state than existed in 1876, and there’s no real path to political actors just excluding wide swaths of votes from totals that ought to be initially included, as happened in 1876. So the challenge to the results this time is more likely to happen after all the votes are counted in a state and certified for Biden, and the claim would be that some votes should have been excluded (as votes were in 1876, you could imagine them saying). But in a post-certification electoral contest happens, the outcome of the statewide election basically never changes, unless the result is within a few hundred votes.

**Before we go crazy about how uniquely destructive Trump is to our democracy, it’s worth recalling that Trump’s plan is not much different than what George W. Bush did or publicly contemplated in 2000. Bush managed to get the Supreme Court to halt an uncompleted recount with him ahead by 537 votes. During the dispute, his allies openly contemplated the Florida legislature just picking the electors if the result of the recount was uncertain. There are two important lessons from this episode. First, in 2000, Florida went through the normal election certification process, and the contest over ballots and hanging chad was a traditional contest over which votes should count. Second, the potential direct appointment of electors was only thought reasonable because the election was so close. I don’t see a path for Trump to try his gambit 20 years later without those conditions, though maybe this time it won’t have to be quite as close as Florida was in 2000.


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I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

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The Kennedy-Nixon election in 1960 in Hawaii went to a recount. How Hawaii dealt with it—with two sets of electors casting two sets of electoral votes—provides a model for how to handle very close elections.