Trump v Biden: US contemplates nightmare scenario of disputed election

Rhetoric from both sides points to potential constitutional crisis if result is close

It is a scenario that the US state department has warned about the world over: an incumbent politician in a democracy with weak institutions tries to hold on to power by casting doubt on an election that should have swept him out of office.

Now, in a twist of irony, it is the United States that election experts and officials are worrying about – thanks to a global pandemic, record-low trust in government, an archaic electoral system and, most of all, a president who has demonstrated a willingness to shatter norms of governance.

In his new book Will He Go? Trump and the Looming Election Meltdown in 2020, the Amherst College law professor Lawrence Douglas lays out exactly how such a scenario could happen, beginning late on the night of November 3rd. Most television networks call the election for the Democratic challenger Joe Biden – with the exception of Fox News. Donald Trump refuses to concede.

What could ensue if no winner is agreed upon, Douglas argues, is nothing less than a constitutional crisis, with Trump and House of Representatives speaker Nancy Pelosi – next in command under the 1947 Succession Act – each declaring themselves commander-in-chief on inauguration day, January 20th, 2021, and the US constitution and federal election law powerless to facilitate a solution.


“We’re really not equipped at all,” says Douglas, who says his research started out asking whether US federal law was able to deal with a contested election. “If you have an incumbent refusing to concede ... our federal electoral law would exacerbate it rather than diffuse the crisis.”

Such a scenario might once have seemed like scaremongering. But questions about the November election have been growing in recent months as Trump, who is currently trailing in the polls by a considerable distance, has criticised the use of postal voting in the election.

They reached fever point on Thursday when the president raised the idea of a delay in the election – even though the date is laid down in the constitution.

“2020 will be the most INACCURATE & FRAUDULENT Election in history,” Trump said in a tweet. “It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”

Democratic politicians and activists and most neutral observers believe Trump’s criticisms of the election are principally the product of his fear of losing – and that he is trying to both demotivate potential Biden voters or create ground for contesting the result afterwards.

The president's tweets "put the public in a mindset where you see long lines at one polling place in one county [and think] this whole election is false", says Aditi Juneja, a lawyer with the advocacy group Protect Democracy. "It's not about November, it's about undermining the confidence in the election in the run-up to the election so that people don't participate in the election ... or that they are already primed not to have confidence in the outcome."

But the potential for confusion is being aggravated by the circumstances created by the coronavirus pandemic, which are exposing longstanding failings in the process for conducting elections in the US.

Many experts worry that with less than 100 days to go, a wide swath of US states are nowhere near ready for the torrent of mail-in ballots and queues of voters that await them. They warn that delays in counting postal votes could mean there is no clear victor on election night.

"This is a slow-moving disaster at this point," says Rebecca Green, co-director of the election programme at William & Mary law school in Virginia. "My eyes are wide-open and terrified."

Popular vote

This is not the first time Donald Trump has tried to muddy the waters around an election.

In his final TV debates against Hillary Clinton, he said he was not sure he would accept the 2016 election result and he has spent much of the last four-years re-litigating the outcome – including his significant loss on the popular vote.

Trump established a Presidential Advisory Commission on Election Integrity, which spent a year-and-half investigating Trump's claim that millions of illegal votes had cost him the popular vote. (The commission was ultimately disbanded.)

Asked in July by Fox News if he would accept the result of the election, Trump said: “I have to see. No, I’m not going to just say yes.”

Some Democrats, meanwhile, have also questioned the events that led to the 2016 result, raising the issue of Russian interference in the race, and asking whether then-FBI director James Comey’s decision to reopen an investigation into Hillary Clinton’s email server had also swayed the result.

Biden has raised his own concerns that Trump could be laying the groundwork to steal the 2020 election.

"It's my greatest concern, my single greatest concern: This president is going to steal this election," Biden told the TV host Trevor Noah on the Daily Show. "This is a guy who said all mail-in ballots are fraudulent, direct voting by mail, while he sits behind a desk in the Oval Office and writes his mail-in ballot to vote in the primary."

Ned Foley, director of the election law programme at Ohio State University's Moritz College of Law, says the rhetoric from both parties has been alarming.

“I don’t like to do both side-isms ... but Biden has said the country can’t withstand a second term of Trump,” while Trump has warned of a rigged result and that mail-in votes cannot be trusted.

“Both sides think this is an existential election and the entire country is at stake – the American way of life, the American state of democracy,” says Foley. “If the presidential election ends up not being particularly close this year, we’ll probably be fine. If it’s close we’ll be in trouble ... [Both sides are] going to look to fight anything they can fight.”

The steady erosion of trust in US institutions that has accelerated in the past 3½ years could also contribute to this scenario, a situation exacerbated by the president’s frequent criticism of the news media, intelligence community, courts and any other institution that stands in his way, with few figures of authority left to guide the country through a disputed result.

At the same time, hyper-partisan cable news and information on the internet that is often untethered to reality could encourage a candidate to defy the official results.


Against this backdrop, many election experts had already been bracing for a controversial election. Then coronavirus added another twist.

The pandemic has already wreaked havoc on primaries in Wisconsin and Georgia, where absentee ballots failed to show up at voters' houses in time, resulting in overcrowded polling places with hours-long wait times. In Georgia, those problems were compounded by new, malfunctioning voting machines.

US officials are warning that a big increase in mail-in ballots as a result of the virus will lead to a delay in states reporting their results, which are unlikely to be announced on the night itself. This lag between the vote and the results, some experts worry, could enable the losing candidate to sow doubts about the results.

Democrats have also raised alarm at Trump's selection of Louis DeJoy, a Republican donor, to lead the US Postal Service "right before an election where millions of people will try to vote by mail", as Alexandria Ocasio-Cortez, the Democratic congresswoman from New York, put it. Already there are reports that DeJoy's new cost-cutting efforts have led to significant mail backlogs in certain parts of the country, which could hamper voters' ability to receive and send ballots on time.

For Douglas, the nightmare scenario would be razor-slim outcomes in a handful of swing states after Democrats end up taking the lead only as a result of mail-in ballots that are received and counted after election day. (Mail-in and absentee ballots, which can be sent as late as election day, tend to favour Democrats – a phenomenon known as the “blue shift”.)

“It is possible to imagine that Trump has eked out a victory in [certain] swing states only to see that victory disappear as mail in ballots are counted,” he says.

In the 2018 midterms, for instance, there were a number of races in California and Arizona where the election night leads that Republican candidates enjoyed disappeared in the days that followed after mail-in votes were counted.

A particularly contentious scenario would occur if such a disputed result occurs in Pennsylvania, Michigan or Wisconsin – three states that Trump and Biden are desperately competing to win. All three states have Democratic governors and Republican-controlled legislatures – opening the possibility that competing branches of government could offer opposing interpretations of the results and who the victor is.

With that scenario, "you're really back to 1876", Douglas says, referring to the presidential contest between Rutherford Hayes and Samuel Tilden, an election that was resolved only two days before the inauguration.

Gore-Bush recount

In the wake of that election, Congress passed the Electoral Count Act, barring single states from issuing more than one electoral college vote count. Yet modern-day election day scholars point to the statute's unclear wording, which they say provides little guidance on how to resolve the issue.

They add that many of the arguments that dominated the 2000 Bush-Gore recount in Florida also remained unresolved. The US may no longer have the problem of “hanging chads” – the pesky half-punched paper ballots that alarmed Florida’s recount election officials – but some scholars argue that not enough measures have been taken to prevent a disputed result from playing out in the future.

While the 2000 election ended after the supreme court ruled in Bush’s favour, it was really Gore’s decision to concede after the court’s ruling that ultimately ensured the peaceful transfer of power, Douglas argues, a scenario he says he cannot envision playing out in the Trump era.

In 2018, Florida and Georgia faced their own election controversies, which scholars fear could be repeated. In Georgia, election experts found irregularities in the voter registration records in the gubernatorial race between Democrat Stacey Abrams and Republican Brian Kemp. Florida's once again had tight governor and senate races, leading to more recounts in the state – albeit a less drawn-out process than 2000.

Voters' rights groups say they worry the pandemic could exacerbate voter suppression in states such as Georgia, North Carolina and Texas, which have a history of voter discrimination lawsuits.

"We see officials in some places using the pandemic as a pretext to deny people access to the ballot," says Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law. In Tennessee, her organisation has already brought litigation against state officials who were unwilling to extend absentee ballot access during the pandemic. "We have to be wary and vigilant given recent experience in places like Georgia," she says, where suits have been brought on the basis of the 1965 Voting Rights Act.

Former president Barack Obama summed up the Democrats' fears for this election in his eulogy for Congressman John Lewis on Thursday.

“Even as we sit here, there are those in power are doing their darnedest to discourage people from voting,” he said, “by closing polling locations, and targeting minorities and students with restrictive ID laws, and attacking our voting rights with surgical precision, even undermining the Postal Service in the run-up to an election that is going to be dependent on mailed-in ballots so people don’t get sick.”

Nightmare scenario

On the other side, conservative groups are amplifying their own concerns about voter fraud.

"Most states don't have sufficient processes in place to support the tsunami of paper that is headed their way. You can count on the fact that the accuracy, the security, the efficiency is going to suffer. There is not enough time to reinvent the wheel," says Catherine Engelbrecht of True the Vote, a conservative group that says it is trying to protect against voter fraud.

"Despite what certain media outlets might suggest now, it's long been commonly held that the type of voting that is most prone to fraud is mail-in ballots. It's the least secure way to cast your vote," she says, citing a May special election in Paterson, New Jersey, where four individuals have been charged with voter fraud after an election that was entirely vote-by-mail.

Like many Democrats on the other side of the aisle, she too envisions a nightmare scenario: “Just imagine Bush vs Gore times 50 where everything freezes.”

Already there have been warning signs. During Wisconsin's primary, held in the midst of the pandemic in April, Milwaukee was able to operate only five polling sites, compared with the 180 it normally runs. Officials from both parties say they are working overtime to avoid a similar fate.

Ohio secretary of state Frank LaRose, a Republican, says his state is now scrambling to find a younger generation of volunteers, who would be less susceptible to the virus, to deploy as poll workers, and he is bracing for a possible shortage in polling sites.

“A 1,200 square foot church basement or something that may have been a great polling location last year may not make sense this year,” because of social distancing, says LaRose, suggesting that the state may have to persuade schools to still open as polling sites to avoid the sort of chaos that happened in Milwaukee.

In Michigan, Jocelyn Benson, the Democratic secretary of state, has already warned about a potential days-long delay in receiving the results.

“With the current law saying we can’t even begin processing those ballots sent through the mail until election day morning, it’s going to take significantly longer time to safely and securely count those ballots that are sent in the mail,” she says. “And that may mean it’s Wednesday or Thursday [after the Tuesday poll] before people hear the results.”

States say they are now waiting for more help from Congress to navigate the new terrain of the pandemic and pay for items ranging from machines that cut open ballot envelopes – allowing rural areas to count ballots faster – to more paper ballots in order to accommodate voters who don’t feel comfortable using some states’ touchscreen voting machines.

LaRose, the Republican Ohio secretary of state, says Trump could ultimately suffer as a result of his tweets about postal voting because it could depress turnout among members of his own party.

“One of my concerns is that my fellow Republicans are going to read that and say: ‘Well then, I don’t want to vote by mail,’” he says. “What they’re doing is hurting themselves. They’re forgoing a really excellent opportunity to, you know, safely and securely and very conveniently cast their ballots.” – Copyright The Financial Times Limited 2020