One of the few elections that Donald Trump lost in 2016 was the Iowa primary. When Sen. Ted Cruz (R-TX) won, Trump called the election fraudulent. Trump said “either a new election should take place or [the] Cruz results should be nullified.”
It doesn’t take a lot of imagination to speculate on what might happen in a close election this year. With millions of absentee ballots, an injured post office, a pandemic, and a president who says the only way he can lose is if the election is rigged, we could be just 67 days away from a once-in-a-lifetime electoral event horizon.
But the 78 days between Election Day and inauguration may prove to be the determining factor as to whether or not our democracy survives.
What happens next is what we examine in this week’s WhoWhatWhy podcast with Lawrence Douglas, Amherst professor of law, jurisprudence, and social thought.
Douglas details how and why we are in uncharted territory, the places we should examine for maximum stress on the system, and what we can expect psychologically.
In 2000 we learned how the courts played a major role in election outcomes. This time, Douglas says, it may be out of the hands of the courts. There is, he shows us, a profuse supply of political weapons concentrated in the hands of the president and his most fervent, distrustful, and easily unsettled supporters in state houses and in Congress.
Not to mention, the chaos and violence that could spill over into the streets.
Douglas even explains how we could actually get to the scenario of the inauguration of Nancy Pelosi on one side of the Capitol, while Trump insists on being inaugurated for a second term on the other.
If Trump thought the 2016 election was “crooked,” imagine what he will say about this one?
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|Jeff Schechtman:||Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman.|
|Jeff Schechtman:||“And so power passes” has been the fundamental idea of our republican form of government. The peaceful transition of power has been the lubricant that has allowed the preservation of the US and other Western democracies. Never, until perhaps this moment, have we actually thought deeply about what happens when that is threatened, when the occupant of the White House might actually refuse to leave.|
|Jeff Schechtman:||Many are counting down the days until Election Day. Certainly, a lot will happen between now and then, but the 78 days of the interregnum between Election Day and inauguration may very well be the determining factor upon which our democracy will or will not survive. For sure, chaos, bombast, legal challenges, and a confused media will be the least of it. Violence and going to places we’ve never been before are all possible.|
|Jeff Schechtman:||To put this in both historical and legal perspective, I’m joined by Professor Lawrence Douglas. He’s the James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College. He is the prize winning author of seven previous books, and his newest work is Will He Go?: Trump and the Looming Election Meltdown in 2020. Lawrence Douglas, welcome to the WhoWhatWhy podcast.|
|Lawrence Douglas:||It’s a pleasure to be with you, Jeff.|
|Jeff Schechtman:||Are we in uncharted territory from both a legal and historical perspective?|
|Lawrence Douglas:||I think we are. And I think what really makes this unprecedented is that we have an incumbent in the White House who basically has told the American people that our electoral system is not to be trusted. We’ve never had a president communicate that message to the American people before. And in fact, what Trump has done is he’s kind of created this almost “heads I win, tails you lose” situation where the only way for the electoral system to show its legitimacy is if he wins. And if he loses, he uses that as proof that the election was a hoax. And we’ve never before had a president who has run down to the American people the integrity of our electoral process.|
|Jeff Schechtman:||And of course, the overlay to this is the discussion that we hear so much of lately with respect to mail-in ballots. But the broader framework of that is that they just take longer to count. And unlike other elections, this may not all be decided on election night.|
|Lawrence Douglas:||Yeah, I think there are two things. I mean, I think a lot of your listeners have to ask themselves, why is Trump launching these attacks on mail-in ballots? Why is he insisting that mail-in ballots can’t be trusted? And I think to answer that question, we have to bear in mind a couple of facts.|
|Lawrence Douglas:||I mean, first of all, we know that mail-in ballots, that tens of millions of Americans are going to rely on them given the pandemic. And what we also know is that the people who kind of rely on them are largely going to be people in densely populated urban areas, who are particularly vulnerable to the health risks of in-person voting. And we also know that people in densely populated urban areas vote overwhelmingly Democratic.|
|Lawrence Douglas:||And so I think what Trump is trying to do is he’s trying, in a sense, by de-legitimizing in advance these mail-in ballots, is both part of the politics of voter suppression, which has kind of emerged as a staple of Republican politics of the last couple of decades or so. But maybe even more ominously, it’s as what you suggested, Jeff, is it’s a way for him to discredit any electoral result which in the weeks after the election turn the result of the vote in Biden’s direction as these mail-ins get counted. It becomes part of a strategy on his part to insist that the results of November 3rd are the legitimate results, and any results that come from mail-in ballots have to be tossed out.|
|Jeff Schechtman:||One of the things that has been a factor in the past in determining winners and losers has been the role of exit polling. That changes dramatically in a time of mail-in ballots as well.|
|Lawrence Douglas:||Absolutely. And it’s not impossible to imagine that Trump could have a lead in the swing states on November 3rd. But again, that would probably only represent the fact that you have a lot of rural voters who are less concerned about the health risk of in-person voting.|
|Lawrence Douglas:||And let’s also acknowledge the fact that people’s reactions to the pandemic have broken on partisan lines. And so you’ve obviously seen Republican voters taking the whole thing less seriously. More willing to go into crowds and not wear masks.|
|Lawrence Douglas:||And so it’s also possible to imagine that Trump would enjoy a lead on November 3rd because of these millions of votes still to be counted. And what he would try to do is, then, to kind of bootstrap that lead into victory to say that that’s what we have to go with because the mail-in ballots are unreliable.|
|Jeff Schechtman:||To what extent did 2000 teach us anything about how to deal with this from a public perspective, how to be patient, how to wait, or not? Talk about that.|
|Lawrence Douglas:||Well, so as your listeners probably remember, so in 2000 everything ultimately turned on the outcome in Florida. We had a very, very tight election, though I should mention that Al Gore did win the national popular vote by about half a million votes. But again, the Electoral College outcome was all about what happened in Florida. And that was an incredibly tight race, and we didn’t know until 35 days after the election who had won that race.|
|Lawrence Douglas:||And I should say, a lot of people, I think, misleadingly give the US Supreme Court credit for bringing closure to that electoral dispute because it was the Court that, 35 days after, intervened and basically said Florida had to stop its recount. I remember when they stopped its recount, Bush was clinging to this improbably tiny lead of 537 votes. I mean, that’s what handed him the presidency in a country of 300 million.|
|Lawrence Douglas:||But I think it’s inappropriate to think that it was the Supreme Court that brought closure to the election dispute. I think it was Al Gore who, on the day after the Court handed down what was, frankly, a badly reasoned and pretty transparently partisan decision, it was Gore who very graciously conceded. And I think it’s impossible to imagine Trump acting in like fashion. Everything we know about Trump tells us it’s simply not in his DNA to concede, especially in such a tight race.|
|Jeff Schechtman:||Which really begs the question of whether or not from an institutional and a legal perspective, whether our institutions can hold up under both the stress, the chaos, and the exhaustion that will come in these days following the election.|
|Lawrence Douglas:||I think that’s a really, really important point because, obviously, we have pretty powerful democratic institutions in this country, which have demonstrated their durability for more than two centuries. But that said, I think when it comes to our electoral system, I think we have largely avoided real calamities, partly as a result of luck and partly the result of the character of people seeking higher office. People like Al Gore, who are willing to concede, who basically … I mean, it was clear that Gore basically put the interests of the nation ahead of his own political fortune.|
|Lawrence Douglas:||And if you have a president who is absolutely unwilling to do so, really is willing to play kind of electoral brinkmanship, then it raises the question that you ask, which is, well, how well designed are the institutions to deal with that? And I think the answer is they’re not well equipped at all to deal with that. It basically assumes that the candidates for higher office have internalized the norms of the system. And if they haven’t, then the system is really, really quite vulnerable.|
|Jeff Schechtman:||What about the idea, though, that if it drags on so long, I mean, and this is part of what is the constitutional design, that if it drags on so long, the Speaker of the House simply becomes president on January 21st?|
|Lawrence Douglas:||Well, that’s true. But I mean, let’s put this in perspective. And it goes a little bit back to your introduction of our segment, Jeff, because if it is the case that if our electoral system really is kind of paralyzed and we’re unable to say that anyone has received an electoral majority, you might say that according to the Presidential Succession Act of 1947, well, the system has a kind of a stopgap procedure, which tells us that Nancy Pelosi would be inaugurated as acting president.|
|Lawrence Douglas:||But that’s if things were running in a kind of normal way. You have to kind of factor into this a president who all along is going to be, again, in the 78 days between November 3rd and noon on January 20th, a president who will be tweeting, saying, “I have been reelected. These radical Democrats are trying to steal the victory away from me and from the American people.”|
|Lawrence Douglas:||You could imagine Russia engaging in a very powerful disinformation campaign, trying to support the kind of conspiracy theories that would no doubt be emerging from the President. And of course he can rely on his megaphones in the right-wing media to kind of repeat and amplify his message that, “The election’s being stolen from me.”|
|Lawrence Douglas:||So that creates a potentially very toxic and unstable situation. And as you also mentioned at the outset, the really kind of the dreadful prospect of violence.|
|Jeff Schechtman:||Talk a little bit about what happens in a situation where there is complete paralysis? What happens from a legal perspective?|
|Lawrence Douglas:||Well, I mean, to get to that complete paralysis, a number of things would have to happen. And I should mention that they’ve happened before in American history. If some of your listeners they’re thinking, “Oh, this is just some kind of professor spinning out his Twilight Zone fantasies,” we should bear in mind that in 1876, in this famous or infamous election between Rutherford B. Hayes and Samuel Tilden, our system did experience basically paralysis. And the paralysis continued until two days before inauguration.|
|Lawrence Douglas:||And a lot of it has to do with, it gets a little bit technical about the bizarre way in which we elect a president. I mean, one thing I think we need to bear in mind, Jeff, is we wouldn’t even really be talking about this if we had the kind of system of electing a chief executive that most Western democracies have. I mean, we’re the only one that relies on this kind of incredibly anachronistic Electoral College system.|
|Lawrence Douglas:||And if we had something like simply a direct national vote for the president of United States, I don’t think we would really be worrying about this because I do think that Trump will experience a decisive defeat in the popular vote. And I think even if he responds to a decisive defeat by kind of complaining and trying to cast it as product of corruption, I think his capacity to really kind of trigger a constitutional crisis will be dramatically limited. But unfortunately, we have a system that everything turns on the outcome in a handful of swing states, and that could very well permit things to drag on and on and on.|
|Jeff Schechtman:||In this kind of environment, what do you see as the proper role and responsibility of the mainstream media?|
|Lawrence Douglas:||Well, that’s an excellent question. And I think one of the things that the media could well service, one way that they could well service is if they just simply reminded us that November 3rd, when we turn on the televisions on November 3rd or the radios on November 3rd or our computers on November 3rd, that it’s not as if we’re kind of watching the Kentucky Derby or so, and that we should assume that by the time we go to sleep, we know who the next president is.|
|Lawrence Douglas:||Given the fact of voting in a time of pandemic, given the reality of tens of millions of people relying on mail-in ballots, it’s very likely that we won’t know who the president is on November 3rd. It’s very likely that it might take weeks before we know who actually won the election. And that I think it becomes incumbent on the media to remind us that’s normal given abnormal circumstances. And it’s not a signal that the system is already melting down, because I do think that is something that Trump and his supporters will try to do.|
|Lawrence Douglas:||First of all, I think they’ll try to delay the count of the mail-in ballots. Again, so they can emphasize that the results of November 3rd should be recognized as the binding results. But they’ll also try to cast all the kind of delays as some deeply anomalous situation, which reflects a system melting down. And I think the media need to remind us that this is an unusual election, and we just need to be patient as all the states move through this kind of arduous process of counting these mail-in ballots.|
|Jeff Schechtman:||In many ways, you couldn’t ask for more factors layered into this that are creating a problem. I mean, if you look at Trump back during the 2016 primary, for example, even in Iowa when Ted Cruz defeated him, and he talked about wanting to hold that election over again, you’ve got that fundamental attitude layered onto mail-in ballots in the midst of a pandemic, et cetera, et cetera. I mean, it couldn’t be worse in terms of the number of factors working against a smooth and normal election.|
|Lawrence Douglas:||Yeah. I mean, if it weren’t such a tired cliche, I guess we would now be talking about a perfect storm. But yes, that’s kind of exactly right. And I should actually mention, Jeff, that when I started writing this book, I kind of did it almost more as a thought experiment. And in a sense, Trump’s response to the Iowa caucus was in the back of my mind. And I simply was kind of interested in just asking, well, how well equipped is our system to deal with a president who will reject electoral defeat?|
|Lawrence Douglas:||And really, when I started writing, I was kind of working from the assumption that he’s probably going to get reelected. It’s not a result I want to see, but he seemed in a pretty strong position at that time. And now a lot of what we’ve seen with the pandemic, with mail-ins that, unfortunately, a lot of the things which I kind of thought as maybe just improbable circumstances that might come together, look all the more likely that this is the reality that we’re going to be facing just in a few weeks.|
|Jeff Schechtman:||From a legal perspective, I mean, we have a sense from Bush v. Gore of the role of the courts. Talk about the role, if any, that Congress plays in all of this as it plays out in those 78 days.|
|Lawrence Douglas:||Yeah. Well, Congress plays a very important role because what Congress ultimately does is … And this gets a little bit granular, but I think your listeners will find it nonetheless of interest. So we have this Electoral College, and in order to win, you got to get 270 votes. And remember, these are real people. These are people who have basically pledged to a slate of candidates. And if, for example, Biden wins Michigan, then Biden’s electors go to Lansing on December 14th and they cast their votes for Biden. And then the governor of Michigan would mail that electoral certificate on to Congress. And Congress on January 6th, 2021, they open these electoral certificates, they count them up, and they basically declare a winner. And that’s really when you actually have the real president-elect at that moment, about two weeks before inauguration day.|
|Lawrence Douglas:||But if you have a kind of complicated situation in which basically Congress can’t decide who won a state’s electoral votes … Let’s say, for example, let’s go back to Michigan for a moment, and let’s say, Trump says, “I won Michigan because I had a lead on November 3rd,” and the Republican legislature, again, recall Michigan is controlled by a Republican legislature, they agree with him. And they say, “Trump has won our state,” and they recognize him as winning the state, and they send his electoral certificate to Congress.|
|Lawrence Douglas:||And then the governor of Michigan comes along and says, “No, no, no, no, no. Biden’s won the state based on the full canvass of votes, even if it took weeks and weeks to finally tally that number up.” And so electoral certificate for Biden is sent by the governor of Michigan to Congress.|
|Lawrence Douglas:||Now, Congress suddenly on January 6th doesn’t know who won Michigan because Congress is confronted by this conflicting electoral certificates. And if the election is hanging on the balance of what happens in Michigan, then that’s where you have a situation of a real stalemate. Particularly, obviously, if Congress remains divided as it is now between a Democratic-controlled House and a Republican-controlled Senate. Then suddenly you’re really in a world of hurt.|
|Jeff Schechtman:||And how will that play out? Who has what congressional responsibility?|
|Lawrence Douglas:||Yeah. The short answer to how it’s going to play out, if we get to that kind of situation of these conflicting electoral certificates, which again, just to remind your listeners is exactly what happened in 1876, where three different states submitted competing electoral certificates saying they basically couldn’t decide who won their state, and Congress was divided in 1876 exactly as it is at present, that is Democratic-controlled House, Republican-controlled Senate. And basically at that point, how does Congress work out that problem? It doesn’t. There’s no clear way.|
|Lawrence Douglas:||And this is, again, an example where federal law and the Constitution basically supplies no way out of that situation. It becomes, yeah, really a kind of a recipe for disaster. And then you might ask, well, what about the Supreme Court? They intervened in Bush v. Gore. Can’t they intervene in such a situation as well? And the answer, the short answer there is no, I don’t think so, because I think most constitutional experts would say that once an electoral dispute gets to Congress, lands in Congress’s lap, then it’s up to Congress to resolve it. The Court has no role whatsoever in resolving an electoral dispute once it lands in Congress’s lap.|
|Jeff Schechtman:||Talk about the exhaustion that you can imagine. I mean, you’ve been thinking about this obviously for a long time. As you say, you started this as a thought experiment. Just talk about the public exhaustion from something like this playing out.|
|Lawrence Douglas:||Absolutely. We’ve already seen that this is a nation that’s kind of on tenterhooks to begin with. And I think one thing that we need to be worried about is not simply exhaustion, but the way exhaustion, I think, can almost very quickly turn into its exact opposite, which would be kind of like an explosion of frustration and anger with the system. And that could come, obviously, from both sides.|
|Lawrence Douglas:||And the specter of violence remains real. I mean, we see it right now in our nation. And what we’ve also seen very disturbingly is the willingness on the part of the President to deploy federal agents and federal force in a really kind of terribly inappropriate overreaction. And what we saw going back to Lafayette Square and his photo opportunity that he staged, willingness to use really ugly overcommitment of federal force against peaceful protestors.|
|Jeff Schechtman:||And of course, the other part of that, the subset of that, and we’ve certainly seen examples over the past three and a half, four years where Trump’s bark is much worse than his bite. But the greater concern, it seems, would be enough chaos, enough confusion, even without him thinking he’s going across the line, to actually turn others across the line and result in the kind of violence that you’re talking about.|
|Lawrence Douglas:||Absolutely. I mean, we’ve seen his willingness to engage in these kinds of dog whistle politics. I mean, we saw that in the early stages of the pandemic, where in order to basically score political points, and again, these are right back in the swing states, places like Michigan and Wisconsin where he basically just kind of sends out a tweet saying, “Liberate Michigan.” And then we’re left with these very disturbing images of supporters answering his call. And not just protesting armed with automatic weapons, not just protesting outside the State House, but inside the State House itself. Very disturbing images.|
|Jeff Schechtman:||If you’re the other side, in addition to having lots of lawyers, election lawyers, constitutional lawyers, at the ready and had airports ready to go at a moment’s notice, what action do you take? How do you play against this?|
|Lawrence Douglas:||I think there are a couple of things that the Democrats should be doing and they are doing it, first of all, even during the Democratic National Convention, I think it was Nancy Pelosi encouraged people to vote early. Because I think, again, to the extent that states get bogged down in the counting of these mail-in ballots, and to the extent that there’s a huge influx of mail-in ballots at the last moment, that will create very potent opportunities for Trump and his legal team to challenge whether they’ve been submitted in timely fashion and to try to discount them. So I think one thing is to get out a message of, if you’re voting by mail-in ballot, do it early.|
|Lawrence Douglas:||Another thing is I think it would be very important for Democrats to make sure that polling places are not subject to intimidation, that people who are voting in person. I could easily imagine the administration, for example, sending out ICE agents to heavily Latinx neighborhoods for the purpose of trying to intimidate citizens from exercising their right to vote.|
|Lawrence Douglas:||So I think those are some of the things that I think they need to do in addition to having, as you suggested, which they do, very experienced teams of litigators to be able to respond very, very quickly. And in fact, it’s not even responding at November 3rd, Jeff. I mean, there’s litigation going on right now. I think there are about 60 suits that are going on right now in different states about everything from whether states can expand the use of dropboxes. That is, instead of having to mail your mail-in ballot in, you can take your mail-in ballot and just kind of drop it off in a box right by an official building. To whether the states can extend the date for the submission of mail-in ballots. All of that stuff is being litigated kind of right now as we speak.|
|Jeff Schechtman:||One of the other issues is some states can count those mail-in ballots early and some can’t.|
|Lawrence Douglas:||Yes. And in fact, again, one of the things that should be a source of concern is, obviously, there are states, exactly as you mentioned, that can start counting the mail-in ballots as soon as they arrive. So they arrive, and they start counting them. And then there are other states that actually don’t allow the mail-in ballots to even begin to be counted until Election Day itself. And unfortunately, Michigan, Pennsylvania, and Wisconsin, which I think a lot of people look at as the key swing states, they all fall into that second group that they won’t even begin to count their mail-in ballots until Election Day.|
|Jeff Schechtman:||Put a different face on this for a moment. Can you imagine a scenario where all of this chaos doesn’t happen? Can you imagine any scenario where it goes relatively smoothly?|
|Lawrence Douglas:||I think probably the best chance for that is to have Trump lose decisively and to have that decisive loss clear on Election Day, because it seems pretty clear from his own strategy and from his tweets. I mean, if you’ve been reading his tweets over the last several weeks, he’s been saying things already like, “Must go with Election Day results,” because I think he also recognizes that his best chance of winning is to try to bootstrap a lead into a victory and then try to discredit the mail-in ballot. But if it’s abundantly clear on November 3rd itself that he’s lost, then I really think that his hands are going to be tied. Again, I still think he can sort of send out these dog whistles, and he can encourage mayhem and some unhappiness, but I don’t think he can really trigger some deeper crisis of succession.|
|Jeff Schechtman:||Certainly, it would be interesting to look back from the perspective of 50 years from now to see how historians will be writing about what we’re talking about today.|
|Lawrence Douglas:||Yeah, no, that’s certainly true. And hopefully, they’ll be telling a story that is not an entirely unhappy one.|
|Jeff Schechtman:||Lawrence Douglas, his book is Will He Go?: Trump and the Looming Election Meltdown in 2020. Lawrence, I thank you so much for spending time with us here at WhoWhatWhy.|
|Lawrence Douglas:||Oh, it was an absolute pleasure, Jeff. Thanks for having me.|
|Jeff Schechtman:||Thank you. And thank you for listening and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to WhoWhatWhy.org/donate.|
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