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How Trump Could Subvert the Election

Despite fears, the president likely won’t be able to cling to power in defiance of the results. But more familiar schemes to thwart democracy could be just as damaging, writes Brennan Center Fellow Zachary Roth.

June 10, 2020

In case you didn’t have enough to worry about, oppon­ents of Pres­id­ent Trump are start­ing to go public with a fear that has long lurked just beneath the surface of Amer­ica’s polit­ical conver­sa­tion: that he will refuse to accept the legit­im­acy of an elect­oral defeat, or use some extra-legal means to stay in power, trig­ger­ing a consti­tu­tional crisis.

Trump “may well resort to any kind of trick, ploy, or scheme he can in order to hold onto his pres­id­ency,” Bob Bauer, a veteran Demo­crat elec­tion lawyer and Joe Biden’s personal attor­ney, has said.

Unfor­tu­nately, there’s good reason for the concern, and the plan­ning that’s being under­taken by Demo­crats and good-govern­ment advoc­ates to address scen­arios like these is neces­sary and import­ant. Trump has several times “joked” about serving more than his consti­tu­tion­ally permit­ted two terms, and has often expressed admir­a­tion for author­it­arian lead­ers who have side­lined demo­cracy to stay in power. There are numer­ous examples of his utter disreg­ard for the rule of law, from the abuse of power that led to his impeach­ment to his unpre­ced­en­ted attacks on peace­ful protest­ers exer­cising their First Amend­ment rights.

His recent barrage of false tweets about mail-in voting — “Demo­crats are trying to Rig the 2020 Elec­tion, plain and simple!” he wrote last month — appears clearly aimed at dele­git­im­iz­ing the vote in advance, and there’s evid­ence that this effort is having the inten­ded effect on some of his support­ers. Mean­while, Jared Kush­ner declined to confirm, when asked recently, that the elec­tion will be held at all. (To be clear, the Trump admin­is­tra­tion does­n’t have the power to suspend or cancel the elec­tion, which can only be done through an act of Congress).

But we should­n’t let this kind of author­it­arian power-grab scen­ario become the prime focus of media and public concern about the elec­tion. First, it could demor­al­ize some poten­tial voters by making them fear, wrongly, their votes won’t matter anyway. More import­ant, it’s likely to shift atten­tion away from the much greater threat. In real­ity, if Trump is going to stay in power ille­git­im­ately, it’s far like­lier to be by under­min­ing the elec­tion on the front end, through a mix of old-fash­ioned voter suppres­sion and the spread­ing of misin­form­a­tion.

It’s not that Trump would likely have qualms about brazenly defy­ing elec­tion results, of course. It’s more that he’d have a hard time actu­ally succeed­ing. Once a state has certi­fied the results of its pres­id­en­tial vote, they can only be rejec­ted through a major­ity vote of both houses of Congress. And that’s leav­ing aside that, to continue to exer­cise effect­ive power, Trump would some­how need to convince both the lead­er­ship and rank and file of the exec­ut­ive branch and the milit­ary to stay loyal to him, rather than to the consti­tu­tion. Again, it’s a very good thing that people are plan­ning for scen­arios like these, because the stakes are so high. But the safe­guards in our system make them highly unlikely to come to pass.

By contrast, the voter suppres­sion threat is clear and grow­ing. Trump and his allies are devot­ing unpre­ced­en­ted resources to efforts to obstruct voting, includ­ing fight­ing off lawsuits brought by Demo­crats and voting rights advoc­ates. In some states, Repub­lic­ans are doing all they can, egged on by the pres­id­ent, to fight any exten­sion of mail-in voting, poten­tially forcing voters to risk their health at the polls.

Mean­while, the expec­ted surge in mail-in ballots is likely to lead to legal battles over issues like absentee ballot dead­lines and signa­ture-match­ing, with Trump’s campaign set to argue for the most restrict­ive inter­pret­a­tions of law possible, poten­tially deny­ing a voice to hundreds of thou­sands of voters, or more.

If the elec­tion is close, one or more of these issues may well end up before the Supreme Court. And given this court’s troub­ling record on voting rights cases, there’s no guar­an­tee that justice will prevail. And that’s without even getting into the array of suppres­sion tactics — voter purges, strict ID require­ments, cuts to voting hours and days — that loomed even before the pandemic upen­ded elec­tion plan­ning.

We can also expect Trump’s allies to launch a soph­ist­ic­ated effort to spread false inform­a­tion aimed at confus­ing and demor­al­iz­ing voters. The pres­id­ent’s campaign advisers have signaled that destroy­ing Joe Biden’s image will be cent­ral to their strategy, and already they’ve taken advant­age of social and conven­tional media compan­ies’ hands-off approach to poli­cing polit­ical lies to level a false attack about Biden and Ukraine. We’re almost certainly going to be hit with more of this. That’s leav­ing aside the kind of false propa­ganda, often aimed at stok­ing divi­sions in Amer­ican soci­ety to boost Trump, that malevol­ent foreign actors are creat­ing.

What makes these scen­arios partic­u­larly danger­ous is that they might not set off the kind of alarms they should. If Trump tries to defy clear elec­tion results, the media and other insti­tu­tional actors can be expec­ted to call out his power grab in unequi­vocal terms. That should create enough pres­sure to deny Trump the support he’d need. But a Trump victory that came through misin­form­a­tion spread during the campaign, and then pandemic-aided disen­fran­chise­ment — espe­cially if it’s ulti­mately blessed by the courts — would be much less widely iden­ti­fied as ille­git­im­ate, at least by non-Demo­crats. There would likely be no single bright line crossed, just a series of anti-demo­cratic moves compound­ing each other to deny voters a fair elec­tion. It would be the ulti­mate frog-in-boil­ing-water situ­ation — and one that argu­ably already happened, more or less, not so long ago.

It might not produce a consti­tu­tional crisis. Indeed, you’d likely hear the argu­ment advanced by some that accept­ing the valid­ity of this kind of result was the best way to prevent a crisis and main­tain some fragile stabil­ity for a deeply divided coun­try. But make no mistake: such an outcome would deal another major blow, perhaps the biggest yet, to our deeply troubled demo­cracy. If we’re going to worry, that’s the scen­ario that should be at the front of our minds.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.