Typically, the horrific power of nightmares fades in the light of day, as lurid but implausible images are exposed to rational thinking. That’s what I keep expecting to experience after writing over and over again (dating back to this spring) about the threat of the president engineering and exploiting a contested election to remain in office.
Sure, Trump can easily create and inflame fears of imaginary voter fraud among his followers, and can produce a partisan tilt in voting methodologies that gives him a good chance of an Election Night lead even if mail ballots doom him. He can claim victory based on partial results (known as the red mirage scenario) and argue that subsequent mail ballots are “fraudulent.” He can deploy partisan pols, lawyers, and judges to delay and restrict vote-counting, and he can stimulate an orgy of anger and chaos in the media and in the streets. But is that enough to produce an actual election theft? And is Trump just enjoying the prospect of chaos instead of developing an audacious strategy for using it to seize a second term? A lot of i-dotting and t-crossing is necessary to fill out the scenario that would get us from here to there, and there are plenty of voices suggesting the whole thing is preposterous.
But now, thanks to The Atlantic’s Barton Gellman, we have a full-on, painstakingly detailed exposition of an election-theft scenario that is simply too plausible to dismiss or ignore. It includes all the elements many of us have been writing about for months: Trump’s lawlessness and unwillingness ever to concede defeat; the outsized role of voting by mail in this pandemic-season election; Trump’s incredibly frequent attacks on voting by mail that appear equally designed to push Republicans to vote in person (which according to polls he has succeeded in doing) and to delegitimize the mail ballots that will be mostly counted after Election Day (with the “blue shift” toward Democrats that already exists being greatly enhanced by COVID-19 fears and the partisan split in preferred voting methods); and the army of Republican lawyers who are in court fighting to ensure the maximum number of mail ballots are thrown out for technical errors or late receipt.
What Gellman adds is a lot of evidence of Trumpian/GOP premeditation, along with a terrifying vision of where this kind of contested election might lead, with the Chaos President holding the reins of executive power.
He richly documents that all the preelection Republican litigation is being matched in resources and intensity with plans for Election Day voter intimidation in Democratic areas (thanks to the end of a standing court order against such practices) and subsequent efforts to interfere with the counting of mail ballots, in court and even on the streets:
During the primaries this spring, Republican lawyers did dry runs for the November vote at county election offices around the country. An internal memo prepared by an attorney named J. Matthew Wolfe for the Pennsylvania Republican Party in June reported on one such exercise. Wolfe, along with another Republican lawyer and a member of the Trump campaign, watched closely but did not intervene as election commissioners in Philadelphia canvassed mail-in and provisional votes. Wolfe cataloged imperfections, taking note of objections that his party could have raised …
Some of the commissioners’ decisions “were clear violations of the direction in and language of the election code,” Wolfe wrote. He recommended that “someone connected with the party review each application and each mail ballot envelope” in November. That is exactly the plan.
That’s the inside game. There’s an outside game as well:
The electoral combat will not confine itself to the courtroom. Local election adjudicators can expect to be named and doxed and pilloried as agents of George Soros or antifa. Aggressive crowds of self-proclaimed ballot guardians will be spoiling to reenact the “Brooks Brothers riot” of the Bush v. Gore Florida recount, when demonstrators paid by the Bush campaign staged a violent protest that physically prevented canvassers from completing a recount in Miami-Dade County.
And as Gellman consistently reminds us, a president who provokes chaos is then in a position to use chaos as a rationalization for the actual purloining of electoral votes. Gellman finds evidence of Republican planning underway in one key battleground state, Pennsylvania, to circumvent a popular vote made “inconclusive” by fraud allegations and chaotic conditions, and appoint Trump electors as the Constitution allows state legislatures to do:
In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.
“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.” He added that everyone’s preference is to get a swift and accurate count. “If the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the election’s integrity.
Jake Corman, the state’s Senate majority leader, preferred to change the subject, emphasizing that he hoped a clean vote count would produce a final tally on Election Night. “The longer it goes on, the more opinions and the more theories and the more conspiracies [are] created,” he told me. If controversy persists as the safe-harbor date [December 8, when state-certified electoral slates are presumed as definitive] nears, he allowed, the legislature will have no choice but to appoint electors. “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”
Now there are plenty of reasons to doubt that this is actually where “the law takes us,” ranging from the Electoral Count Act of 1877 that gives governors the final say on state electoral slates (Pennsylvania’s governor is a Democrat) to state laws giving governors and election administrators all or part of that responsibility. But the fact that Republican leaders in a key state believe they have the power to set aside the popular vote is sobering.
The one factor Gellman does not mention that could encourage extraordinary irresponsibility among Republican elected officials is conservative media egging them on. Already there is talk in Trumpian media circles of a presumed Democratic “coup” to steal the election via phony mail ballots sent in after Election Day, or by challenging the legitimacy of the Electoral College. The idea of a preemptive strike to prevent this “coup” and resolve the election in Trump’s favor seems to be in the air.
If and when we get to competing electoral-vote slates amid wildly competing claims of who won (and it’s entirely possible there will be states that cannot complete the popular vote count by the day the Electoral College is supposed to virtually “meet,” December 14), the full incoherence of the above-mentioned 1877 statute and the even hazier constitutional provisions governing a contested election will kick in. As I tried to explain recently, the country would be in territory uncharted since 1877, when a second civil war nearly broke out over a contested presidential election. And here’s how Gellman thinks it could play out in a contested Trump-Biden election as Congress gathers in joint session in January (as the Constitution provides) to officially determine who has won:
Who does the counting? Which certificates are counted?
The Trump team would take the position that the constitutional language leaves those questions to the vice president. This means that Pence has the unilateral power to announce his own reelection, and a second term for Trump. Democrats and legal scholars would denounce the self-dealing and point out that Congress filled the gaps in the Twelfth Amendment with the Electoral Count Act, which provides instructions for how to resolve this kind of dispute. The trouble with the instructions is that they are widely considered, in Foley’s words, to be “convoluted and impenetrable,” “confusing and ugly,” and “one of the strangest pieces of statutory language ever enacted by Congress.”
If the Interregnum is a contest in search of an umpire, it now has 535 of them, and a rule book that no one is sure how to read. The presiding officer is one of the players on the field.
At this point there are myriad possibilities, ranging from judicial intervention à la Bush v. Gore, to a default election of the president by the House (Republicans currently control a bare majority of state delegations in the House, which is how that chamber votes on presidents), to an inauguration with no elected president and House Speaker Nancy Pelosi assuming the job, to competing would-be presidents backed by competing parties, segments of the public, and perhaps even elements of the armed forces.
The one constant in this ultimately hazy landscape, as Gellman keeps pointing out, is the man who is in charge until he’s not:
If our political institutions fail to produce a legitimate president, and if Trump maintains the stalemate into the new year, the chaos candidate and the commander in chief will be one and the same.
If that doesn’t chill your bones, nothing will.
At this point, there are three things that could lay this nightmare to rest once and for all. The first is a massive shift of Democratic voters from an intention to vote by mail to voting in person. There is some evidence such a shift has begun, but not enough so far to eliminate the partisan tilt at the center of the red mirage scenario. The second is a clear Biden win on Election Night (which for all the reasons discussed above, would probably require a pretty large ultimate popular-vote majority). And the third is a preemptive backlash against an early Trump victory claim among the Republican elected officials and conservative media players who would be expected to support and carry it out. If the scenario Gellman lays out is truly paranoid and impractical, then Trump fans can very quickly rule it out right now.