By David H. Freedman – Newsweek
Jamaal Bowman, a progressive, scored an upset victory over incumbent Eliot Engel in New York’s 16th Congressional District. The primary took place on June 23rd, but the contest wasn’t officially decided until more than three weeks later—and then only because Engel finally conceded. The problem wasn’t that the vote was close: Bowman held a 25-point lead in the early returns. It wasn’t because of a recount: there wasn’t one. The trouble was in simply counting the votes. More than 400,000 New York City voters mailed in their ballots—five times more than did so in the general election of 2008—burying election officials in paperwork. Had Engel chosen to challenge the mail-in ballots, you’d be reading this story without knowing the results.
If only this were just a New York issue. The general election on November 3 may not end quite so cleanly. President Trump, whose poll numbers have been in decline for weeks over his messy response to the coronavirus pandemic, seems unconstrained, at least rhetorically, by the American political tradition of the peaceful transfer of power. He has said, with no basis in evidence, that he will consider mail-in votes to be fraudulent, setting up a post-election case for rejecting the results. On Sunday, he tweeted a call for “immediate litigation” over mail-in voting in Nevada, after Republicans there accused the Democrats of attempting “to steal our election.” On July 30, he floated the idea on Twitter of postponing the election. He told Fox’s Chris Wallace, when asked if he would respect the election results, “I have to see.”
President Obama has warned of the threats that 2020 poses to American norms. He told attendees at a fundraising event with actor George Clooney on Tuesday that he worries most about voter suppression and the danger of Trump questioning the election’s legitimacy. In his eulogy for Rep. John Lewis on Thursday, he criticized lawmakers who have “unleashed a flood of laws designed specifically to make voting hard,” calling it “an attack on our democratic freedoms.”
Trump may be weak politically but the office of the president commands enormous power. As commander in chief, Trump is already using armed federal agents against American citizens in cities run by mayors and governors of the opposition party, over their objections. His tweets and comments erode public trust in the upcoming election.
Past elections, no matter how divisive, have ended with both sides honoring the process. The bitter 2000 election deadlock between George W. Bush and Al Gore did not end with the Supreme Court’s ruling over Florida ballots; it ended when Al Gore, out of respect for the U.S. democratic system, conceded. What happens if one of the candidates—the incumbent—doesn’t concede?
Even in the best of times, a president who threatens to disrespect election norms and laws would be cause for alarm. These are not the best of times. The number of things likely to go wrong in this election is unprecedented. Polls are vulnerable to hacking from China, Russia and North Korea. Efforts to block voter registration and other forms of suppression are rampant, particularly in Republican-controlled states. Skyrocketing COVID-19 infections are likely to keep people from the polls. In states including California, Texas and Washington, protesters have flooded the streets for weeks; in Portland, Oregon, they have clashed with federal troops, all of which could disrupt polling. The electoral college is uniquely positioned this year to collapse, leaving the election deadlocked and plunging the nation into a constitutional crisis. Taken together, these factors make it more likely than at any other time in more than a century that a U.S. election will fail to produce a winner who is accepted by a large majority as legitimate.
How would Americans react if one of the most polarizing presidential elections in history leads to confusion and wild accusations? Heightened levels of anger, doubt and fear mean that disruption in the days following November 3rd is all too likely. Groups of citizens have in recent months brandished (and some have fired) semi-automatic weapons in the streets and other public places simply to protest pandemic-control measures. “What I’m most worried about is 36 hours of chaos after the election when [Joe] Biden says he won and Trump says he won,” says Clint Watts, a former FBI special agent specializing in information warfare and now a research fellow at the Foreign Policy Research Institute. “You almost know that’s what’s going to happen. Then you have people showing up with AR-15s. Maybe it’s not a full-scale insurrection, but it will be easy for everything to get out of control.” For Trump, that might be further cause to call for armed intervention.
“We managed to get through a civil war, World War II and the social chaos of 1968 without a president suggesting an election shouldn’t go forward,” says David Farber, a historian at the University of Kansas who studies 20th-century political movements. “These sorts of fierce concerns about election legitimacy are unprecedented in U.S. history.”
(In fact, in the wake of the 9/11 attacks, George W. Bush’s administration did question whether it was legally possible to delay an election because of fears of a terrorist attack. They did not pursue the issue.)
Even if the election doesn’t trigger an existential crisis for American democracy, says Pinar Yildirim, a Wharton School researcher who studies the impact of social media, “it’s going to be one of most historic elections we’ll see for centuries to come.”
Misinformation and disinformation
Here’s one morsel of good news: the Russians, who waged a disinformation campaign with hacked dirt on the Democrats in 2016, seem less inclined this time around to attack the party. “The Russians seem worried about angering an incoming new government,” says Watts. A Joe Biden administration, he says, is far more likely to inflict sanctions on Russia than Trump ever was.
Russia can afford to lie low because Trump and the Republicans require less assistance in spewing the false, inflammatory accusations needed to stoke fear and anger, says Watts. “The American-made disinformation now is voluminous,” he says. “All the Russians have to do is look for opportunities to amplify it.”
Disinformation played a big role in the 2016 election and is a major reason many Americans—mostly Democrats—felt that the election wasn’t entirely legitimate. This year the level of disinformation could be as bad or worse. Facebook recently took down 100 Trump-supporting political disinformation accounts linked to just one source: convicted Trump ally Roger Stone. There are probably a lot more where that came from. Facebook has been reluctant to take action against phony political posts, leaving the platform rife with bogus “evidence” of Joe Biden’s dementia and corruption, and wild conspiracy theories linking Biden and other Democrats to child-sex rings and world takeovers. “They don’t want to be regulated, so they pander to the White House,” House Speaker Nancy Pelosi said of Facebook in May.
Stoking up the base with scary tales isn’t just effective campaigning. It has also become good business for a slew of fly-by-night U.S. entrepreneurs who operate political-disinformation websites. “It’s easy and profitable to put up a series of websites, load them with politically sensitive, fallacious information, drive traffic there and make money off of pay-per-click ads,” says Cindy Otis, a former C.I.A. analyst who specializes in disinformation, and author of the forthcoming book True or False: A CIA Analyst’s Guide to Spotting Fake News.
The coming avalanche of political disinformation is going to have a bigger effect on this election than on past contests, says Wharton’s Yildirim. That’s because the pandemic is shutting down other key types of campaigning while driving up our dependence on social media and other online sources of information. “Typically in an election year, there’s a lot of in-person outreach, from knocking on doors to rallies to town halls,” she says. “All that’s disappeared. Instead we’re consuming more social media, and it’s more full of misinformation.”
Ground Zero for the dissemination of political disinformation is Facebook. In spite of growing outrage over the platform’s unwillingness to remove or label false political claims, and an ongoing advertising boycott by more than 500 companies, CEO Mark Zuckerberg insists that policies won’t change—the result, some have argued, of a pact forged during a meeting with Trump and Kushner earlier this year. That all but ensures Facebook will reprise its 2016 role as the channel of choice for U.S. political disinformation hawkers, reaching 200 million Americans. Twitter is now doing more to restrict posts that misinform or spread potentially dangerous claims, to which conservatives have responded with accusations of censorship.
Whichever side loses is sure to level the charge that social media tilted the playing field in the other side’s favor, helping to undermine acceptance of the results, and feeding the fury that could ultimately lead to chaos in the streets.
Block that vote
The 2020 primaries have already featured a number of voting disasters: The software meltdown in Iowa’s caucuses; the hours-long lines at polling places in Georgia, California and Texas; the mail-in ballot glitches in Wisconsin and New Jersey and, most recently, the vote-counting delays in New York. In many states, voter turnout in November is expected to be three times larger than it was during the primaries, raising concerns of blocks-long lines and waits of half-dozen hours or more—all while fears of a spreading coronavirus hang over the crowds.
Although Trump’s numbers are hitting record lows and seem to shrink almost daily, polls also suggest he maintains a big edge over Joe Biden when it comes to enthusiasm among likely voters. That means Trump’s best chances lie with an election that presents daunting hurdles to voting, so that less-enthusiastic voters—presumably disproportionately Democratic—won’t succeed in getting their vote in, or won’t try hard enough.
That may explain why many Republicans seem to see anything that suppresses voter turnout as a feature, not a bug. For instance, Trump and congressional supporters such as Senator Roy Blunt of Missouri have opposed mail-in balloting on the grounds that it invites fraud, in spite of studies that clearly indicate otherwise, as well as the self-evident importance of allowing citizens to vote without fear of infection.
The pandemic has in fact driven up voter interest in mail-ins on both sides—but it may be too late to make the adjustment. Setting up a mail-in ballot system efficient enough to handle a large percentage of a state’s voters takes years, says Kathleen Hale, an Auburn University political scientist and election expert who works with officials throughout the country to help ensure elections go smoothly. Nevertheless, in response to the pandemic, dozens of states, including New York, have tried to vastly expand their mail-in capabilities—from supplementary absentee ballots to universal access—virtually overnight. They could face serious problems with the distribution, collection and counting of those ballots, says Hale, author of “How We Vote: Innovation in American Elections.” “There’s substantial risk in trying to change the system on the fly,” she says.
Twelve states passed legislation since March making it easier to vote by mail, but battleground states have drawn the most scrutiny. Small shifts in voting in Texas, Florida, Pennsylvania, Georgia, Michigan and North Carolina could swing 15 or more electoral votes one way or the other. The Texas governor and its Republican legislative majority have fought to block any expansion of mail-in voting. A pro-mail-in-vote group sued the state and won in a federal court, only to be overturned in a higher court when the state appealed.
Pennsylvania gets a C from the Brookings Institute’s mail-in-voting accessibility scorecard. So does Georgia, which sent out mail-in ballots for its primary. Under pressure from the Republican state legislature, however, the state does not plan to follow suit in the general election. Michigan gets a B, but Trump has threatened to withhold federal funds if the state doesn’t back off its support for voting by mail. Trump has so far refrained from making similar threats against Florida over its embrace of mail-in voting, perhaps because it’s where he himself votes—by mail, at least in the case of this year’s primary. In states that succumb to Republican pressure to hang onto restrictions on mail-in ballots, most voters will have only one option, says Hale: to endure long lines at the polls.
Meanwhile, many red states and counties have intensified their long tradition of making voter registration difficult and fleeting. Since 2016, 23 states have enacted legislation raising the bar on registration, such as narrowing the forms of acceptable identification or requiring registered voters to repeatedly re-register, according to the Brennan Center for Justice. With the exception of Rhode Island, every one of those states is red. Trump can’t afford to lose any but the smallest of them if he’s going to maintain a path to victory.
In what looks like an effort to further influence the turnout, red states and counties have found ways to underserve Democratic strongholds with access to polling places. In 2016, the wait in polling places serving predominantly Black neighborhoods was nearly a third longer than those serving white neighborhoods, according to one study. “Officials are weaponizing election budgets to selectively close or increase the wait at polling places near the voters they don’t like,” says Philip Stark, a University of California at Berkeley statistician who analyzes election integrity. The COVID-19 crisis, he says, is providing those states and counties with even more excuses to limit access to polling places.
The results are predictable: If Democrats win, Republicans will conjure up stories of a sea of fraudulent votes. If Republicans win, Democrats will charge that their votes couldn’t get through.
Risks in the machine
For those voters who do make it to the voting booth, can they be sure their vote will be counted? In most cases the answer is no, says Stark, who has been vocal in debates over voting-machine security. “We’re not in better shape than we were in 2016,” he says. “Arguably, we’re in worse shape.”
The problem, he says, is that virtually all voting machines have proven vulnerable in tests to malicious rigging or intrusion efforts, faulty preparation by inadequately trained local technicians, malfunctions as simple as power failures or inadequate electrical cords and other issues. Georgia, Pennsylvania and California have all experienced problems with malfunctioning machines. Even worse, he says, the election-night aggregation of electronic vote counts at county and state levels provides tempting one-stop targets for hackers and corrupt insiders who could be paid to sway the count.
The only way to ensure that all voters’ selections are counted is to have voters mark their votes on paper ballots, says Stark. That way, the results can be easily checked should allegations of irregularities emerge. Some machines register votes electronically and then produce a marked paper ballot that can be used for a recount or audit, but Stark says that’s not good enough. “There’s zero additional security there unless the voter takes the trouble to check that the machine has marked the vote correctly,” he says. “The more you rely on technology for voting, the more fragility there is in the system to exploit.”
Yet 29 states and the District of Columbia currently rely on machines for all or some of their voting, and many states and counties seem eager to invest more and more in digital voting machines, in spite of their spotty records. Los Angeles County spent $300 million to get new machines ready in time for California’s March primary, only to see software problems cause wait times of three hours and more. (The county later said the delays were due to the electronic system that checks voters in, and not the machines, but Stark disputes that claim.)
Meanwhile, cybersecurity experts warn that Russia, China and North Korea all have the capability to corrupt or disrupt electronic voting this November. They have the motivation, too: sowing chaos in a major adversary and the world’s largest democracy advances their own anti-democratic ambitions, both internally and internationally. All three countries have been implicated in hacking events involving computers related in various ways to U.S. elections.
The mere suspicion that vote-counting is riddled with errors and cyber-fraud could provide fertile ground for arguments about illegitimate results from the losing side.
Hacking the electoral college
The biggest risk in the November elections may well be the ambiguities and gaps in federal election laws that leave an election-swaying hole big enough for Republicans to drive a truck full of phony ballots through. That’s the judgment of Lawrence Douglas, an Amherst College law professor and election-law expert, and author of the recent book Will He Go: Trump and the Looming Electoral Meltdown in 2020.
The risk hinges on the possibility that key state Republican legislatures will direct their states’ electoral votes to Trump even if he loses. That audacious trick, says Douglas, would take advantage of delays of days or even weeks for mail-in votes to be counted. A legislature could simply declare an end to the counting process on election night or at any point thereafter when Trump is temporarily in the lead in the count, without regard for whether the remaining uncounted votes would put Biden on top. The legislature could then submit the state’s electoral votes to Congress as votes for Trump.
In split-party states such as Michigan, North Carolina, Pennsylvania and Wisconsin, Democratic governors could counter by submitting rival electoral votes to Congress that are based on the final count—which, in this hypothetical scenario, would indicate a victory for Biden. The U.S. Congress would have to sort out the mess. “There’s nothing in the law to stop states from submitting competing electoral certificates,” says Douglas. “And once it lands in Congress’ lap, the courts have no jurisdiction at all. Even the Supreme Court can’t intervene.”
It gets worse: Congress may not be able to agree on what to do. There is no mechanism in the Constitution for dealing with the problem, and the Senate and House would likely come to opposite conclusions, given their contrasting partisanship. In that case, both candidates could fall short of the minimum 270 electoral votes. Fortunately, the Constitution specifies what happens when no winner emerges in an election: the House of Representatives votes on who will be the next president, with each state delegation in the House getting one vote.
Right now there are 26 Republican-dominated delegations and 23 Democratic ones, with one split. By that math, Trump would be the victor. But the vote would likely take place after January 3, 2021, when newly elected representatives are sworn in. If the elections swing just a few Republican House seats to the Democrats, the House vote could end in a 25-25 tie. At that point, explains Douglas, the process ends, and Nancy Pelosi is sworn in as the next president. “The Constitution makes no provision for restaging an election,” he says. “The laws are ill-equipped to guide us out of this sort of crisis.”
Should Trump decide to subvert the electoral process on his own, he has several avenues. He has already floated the idea of delaying the election, although with little support from fellow Republicans. He could claim a state of emergency due to the pandemic, or to whatever street protests might be going on in the fall. There would be no constitutional basis for a delay, let alone cancellation, but Trump has tried before to enact policies that run afoul of the Constitution, such as the ban on Muslims entering the country and bringing the U.S. military into play against protesters.
Even if the election goes off reasonably well, if Biden wins, Trump could declare himself the victim of a rigged vote.
It seems far-fetched that the five conservative Supreme Court Justices would support such a gambit. On the other hand, the Court voted along party lines in favor of George W. Bush over Al Gore in the 2000 election. And, more recently, the Court has seemed willing to hear out Trump’s sometimes outlandish claims and give him his way until they settle the matter, as when it granted stays of federal court rulings against Trump’s 2017 travel ban, his plan to shift military funds to the border wall, the policy of forcing asylum seekers to return to Mexico, his effort to keep the Mueller investigation under wraps and his refusal to comply with subpoenas for financial records.
The prospect of even a temporary order to delay, invalidate or otherwise alter an election would invite massive protests nationwide. Trump has already shifted his platform to emphasize a law-and-order stance that puts “radical left-wing,” Black Lives Matter and anti-police-violence protesters in the crosshairs of his supporters. He might similarly take advantage of election-delay protests to call for a forceful crackdown. Violence or vandalism from protesters on the left could help Trump sell his law-and-order pitch. Police forces, which have been beleaguered by the left, might be inclined to favor the counter-protesters. Who knows what the military would do?
Is there a sure way to avoid this and other disasters in November? Only one, says Douglas: a lopsided victory by either Biden or Trump. “That might not stop millions of armed right-wing supporters from taking to the streets,” he says. “But Trump won’t accept the humiliation of being frog-marched out of the White House by a military that knows Biden is their new commander in chief. He’ll leave on his own, and that should end it.”
Compared to armed protestors and counter-protesters spilling into the street to vent their fury over a failed or stolen election, that almost sounds like a fairy-tale ending.