Here we are, after Labor Day, in the final slog of the election season, after nearly four exhausting years of the Trump administration.
There are plenty of reasons to be so. President Trump has openly mulled canceling the election, he’s threatened to send federal troops to polling stations, he’s stated he doesn’t want to fund the post office because he thinks mail-in voting favors Democrats, and most recently he’s encouraged his supporters to vote twice.
Some of our angst, however, is misplaced. The military does not want to get involved in domestic politics. Trump’s blatant manipulation of the post office has been met with fierce blowback. And voting twice is illegal, and so is soliciting people to vote twice.
Trump simply does not have the power to cancel the presidential election outright, and if there’s no election, at noon on Jan. 20, he simply stops being president. (And if he’s still in the White House, he’s trespassing).
An interesting side note: If no election is held, not only does Trump cease being president at noon Jan. 20, Mike Pence also stops being vice president. According to the order of presidential succession, the next in line for president would be Democratic House Speaker Nancy Pelosi, which would be particularly galling to Trump—but if there were also no congressional elections, then no House members would have been sworn in. That takes us to No. 4 on the list, the president pro tempore of the Senate, who is defined by statute as the second-most powerful sitting senator, and canceling the November election entirely would also mean all 35 senators who were up for reelection also would not be seated. So the rump Senate would be split between 35 Democrats and 30 Republicans, with the most senior Democratic senator being Patrick Leahy of Vermont, and the new No. 2 being Dianne Feinstein of California. (Chuck Schumer of New York might be chosen again as majority leader, which would make Leahy first in line for the president pro tempore slot, and for president of the United States.) This is an extreme scenario, but it shows that canceling the election will not benefit Trump in any reasonable manner, even if he were able to pull it off.
But there are vulnerabilities within our system of electing a president, and you can put money that Trump is going to try to exploit them.
To date, Trump’s most blatant attempt has been trying to undercut the post office—some have estimated that up to 80 million voters may attempt to cast their ballot by mail in November. And one should never discount other tried-and-true methods of vote suppression—Georgia’s voter roll purges in late 2019, for example, wrongly purged nearly 200,000 voters, or an error rate of 63.3%, according to the ACLU of Georgia. Or the decision on Sept. 11 by the U.S. Court of Appeals for the 11th Circuit that effectively codified a Florida poll tax against people who’d been convicted of felonies, disenfranchising them again after the public had previously voted to restore their voting rights.
But Trump and his minions can game the system in other, less obvious ways.
We already know that the Electoral College is a strong and at times decisive anti-democratic feature of electing a president. Twice in the past two decades, a candidate won the presidency while losing the popular vote. What matters is getting 270 electoral votes.
And yet our 18th century electoral system isn’t as straightforward as all that. Electing a U.S. president is an arcane art practiced only by the acolytes working within the political parties and conventions, little understood by, and—until now—not affecting the average voter. It’s not a system whereby the electoral votes are tallied on election night and a state goes blue or red, and we’re done, even though that’s what we’ve come to expect.
Consider the electoral calendar, which spells out the dates by which states must resolve controversies in the apportionment of electors, the governors send certificates to the National Archivist, and so on. (Here’s the full list of steps necessary to elect a president.) Each date is a deadline, and also an opening into which a campaign lawyer can insert a monkey wrench to cause havoc.
The key date is Dec. 14, when the electors (appointed by their parties) meet in their respective states to vote for president and vice president on separate ballots. This also was the deadline the Supreme Court enforced in the 2000 Bush v. Gore decision that shut down the Florida recount and gave the election to President George W. Bush, a legal recognition that Dec. 14 (specifically, the “Monday after the second Wednesday in December”) is the real election day.
But which slate of electoral votes is sent off to the National Archivist is left to the states. Congress’ role is to certify them, and the assumption is that the states’ votes are accurate. The Guardian in July outlined the nightmare scenario: Trump loses the popular vote but is within one state of an Electoral College victory, and puts political pressure on Republican-led state legislatures in key swing states to claim fraud and “irregularities” and award Republican electors, even as the states’ popular votes go to former Vice President Joe Biden.
Those electoral votes are transmitted to the newly sworn-in Congress on Jan. 3, and they must be counted by Jan. 6, giving Congress three days to resolve any discrepancies. Given the extreme partisanship we’ve seen recently, a likely outcome is the disputed electoral votes simply would not be counted.
And if the total electoral count minus the disputed states doesn’t give either candidate the required 270-vote majority, it’s up to the U.S. House of Representatives to vote—in which each state receives one vote. The winning threshold is 26 votes, and as of September 2020, 26 state delegations are majority Republican (although some by a single vote), and Michigan is tied 7-7. If the House deadlocks, then it goes to the Senate, with each senator receiving one vote.
If you think that scenario is too extreme to occur, consider that it already has, in the 1876 election of Rutherford B. Hayes. Hayes and the Republican Party essentially flipped three Southern states through outright fraud at the polls and getting their allies in those states to submit rival slates of electors. The compromise Congress worked out gave Hayes the presidency, but in exchange for an end to Reconstruction, ushering in a new era of racial discrimination and terror in the South.
And for anyone who says, “Oh, they’d never do that…,” consider we’re in an era when the incumbent, with all of the built-in advantages that comes with it, has shown himself to be utterly unconstrained by ethics, past norms, or—with the aid of an enabling attorney general—even federal laws that prohibit using the apparatus of government for political purposes—such as staging parts of the Republican National Convention at the White House. There literally is nothing Trump won’t do to stay in power, even if it means cheating in the most blatant and illegal manner possible.
So What Can We Do?
The short answer is “vote,” but the question then becomes “how?” And the answer is “as soon as it’s humanly possible.”
The best hedge against all the problems we can anticipate is to request a ballot as early as possible and vote as early as possible. Whether it’s an absentee ballot that can be dropped off at a local elections office, or an in-person request made at an elections office for a ballot that can be filled out on the spot, the idea is to get the ballots in quickly, and to ensure the number of steps in which it can be delayed or mishandled is minimized.
Plan ahead, confirm your registration, and look up your state’s elections rules. Many Republican-led states have passed laws since the last presidential election that purge voters from the rolls or otherwise make it harder to cast a vote. Election laws vary considerably by state (and even by county). For example, mail-in or absentee ballots in Pennsylvania can be returned at any time between now and 8 p.m. on Election Day, while in Oklahoma, the in-person early voting window lasts from 8 a.m.-6 p.m. Oct. 29-30 and 9 a.m.-2 p.m. Oct. 31, or 25 hours total.
Early in-person voting starts the week of Sept. 14 in Michigan, Minnesota, New Jersey, Pennsylvania, South Dakota, Virginia, and Wyoming.
Meanwhile, Trump’s attacks on mail-in voting have raised legitimate questions as to whether or not the post office will be able to both send out the expected deluge of requested absentee ballots and deliver completed ballots back to state elections offices. (Many states require mail-in ballots to arrive by Election Day, not be just postmarked by then.)
Five states conduct all their elections entirely by mail: Colorado, Hawai’i, Oregon, Utah, and Washington. (And we also know we don’t have one single Election Day, but an “election window” that sometimes extends weeks past Election Day as the mail-in ballots are tallied.) Contrary to the Trump administration’s messaging, mail-in voting fraud has been practically nonexistent, mailed ballots can’t be hacked by scary foreigners, and the practice doesn’t favor either party (although late-arriving ballots often lead to a “blue shift,” which may lead Trump to try to prevent full counts of absentee ballots). But combined with the expected increase in mail during the election, plus the administration’s attempts to hamstring the post office (and the administration’s stated intention to find other ways to gum up the system), your ballot may not be the thing to trust to the postal carriers this year. (Especially when stuff like this happens.) Some all-mail-election states, such as Washington, do have drop boxes and should be considered.
It’s a hard judgment call to make when the safest procedure for ensuring your vote will count—as close to in-person as possible—is at odds with the safest way to vote during a deadly pandemic—via mail—whose death toll will likely surpass 250,000 by Election Day.
In the meantime, perhaps go easy on unnecessary deliveries during election season? Comedian Bill Maher used his Aug. 28 show to promote a #FreeUpTheMail movement to cut down on all the ordering and shipping during the election season, to give ballots a greater chance of being received in time, especially for those voters who have no choice but to vote by mail.
It’s never been a good idea to take voting for granted. That’s especially true this year, when the very foundations of our democracy are on the ballot.
And while the post office is in financial straits, a few months of less intense usage isn’t going to be the death knell. But many Republicans have long advocated shutting down the post office and privatizing mail delivery, and their reelection just might be that final straw.
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