For over 200 years the United States has had regular federal elections. In times of war, in times of economic hardship, there has been regular voting for presidents and members of Congress. This phenomenon – and it is a phenomenon – is unique. No other country can boast of having similar peaceful transfers of power over such a long period of time. If the heart of a democracy is voting and normal elections, the United States can be seen as a shining example of how the process should work, although there have been elections with dubious or contested results as my historian friend Matthew Stevenson loves to remind me.
As we approach this year’s November 3 election date, a date established by law “as the Tuesday next after the first Monday in the month of November,” what can we expect?
What does the law mean to President Trump? Examples of his going beyond the law are also long. We all know that part of his appeal to his base is his image as a rogue actor. Like many heroes in the Old West, Trump sees himself as above the law. He is the lone cowboy who acts according to his perception of what is right and wrong; he is a law unto himself. And, for the moment, he has been successful. The impeachment trial couldn’t slow him down; nor could members of his party. His base of supporters– roughly 40% of voters – continue to follow his iconoclastic moods.
Which brings us back to the November 3 election. Will it be a “normal” election or will it follow Trump’s creative destruction in establishing a “new normal”? We know that Trump despises losers. We also know that if he loses the presidency, he could be pursued by various prosecutors. Cyrus Vance Jr, Manhattan District Attorney, is more than prepared to go after citizen Trump.
There are people anticipating some Trumpian hanky-panky during the election. A bipartisan group called the Transition Integrity Project has had exercises (“war games” according to Times columnist Michelle Goldberg) anticipating what could go wrong. In a report, they wrote “We assess with a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape.”
There is speculation that Trump may try to postpone the election. This he cannot do. The dates are fixed in stone (the Constitution). For the moment, there are intimations of what Trump might also try to do. Already, he has attacked the United States Postal Service and raised questions about voting by mail. The head of the postal service, Louis DeJoy, an important donor to Trump’s campaign, has begun defunding the service which could mean that ballots would neither reach people on time nor be counted before the deadline.
The second major worry involves the Electoral College, an institution that does not appear in the Constitution. Professor Lawrence Douglas of Amherst College has written an insightful account of what may happen: Will He Go?: Trump and the Looming Election Meltdown in 2020. Douglas highlights all the ambiguities of a system that is antiquated as well as constitutionally unclear. Not all states have the same system of choosing electors and the courts have differed on interpreting how the electors are chosen and how they can vote. Suffice it to say that already twice in this century the person who won most of the popular votes was not elected president – Al Gore had 500,000 more votes than George W. Bush in 2000 and Hillary Clinton had three million more votes than Donald Trump in 2016. (Douglas points out that John Kerry could have won in 2004 with fewer votes than Bush.)
Could it be that no candidate will be declared victorious on November 4? Probably. There is nothing in the Constitution that says that the winner must be declared the day after the vote. Could it be that courts will have to work quickly to decide which votes count as they did in 2000? The law says that state electors vote in the state’s capital on the first Monday after the second Wednesday of December. (This year that would be December 14.) Congress counts the results in the first week of January. The elected president and vice president are inaugurated on January 20. That is the law.
Donald Trump has shown little respect for the law. So, the electoral process could get very messy. And, if the electoral process functions as it should but Trump loses, as Professor Douglas asks: Will he go?
Donald Trump loves chaos. He thrives by doing the unexpected. His strength is creating instability. Trump has upended so many traditions that it would not be surprising if the upcoming election is turned topsy-turvy as well. The fact that there is even a Transition Integrity Project bears witness to that. But can the Project members, former government officials, political professionals, lawyers and journalists anticipate what Trump will do?
And finally, to answer Professor Douglas’ question from a knowledgeable source: When asked if the president would accept the results of the election if he lost, his spokesperson, Kayleigh McEnany, responded that he might well challenge the results of the election: “The President has always said he’ll see what happens and make a determination in the aftermath.” A simple warning? Hang on. Here we go.