Tyranny and Complacency
Historian Timothy Snyder’s 2019 book, On Tyranny: Twenty Lessons from the Twentieth Century, offers numerous insights on preventing and battling authoritarianism. But the dominant thread running through the volume is this: Don’t be complacent. Don’t despair. And be prepared.
That’s the point of this post. While Joe Biden could sweep to a landslide – a reassuring possibility to which I return below – Election Day could instead unleash a lengthy legal, political and media fight comprising state-by-state trench warfare.
Rather than despair over that possibility, we should prepare for it. The first step is to understand what looms.
I’ll accordingly summarize here how Donald Trump, his allies and appointees could steal the election.
In fact, they’ve already started to try.
The Playbook
The roots of the theft predate Trump. As detailed in a 2019 documentary, Rigged: The Voter Suppression Playbook, the Republican Party’s systematic attempt to shrink the Democratic vote, rather than expand its own, dates back over a decade.
The film explains how Republican suppression efforts target pro-Democratic elements of the electorate, such as minorities, young people and urban residents. The playbook includes state-specific drives to purge voter rolls, limit opportunities to vote early, impose highly restrictive voter ID requirements, practice extreme gerrymandering and get the Supreme Court to gut voter rights.
But if Rigged portrays a playbook, Republicans have converted it into a graphic novel of numerous egregious abuses in the run-up to this Tuesday.
To pick just one notable example: Florida’s Republican governor and legislature adopted a law last year that eviscerated a 2018 state constitutional amendment, approved via referendum by nearly two-thirds of Floridians, that had granted approximately 800,000 ex-felons the right to vote. Given that the majority of them were likely Democratic supporters and that Trump beat Hillary Clinton there by only 113,000 votes in 2016, that move could help swing the state’s 29 electoral votes Trump’s way this year.
From Unraveling Rules to Invalidating Ballots
As big as the Florida abuse was, we ain’t seen nothing yet. Much of the Republican fight for the past year has been about influencing election rules. Now they’re shifting gears, toward a massive effort to invalidate Democratic ballots, starting on Election Day.
The effort includes a Nevada lawsuit aiming to obtain images of all voter registration signatures in a populous, Democratic-leaning country, potentially to press for rejection of those that do not sufficiently match signed ballots. If you think this can’t pose a serious problem, think about how your signature might have changed since you registered to vote or if you can even recall how it looked back then.
The effort also involves federal court rulings that require Minnesota and Pennsylvania to set aside all mail ballots that arrive after Election Day, keeping them separate from all other ballots. The point is to preserve the possibility of invalidating them. This is despite the two states’ rules allowing the counting of such late mail arrivals for several days after November 3.
Similar suits are already under way or planned in other swing states. Election Day will doubtless trigger many more.
Red Mirage, Blue Shift
The biggest Republican Party prize after November 3 will likely be mail and the drop box ballots. (I’ll lump the two together here under the rubric of mail voting). They are subject to more stringent requirements than in-person voting.
Some states have archaic and arcane rules regarding witness signatures, exact matches for voters’ signatures, envelopes and postmarks. Pennsylvania, for example, requires that mail ballots be returned in envelopes within envelopes.
Many of the tens of millions of Americans voting by mail this year have never done so before. They are skewing Democratic because of Covid concerns and Trump convincing Republicans that mail voting is invalid. There’s ample room for new mail voters in particular to make minor mistakes that Republican attorneys could exploit if rules are rigidly applied.
Certain toss-up states’ laws bar them from starting to count mail votes until November 2 (Michigan) or 3 (Pennsylvania and Wisconsin). Ironically, we could see many of the early, more Democratic votes there counted last, many or most of them after Election Day. Here’s a 50-state breakdown of the procedures in play.
The Election Day upshot could thus be a “red mirage”: The tallies that day will tilt red (Republican) in many states, including some crucial ones that could determine the eventual electoral college outcome.
Over subsequent days or weeks, however, we’ll see a “blue shift” as more Democratic votes are counted and – unless Republican litigation blocks the counts – key swing states possibly swing Biden’s way.
A Method to His Madness: It’s Not the Votes Cast, but the Votes Counted
Trump’s attacks on mail votes have at times seemed nonsensical, given that he votes by mail himself and that discouraging Republicans from doing so could dampen their turn-out.
But there’s a method to his madness. It especially makes sense if his aim is to steal the election.
He’s already claiming that Election Night results, which could indicate he’s in the lead (because of the red mirage), will constitute the final outcome. And in typical Trumpian fashion, he’s also charging that any (perfectly valid) votes counted later are bogus. The point is to con a good chunk of the nation into believing he’s won.
This could take place against an Election Day backdrop of cyberattacks by Russian or other outside forces, Trump-inspired voter intimidation and other disruptions we might not even anticipate. The subsequent weeks could prove even worse in terms of civil unrest and violence, perhaps providing Attorney General William Barr an excuse to intervene in some manner. Chaos and division are Trump’s friends.
On the legal front, Republican attorneys will complement his demagoguery through their drive to exclude Democratic votes.
Thus, if 50,000 more people cast ballots for Biden than Trump in, say, Pennsylvania, that edge will prove illusory if the Republicans can persuade election officials or judges to prevent 51,000 pro-Joe votes from being counted. It won’t be the votes cast that count. It will be those included in the final count.
The attorneys conceivably could successfully challenge many more in a given state. Even with much smaller turn-outs, far fewer mail ballots and far less at stake, officials in 23 states rejected 534,000 mail votes during party primaries this year. Lawsuits could generate far more rejections in the general election.
The Elephant in the Room
The litigation outcomes could hinge on who appointed the judges hearing the cases. Democratic presidents’ appointees generally rule in favor of expanding voting rights. Republican appointees slightly tend to rule against them – except for those chosen by Trump. In 28 out of 39 voting rights cases this year, Trump-appointed judges have favored restrictive rules on the trial level; on the appellate level, the figure is 21 out of 25.
The real elephant in the room, though, is the Supreme Court and its ultra-conservative 6-3 majority. The Court’s atrocious voting rights record under Chief Justice John Roberts pre-dates the addition of Trump’s three even more right-wing appointees. This does not bode well for Biden if any crucial cases reach the Court.
Now, on practically the eve of the election two Trump justices, Neil Gorsuch and Brett Kavanagh, recently articulated an atrociously trailblazing rationale for undercutting voting rights even more. Breaking with precedent, they prioritize state legislatures rather than state judges and other officials as the ultimate authorities on state election laws.
If adopted by the Court’s majority, which could be imminent, the justices’ dubious reasoning would reverse a history of the Supreme Court deferring to state supreme courts in interpreting state law. It could also mean that Republican-controlled legislatures’ restrictive voting statutes and actions in key toss-up states (such as North Carolina, Michigan, Pennsylvania or Wisconsin) would be upheld in election disputes, tilting the contest Trump’s way.
Should the Court go this route, the result would be ostensibly “legal.” Yet the election would still be stolen.
But…
It could all end happily.
Biden could win by enough of a landslide that disputes over a given state or states could prove beside the point.
Or he could convincingly win Florida, Georgia or North Carolina, swing states whose vote tallies might be substantially completed on Election Day. That could spur psychological and media momentum in his favor.
Or enough people could take to the streets, despite potentially armed opposition, and enough media and political pressure could be generated to help persuade key Republican politicians or the Supreme Court that overturning a Biden win is not in their own interests.
Or, as improbable as I believe it to be that Trump will simply fold, since he could face disgrace, financial ruin and prison if he loses, he could retreat in light of likely defeat and try to cut some kind of deal.
Or…
Things could get even crazier, involving state legislatures, Congress, the courts and our cockamamie electoral college system, which is even wackier than you think.
I’ll get to that this week, in Part Two of this discussion, along with sketching steps that can be taken to press for a fair result. Unless…
Should the next few days bring such good Biden news that posting Part Two would be beside the point, I’ll gladly pop some bubbly instead.
I hope you pop some bubbly!!!