Six Reasons Not to Panic About the Election

Michael Waldman and Wendy Weiser of POLITICO wrote:In his bilious debate performance last week, President Donald Trump called for vigilantes to invade polling places and “watch very carefully,” and suggested he might reject a “fraudulent election” if many vote by mail. Before the debate, he had even refused to pledge a peaceful transfer of power. Add that to ongoing challenges of vote suppression, foreign interference, and an election system strained by the pandemic. Fears are rising that the election “could break America,” as a widely discussed article in The Atlantic recently put it. And the president’s illness hasn’t reduced the panic many are feeling.

Every day we work on the policies and law underpinning our elections. We regularly point out the flaws in our electoral system. They are real. But when it comes to stealing a national election, let’s all take a deep breath.

To be sure, Trump is doing all he can to undermine the vote and foment chaos. All who care about our democracy should be angry — and ready. It’s terrifying to think about an Election Day full of chaos and disinformation, followed by false claims of victory and attempts to swap out electors. But there are strong safeguards in place, and many ways for the system to block an illegitimate power grab. There may be a plot against America, but a lot of people would have to break laws for the plot to succeed. An all-out attack can work only if all the institutional checks fail and the American people let it happen. It’s worth mapping out what those bulwarks are.

First, presidents don’t run elections, states do

And most of them have quietly, steadily improved the machinery for this highly unusual election. Most have expanded access to absentee voting, in red and blue states, and have strengthened defenses against cyberattacks and other system failures. And most are making critical adjustments to avoid the problems seen in the primaries. In the past two weeks courts ruled in favor of voters’ rights in Arizona, Georgia, Michigan, Nevada, Ohio, Pennsylvania, Texas, Wisconsin, and beyond. Businesses have stepped up, too, providing equipment, funds, pollworkers, and even sports arenas as polling places. With rare exceptions, election officials from both parties have rallied. These issues are typically less partisan the further away you get from cable news greenrooms and the White House Twitter feed.

Second, it’s really hard to steal an election.

The nightmare scenarios require outlandish moves by multiple stakeholders all at once to undermine the vote and seize power. More checks are in place than many realize.

Some fear that federal law enforcement could swoop into cities on the pretext of protecting public property or quelling riots, to intimidate voters or seize ballots. Trump threatened, “We’re going to have sheriffs and we’re going to have law enforcement and we’re going to have, hopefully, U.S. attorneys” watching the polls. Alarming, but also flatly illegal. Under a federal statute on the books since 1948, anyone who sends “any [federal] troops or armed men at any place where a general or special election is held” faces five years in prison. That would apply to ICE or other DHS agents, prison guards, or any of the other forces that Trump used for dramatic effect this past summer against protesters demonstrating against police brutality. Even if federal forces can lawfully be sent to protect federal facilities like courthouses (an issue under litigation in Portland), it is illegal to extend that to polling places.

Third, even with presidential encouragement, voter intimidation is illegal.

Trump made clear in the debate that he wanted his supporters to go to polls to cause trouble for other voters. That’s against the law, federal and state. So is a purposeful attempt to prevent eligible Americans from voting — whether by public officials or private vigilantes. State and local officials have ample power to enforce the law. A federal criminal statute makes clear that “whoever intimidates, threatens, coerces, or attempts to intimidate” someone’s voting faces a year in prison. State and local laws are even stronger. And election administrators have processes to stop problems when they arise.

Fourth, public expectations of how long the vote might take have already shifted.

Trump appears to be betting on the idea that only votes cast on Election Day should count. He assumes a “red mirage” or “blue shift,” when vote-by-mail ballots counted later pile up majorities for Democrats. Laws in those states that aren’t accustomed to widespread absentee voting make those scenarios more likely. In Pennsylvania and Wisconsin, for example, officials can’t start processing absentee ballots until after the polls close, and it’s increasingly likely that we will not know who won on election night.

But a recent poll showed that two-thirds of voters do not expect results on election night, making it harder for Trump to incite outrage over a wait. And there may not even be a long wait, as most states begin to process absentee ballots long before Election Day. Michigan’s legislature just voted to let officials start the counting process a day early. By Election Day, it should be even more widely understood that this year, it will just take longer to count. That’s not a sign of chaos or misconduct, but that officials are being careful.

Fifth, the system is more prepared than you might think for challenges to vote counting.

Once ballots are cast, could Trump or others disrupt the counting? No doubt the president wants to. Expect challenges, lawsuits, and roaring press conferences. But election officials and courts are used to that, even if the volume is higher this year. The Constitution places a strong thumb on the scale toward counting every vote, as do most state laws, if fairly read. And many of the most contentious counting issues — like whether to count ballots mailed before but received after Election Day — are being resolved in pre-election litigation. Attorney General William Barr may try to butt in, but there is no legitimate role for the Department of Justice during an election contest.

Sixth, even the Electoral College has (a bit) less uncertainty than advertised.

The Atlantic article jarred when it quoted a Pennsylvania legislator suggesting that Republicans might simply proclaim Trump’s supporters to be the slate of electors. Such a move would be outrageous, of course, and unless the state’s popular election fails to produce a result (a very high bar!), it would be clearly unconstitutional, little more than a publicity stunt. The Supreme Court in Bush v. Gore made clear that once a state sets a way to elect a president, it can’t just change its methods after the votes are cast. Every state by law gives its electors to whoever wins the popular vote. This past June the Court reiterated that “legislatures no longer play a role” in selecting presidential electors.

The electoral count is governed by an obscure federal statute passed in 1887. But while creaky and rarely invoked, the law does offer clear guidance on some issues. As the National Task Force on Election Crises, a bipartisan group of experts, explained, it is “the executive” of each state — either the governor or the secretary of state, depending on state law — that certifies the appointment of electors. A legislature that tried to appoint its own slate of electors to replace a duly certified slate before the Dec. 8 deadline would almost certainly lose. Things get murkier if the popular vote remains in genuine dispute as the Electoral College voting date of Dec. 14 approaches, but the overall thrust of the law favors giving the electoral votes to the state’s popular vote winner. And other state-level institutional checks can thwart mischief.

One more thing:

The Vice President doesn’t decide which electors to count. Mike Pence will preside over the joint session that counts electoral votes. Does that give him the power to decide, even if he’s been defeated? No. The vice president should play a ministerial role, and Congress’s role is constrained. They can’t count electors not lawfully sent by states. And the laws of every state require the electors to be chosen by popular vote, as certified by the designated state official.

Yes, the 2020 election has veered into unmapped territory. We should be outraged by Trump’s disdain for basic rules and democratic values. But mostly it’s been bluster. The president is not all-powerful, and alarmist obsession can perversely make it all seem plausible and even normal, perhaps strengthening Trump’s hand.

Our institutions and laws are strong enough to prevent a stolen election. Voters decide. If any candidate tries a coup, we will be the first on the barricades. In the meantime, we should focus on making sure all Americans vote and then fight to have all their votes counted.