In the first presidential debate, President Trump was asked if he would refrain from declaring victory until the election has been independently certified. He refused to make that commitment.
Atlantic writer Barton Gellman was not surprised.
“That’s a man who won’t leave,” Gellman says. “There are many aspects of his past behavior and, frankly, his pathology that lead me to think this is an immutable decision on his part.”
Gellman writes about the 2020 presidential election — and how he thinks it could trigger a constitutional crisis — in his latest article for the Atlantic. He notes that typically elections are ended when one candidate concedes to the other. It’s a system, he says, that “presumes good behavior and presumes that a rational and well-meaning candidate will accept reality when it comes.”
But Gellman does not trust a scenario that relies upon good faith from the president: “Trump is making as absolutely plain as he can that he will fight the mail vote, that he will try to get the vote count stopped, and that he will not accept any result that is not a victory for him.”
At a rally over the weekend, Trump mocked the media for raising alarms about his earlier answer to a question about a peaceful transfer of power after the election. “Then they say, ‘He doesn’t want to turn over government’ — of course I do. But it’s got to be a fair election,” he said, before repeating unfounded claims about widespread voter fraud.
Gellman says if the election is close, it could take weeks to determine the results in key battleground states, as mail-in ballots are scrutinized for technical flaws and counted. If the president cries fraud and his supporters take to the streets, state legislatures could resolve to set aside the popular vote in their states and choose their own partisan delegations to the Electoral College.
While officials are preparing for a worst-case scenario, many believe the casting and counting of ballots will proceed normally, albeit more slowly, on election night.
“This is not going to be a normal election,” Gellman says. “I think that preserving its legitimacy is going to take extra effort this year. Democrats are certainly aware of Trump’s proclivities. They’re certainly concerned about possibilities that he will cheat or try to hang on to power by means other than winning the most votes and counting all the votes. Trump has made it absolutely crystal clear that he does not want all the votes to be counted.”
On a common misconception regarding Trump’s threat to refuse to concede
It’s a subtle difference, but an important one: The usual way people say it is that they fear that Trump will refuse to leave the White House if he loses. He’ll refuse to give up the reins of power. And Joe Biden says, well, that’s an easy one. If he loses and he stays there, someone will evict him. That will most likely be the Secret Service or the military. They’ll say, “Excuse me, sir, but your lease has expired on this office. It’s 12:01 on Jan. 20, and we’re going to now assist you in departing.” That works if there is a clear winner or loser.
The greater danger is that Trump is capable using the powers of the presidency, and the powers of his invincible decision not to concede, to raise doubt whether a winner or loser has yet been established — that he can prevent the achievement of a decisive outcome, which is a far greater risk to the American system.
On the fact that mail-in ballots skew in favor of Democratic candidates
It is true that for about 20 years now, the so-called “overtime count,” which is the count of the late reporting precincts, the provisional ballots and the mail-in or absentee ballots, that overtime count has shifted towards Democrats for reasons that are not entirely explained by the literature, but are technical ones. … Trump has accentuated that this year by signaling to Republicans that he’s against mail-in ballots and that they’re corrupt, and by signaling to Republicans as well that the COVID pandemic is not as serious as the scientists say it is. And so Democrats, concerned about their health, are intending to use mail ballots at much higher rates than Republicans are, because Republicans have been pushed away deliberately by Trump from the mail-in ballots. So that now a mail-in ballot by proxy is likelier to be a Democratic ballot, because of underlying circumstances and because of Trump’s shaping of the electorate. So his lawyers will know that if they are stopping the count of mail ballots, they are, on balance, almost certainly helping the president.
On how some states have to wait to process mail-in ballots until Election Day
Some [states] say Election Day morning. Some [state laws] even say … they can’t start until Election Day evening. And it has been part of the Republican litigation strategy in 41 states over the past year to prevent state law from allowing more time in advance of the election to open the early arriving ballots.
So the Trump campaign has actually helped make it less likely that those ballots will be counted on time on election night, because if they said you could start two weeks earlier … if the administrators could do all the verification and simply leave them ready to feed into the machine for counting, they could do that as they came in, as they can, for example, in Florida, because of state law there. … The Florida vote is expected to be pretty well-known by the end of election night, because Florida will have pre-sorted all the mail-in ballots. That’s what state law says there. But the Trump campaign has opposed that method when other states have proposed to change it right now.
On how representatives might go about challenging mail-in ballots
Both Democrats and Republicans are allowed to have a representative at the time that these ballots are processed. The Republican strategy is going to be to challenge each and every mail in-ballot if they can find any reason at all to do so. And so the administrator will pull out one ballot from this, this pile of hundreds of thousands in any given state, or millions given the state, and they’ll do this by county, I suppose. And the Republican representative will say “Object. Signature doesn’t match.” And then everyone will sort of squint over the squiggly lines [and], without the benefit of any expert training, have to try to decide is that signature a good match or not a good match? “That postmark is illegible. You can’t prove that it was mailed in time.” So I think you may see postmarks or missing postmarks or poorly printed postmarks becoming the new sort of hanging chads of this election. That’s the way the vote-by-vote challenge is going to go.
On both parties being ready for litigation
The two sides have each hired hundreds of lawyers and recruited thousands of lawyers as volunteers for what they believe is going to be a multi-state cluster of litigation on the scale that took place in Florida in 2000, which was monumental. That was one state. The expectation is that there could be several states on which the result hinges and the vote is close, and the margin of litigation is sufficient that both sides are going to pour in all the effort they can in litigating the rules and the vote count.
On the Republican side being free of court supervision for the first time since 1981
This is the first time in 40 years that we’re going to have a presidential election without a court supervising the Republican “ballot security operations” on Election Day. Republicans were caught doing all kinds of voter suppression and intimidation in 1981, and a lawsuit against the Republican National Committee placed the RNC under a consent decree, a court order, that forbade it to use many methods of voter purging, voter intimidation. The Republicans had rounded up large numbers of law enforcement and former military people wearing armbands and guns, carrying radios, confronting voters and demanding evidence of their right to vote, warning them that it’s a felony to vote when you’re not eligible in the correct neighborhood, confronting poll workers who tried to help voters as they’re legally allowed to do. This was in New Jersey, but it was a nationwide consent decree. And the methods that had been used in New Jersey were widely known methods and had been used for decades to suppress, in particular, the votes of people of color in this country. …
And there was a consent decree here that lasted for decades, and it expired in 2018. And this time the Election Day operations of the Republican side are going to be free of court supervision. They’re going to be able to decide for themselves how they operate that day, and maybe they’ll be sued after the fact, but it will be too late to make much difference in terms of the outcome. The Trump campaign is recruiting what it’s calling “an army for Trump.” The president’s son [Donald Trump Jr.] has gone on television calling for “all able-bodied men and women” — Why able-bodied? What kind of physical confrontation does he have in mind at the polls? — “all able-bodied men and women to stop the election from being stolen by Democrats.”
On some of the other ways Trump might contest results
I think there’s reasonable concern that when the president and his son are using the rhetoric they’re using about the need to secure an election against people trying to steal it, when the president has supporters who are prepared to carry weapons and to appoint themselves into militia like roles, there’s a significant concern that there will be violence or physical disorder at the polls on election night and afterward during the canvass.
Here we get purely into the realm of speculation, but I think with a president like Trump who has shown a complete disregard for boundaries of law and norms, we have to worry also about what he might do that no one’s done before. He’s the incumbent president. He’s the chief law enforcement officer of the country under the Constitution. He’s the commander in chief of the armed services. What is he prepared to do in terms of deployment of U.S. forces? Is he prepared to order postal inspectors to seize and impound mail-in ballots on grounds that they have been forged or that there’s been an investigation into foreign fraud and therefore all those ballots must be seized and frozen in place and not counted? Is he prepared to send in U.S. marshals or justice or DHS officials from other sub agencies to secure the peace, to secure the ballots, to preserve evidence, ostensibly. There are a lot of ways this could go very badly. And I think that no president has done it before. There are laws that would seem to constrain him from doing that. But I have little doubt that Bill Barr, the attorney general, is capable of finding executive authority for the president to do whatever he likes on Election Day. The question to me is, really, whether he thinks he can get away with it.
On what we can do to prepare for Election Day
I think because the mail-in ballots are going to be so much the subject of litigation, I’ve changed my own mind personally on how I’m going to vote. I’m going to vote in person because I think the worst case is that the president is ahead on election night and that a fuller count of the vote over coming days and weeks shows that Biden wins. That’s a very bad case because you have the possibility of weeks of serious disturbance in between.
I think anyone who can volunteer to be a poll worker should do so. I think if you know anyone who is open to reason, you should make sure they know that it’s normal and natural and lawful and proper for the count to continue to change after election night and that it’s sure to do so this time.
And then think about where you stand in relation to the election. If you were a mayor, you might want to think about how you deploy your police on Election Day to prevent the intervention of outsiders with bad intent. If you are a law enforcement officer, think about how the primacy of your mission to protect the vote, the most fundamental right we have in this country. If you’re a member of the military chain of command, you should pause to remember that you have an obligation to disobey unlawful orders and think about ways in which you might be misused during the course of an election.
If you’re a civil servant, we need you more than ever, I think, to say “no” to the wrong thing, to do the right thing, when you’re asked to do the wrong thing. You go down the list. There are a lot of people who have an influence over, broadly speaking, this moment of transition in this country between one presidential administration and another. And it may be a second term for Trump. I certainly don’t rule out that he could be re-elected legitimately. But we have to make sure that the vote is counted, that all the votes are counted and that the election is decided by the voters and not by some other machinations.
Lauren Krenzel and Seth Kelley produced and edited this interview for broadcast. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the Web.