The principal lesson of the COVID pandemic is one of preparedness. We knew that a pandemic would happen, how it would happen, and exactly what we needed to do to be prepared. Our failure to do so resulted from the usual stew of human frailties: denial, wishful thinking, avarice and failure of leadership.
We now face another potentially devastating threat, which we must not again ignore until it is too late. In 2016 Trump refused to say that he would accept the election results if he lost. 2020 will be no different. Whenever he fails or loses, it is because the system is “rigged” against him. And he is now, almost daily, laying the groundwork to contest this November’s results. It centers around a groundless but powerful meme: voting by mail produces massive fraud. All experts agree it is untrue. No matter. With the narrative pushed relentlessly out to the base by Fox News, 76% of Republicans now say in polls that voting by mail leads to fraud.
So what are we doing now to prepare for the risk that the 2020 election will result in chaos, violence, and even the end of America’s 223-year record of peaceful transfers of power? With apologies for ruining your day, here is the nightmare scenario:
Assuming that election night returns show Trump losing, he angrily rejects this result, asserts (with no basis) massive fraud, claiming the margin of difference is due to millions of illegal immigrants and a democrat conspiracy revolving around absentee and mail-in ballots. He refuses to concede and launches a blizzard of litigation. With no wiser heads in the White House to stop him, in the next 24 hours, his tweets awaken every flavor of far right paranoia: if the democrats are permitted to steal the election they will take your guns, ban your religion, end your freedom, and preside over a chaotic collapse of law and order.
It is a self-fulfilling prophecy. Trump’s base takes to the streets, invades state houses, and threatens judges. They are met by massive protests in opposition. The streets erupt in violent chaos. Trump militarizes the response, telling the country that only he can preserve law and order.
Although many judges quickly resolve their cases, scores of red state judges require recounts, extend voting, and order other remedies that delay the ability of state officials to certify the results. On December 14, when electors meet in each state, scores of litigations remain unresolved and some elector meetings are enjoined from proceeding. In some swing states won by Biden, such as Michigan, a hyper-partisan GOP legislature simply “finds” that fraud has occurred, throws out the results from contested urban and minority precincts, and votes to certify the electors pledged to Trump. On January 6, when the elector results are due in the Senate, enough state certifications are absent or contested to deny Biden 270 electoral votes. The constitution gives Congress the power to count electoral votes and determine the result. Outraged, the Democrat-controlled House determines that Biden has won. The Senate, still controlled by the GOP, either determines that Trump is the winner or votes to delay deciding.
The President’s term expires at noon on January 20 and, pursuant to the Presidential Succession Act, if the office becomes vacant and a new president has not been inaugurated, the Speaker of the House becomes acting president.
As of January 19, the Supreme Court has issued a series of contradictory and inconclusive 5-4 rulings. Other cases have yet to reach the Supreme Court. Having allowed the violence to peak to levels that have terrified ordinary citizens, Trump has declared martial law, pledging to restore law and order. The move has widespread support.
That night, the President addresses the nation, this time “revealing” a vast conspiracy by the “deep state,” aided by the Chinese and other hostile governments, to subvert the constitution and deny him the office to which he was elected. Attorney General Barr, standing at his side, is “gravely concerned” and has launched a full investigation. Trump says he has taken an oath to defend the constitution and this is what he will do. He notes that if all the still-contested state elector certifications break his way, he will have won the electoral vote. Let the process work, he argues. Moreover, it is a time of national crisis, and he will not abandon the nation to chaos and violence. All eight members of the Joint Chiefs were ordered to stand behind him when giving this address. Two agreed and stood at his side. The other six refused and were fired.
The next day, in a ceremony on the steps of the Capitol, Nancy Pelosi, as Speaker of the House, is sworn in by Justice Ginsburg as acting president pursuant to the 1947 Presidential Succession Act. Trump tweets from the White House that this is an act of treason and orders the Attorney General to arrest both women.
Outlandish? Unthinkable? My argument is not that this grim scenario will happen, only that it is a real risk.
The best way to prevent it? That’s simple: an overwhelming popular vote for Biden, and democratic control of both houses of Congress. It is the closeness of the popular vote margin that would provide the necessary cover for those inclined to enable Trump. Without it, they won’t dare. And if both houses of Congress are controlled by the opposition party starting January 3, then many legal and procedural avenues will be denied to the Trumpists. Many of us have indulged in the narrative that our votes mean nothing in a presidential election, the result being determined by a handful of swing voters in the swing states. But this time around, that is manifestly untrue. Every vote really does count.