The American Interest
Policy, Politics & Culture
What if Nobody Wins?
Published on October 25, 2012

Many Republicans sincerely believe that if Barack Obama wins a second term as President, America as we know it may cease to exist. Some Democrats are equally passionate in their belief that a Romney election would fundamentally alter the social contract, return us to disastrous Bush policies, and maybe get us into a war with Iran.

Those are high stakes, no doubt, although I think much of that is overblown rhetoric designed to ignite base voters. But even if their worst fears were to come true, partisans on both sides are missing the most dangerous outcome in this election: What if nobody wins? What if we wake up on the morning of November 7 only to find out that in one, three, five, or even more states, the outcome is in doubt, and we are heading for court battles that will make Florida in 2000 look like a tussle at the local PTA?

The odds of something like that happening have never been greater. And the likelihood that we could resolve it even as well as we did in 2000 is lower than ever.  Here’s why.

More than ten states are putting new election laws into effect in this election dealing with voter identification, early voting or absentee ballots. Other states are altering their election laws in less obvious ways that affect administration. Each of these changes increases the chances that there will be unintentional errors, confusion or systemic processing failures. Remember the “butterfly ballot” in Palm Beach?  If that one innocent, if catastrophic, snafu in the shape of a ballot had not been made by a local Democratic election official, Al Gore probably would have been elected President.

But it’s more than just these kinds of changes we need to be concerned about. We need very much to be aware of the two dominant parties and a host of outside groups lawyering up to respond to these changes, and to the fears that the ballots will be tainted.  Democrats believe that millions of voters could be disenfranchised by voter identification laws, or by voter watch groups challenging legitimate voters in heavily Democratic precincts.

Democrats fear that aggressive challenges will work to elect Romney unfairly even if every challenge is unsuccessful, because of the delays that would inevitably ensue. If an urban precinct can be tied up by arguments and challenges, and the lines get to be an hour or more to vote, it’s a given that many voters will be unable or unwilling to wait for their chance to vote for Obama. In a close election, a few sabotaged precincts could create enough long lines to tip Ohio to Romney.

Democrats are also worried about widespread registration fraud on the part of Republicans. In Virginia, it seems that a Republican contractor threw away Democratic registration cards. This follows reports that a firm linked to registration fraud worked for the Romney campaign and the Republican Party of North Carolina, another swing state.

On the other side, Republicans seem to be deeply afraid of voter fraud, from illegal immigrants or from multiple voting by the same persons—visions of Chicago, November 1960. While these fears seem less supported by facts, they will nevertheless motivate Republicans to police the polls with unprecedented fervor.  Media reports that Republicans and affiliated groups are recruiting thousands of poll watchers in swing states seem very credible.

Even at the local level, both parties are showing signs of readying for a lengthy, ugly battle over provisional ballots and the minutiae of election law. In Virginia, one of the top three swing states, Democrats are already accusing Fairfax County election officials of misinterpreting the law for partisan purposes. 

As was revealed to many voters in 2000, America, unlike most advanced democracies, does not have, in most states, a non-partisan election administration system.  Instead, elected or appointed partisans are typically in charge of elections. This is such a bad idea that, when we set up quasi-democracies in Afghanistan and Iraq, we didn’t copy our own system. Nor did we copy the system in which Federal elections are funded and run by states and local governments following rather idiosyncratic rules and norms.

Yes, unlike almost all other advanced democracies, America has a creaky, state and locally run election system that is woefully underfunded and famously inaccurate.  For some widely used voting methods, the fail rate, in which a voter’s intent is unable to be ascertained, is well above 2% of ballots cast, which would be an outrage in Europe. The fail rate is even higher for absentee ballots, as is the risk of fraud. Given the huge surge in early voting recently, we don’t even know the fraud rate for that.

We don’t even have a national registry of voters, forcing voters to reregister every time they move across state lines. That obviously allows for the possibility of voters with multiple residences can vote several times.

And this election has gotten closer and closer since Obama’s disastrous first debate.  Republicans and Democrats know it could easily come down to one state.  Every vote in the seven to nine swing states could count.

So we are poised for a perfect storm of election controversy, and if it emerges, it will be almost impossible to resolve easily. We may look back on December 12, 2000, when Al Gore conceded to a 5-4 Supreme Court ruling, as a golden era of comity and civic virtue—because, this time, neither side is as likely to accept rulings by courts, even the Supreme Court.

The level of hatred on both sides has risen to heights not seen since the eve of the Civil War. Some Republicans in leadership roles have even advocated violence in the event of an Obama victory via loose talk of “2nd amendment remedies“.There are almost no moderates left in Congress, and both parties seem convinced that the other is not just wrong, but evil. The “Big Sort“of increasing ideological segregation has continued to separate Americans into red and blue churches, workplaces, counties and social networks.

Americans are also much less likely to trust neutral institutions today than in 2000. We see partisan machinations everywhere. When the Bureau of Labor Statistics reported a sharp drop in unemployment last month, Romney supporters quickly attacked it as partisan, even though the Bureau is one of the most respected sources of impartial data in the country. The same thing happened when media polls, prior to the first debate, showed Romney consistently behind Obama. Republicans, at the mass and elite level, alleged that pollsters were altering their samples to favor Obama. 

Democrats, for their part, remain suspicious of corporations with Republican ties that provide voting machines. Weeks before the election, leftwing groups reported that Tagg Romney, the son of the GOP candidate, may have investments in a company that provide Ohio’s voting machines. And Democrats still have not forgotten Florida in 2000, when many believe the election was stolen from the rightful winner.

The bipartisan norms of American politics are also fraying. In 2000, a couple weeks before the presidential election, 17 soldiers were killed in a guerilla attack on the U.S. Cole off of Yemen. Candidate George W. Bush, running against a sitting Vice President, made clear that he stood shoulder to shoulder with the Clinton-Gore Administration, and did not attempt to use the tragedy as a vector for attack. Compare that with the Romney campaign’s reaction to the Benghazi terrorist attack in which an ambassador and three other Americans were murdered by terrorists. Romney did not wait 24 hours before waving the bloody shirt and blaming Obama’s foreign policy for the deaths.  The norms that “politics stops at the water’s edge” and that Americans of both parties rally to the President when our security is threatened overseas have both vanished, which signals that politics uber alles is the order of the day. 

Finally, the Supreme Court itself is not the institution it was in 2000. Then, Democrats, led by Gore, grudgingly accepted the Court’s narrow ruling for Bush. Would partisans, particularly those on the Left, be willing to see a conservative court twice in twelve years put a conservative in office in a contested election? And asking the court to resolve one state’s deadlocked disaster of an election recount is a piece of cake compared to resolving multiple states in dispute, each raising different issues, under different state laws, with different governing precedents and procedures. 

Ultimately, the nation will survive a two or three or four month election court battle. But the costs would be extremely high. Imagine a President Romney or President Obama who is inaugurated, perhaps even after January 20, without any legitimacy for 45 percent or more of the country. How would markets react to another protracted period of struggle over election outcomes? The debt ceiling kerfuffle of 2011 resulted in a tiny drop in our national credit rating; a prolonged legal battle over the White House itself, with no obvious end in sight, would do much more harm. It could even threaten the world’s faith in the dollar. 

A lot has to happen immediately after the election involving compromise between the lame duck Congress and Obama. Could that happen while Republicans and Democrats fight in the county courthouses of Ohio and Florida and Virginia for every dimpled chad and questionable voter registration?

A final worry: Congressional elections might be just as contentious. Control of the Senate is on the ballot, and possibly the House. There are several extremely close Senate races in prospect. Suppose we not only don’t know who will be President as of November 7, we don’t even know who will control Congress?  

Great nations usually decline most rapidly because of internal power struggles and governance failures. Rome had no greater enemy than strife among Romans for the right to rule. The stakes in this election could not be higher, in ways that most of us don’t even realize. Bigger than any single issue, bigger than the entire agendas of both candidates, looms this key question: Can America still peacefully exchange power without bitter controversy and weeks of uncertainty?

So before you hope that your candidate of choice wins, say a prayer that one of them emerges with a clear victory. Neither a President Romney nor a President Obama would be as bad for America as a President Nobody for months on end.

Jeremy D. Mayer is an associate professor at the School of Public Policy at George Mason University, and the author of Running on Race (2002) and American Media Politics in Transition (2008).