Although much attention has rightly been given to the importance of safeguarding the physical integrity of the vote in this year’s election, less attention has been paid to the possibilities for serious disruptions to the political and administrative transition between Election Day on November 3, 2020, and Inauguration Day on January 20, 2021. While there are indeed grave causes for concern about what could happen during these eleven weeks, there are also many opportunities to mitigate the worst possible outcomes, if those committed to the democratic process begin to plan and act now.
I helped organize and participated in the Transition Integrity Project last December to assess and guard against the risk of irregularities in the November election. In June 2020, our group conducted scenario planning exercises to model different election scenarios: a big Trump win; a big Biden win; a Biden squeaker; and a truly ambiguous or uncertain result.
Teams were assigned to play the Trump campaign and the Biden campaign, Democratic and Republican elected officials, the media, the judiciary, and the executive branches of government. A group of more one hundred people participated. Recruited from across the political spectrum, they included a Democratic former governor of a swing state (Jennifer Granholm of Michigan), a former Republican National Committee chairman (Michael Steele), a Democratic former presidential Chief of Staff (John Podesta), a Republican former Presidential speechwriter (David Frum), a Republican former Vice Presidential Chief of Staff (Bill Kristol), a former Democratic head of the Civil Rights Division at the Department of Justice (Vanita Gupta), as well as many senior political operatives, former government officials, and members of the media.
In the scenario exercises, which unfolded over a series of turns designed to simulate the period between November 4 and January 20, each team had a chance to make “moves,” which other teams would debate and counter, with the results adjudicated by a roll of the dice. Following methods common among military wargamers, disaster preparedness experts, and other policy planners, we designed this structure to uncover how the dynamic interactions between competing teams, as well as sheer luck, might produce unexpected results.
The bad news: in each scenario other than a Biden landslide, we ended up with a constitutional crisis that lasted until the inauguration, featuring violence in the streets and a severely disrupted administrative transition. The good news: we also learned a great deal about how to prevent the worst from transpiring. There were six major takeaways.
First, we are facing an “election season,” not an “Election Day.” Given that there will be unprecedented numbers of provisional, absentee, and mail-in ballots, many of which may take days to be counted, it is very possible we will not know the results of the election on the evening of November 3rd. What’s more, in many parts of the country, these so-called overtime votes will break disproportionately towards the Democrats, a process referred to as the “Blue Shift.”What this means is that it’s very possible that Trump could be leading on Election Night but would see that lead evaporate as the overtime votes are counted. This is precisely why Trump himself recently declared that he wants the results called on Election Night—i.e. before the Democratic-leaning late votes can be counted.
This longish period for vote counting opens up opportunities to manipulate the process and to sow doubt and confusion about the election results. In our scenario exercises, Team Trump attempted to claim that the late votes were fraudulent, and in one case tried to have the Department of Justice work with the Post Office to seize mailed in ballots to prevent them from being counted. In other cases, election officials were doxxed in order to intimidate them from going to work, and “second amendment types” showed up at vote counting sites to try to prevent late votes from being counted.
To address these threats, the Democrats need to have a systematic media strategy to prepare the public for the prospect of an extended election period, to educate the public about the reality of the Blue Shift, and to dismantle baseless narratives about systematic electoral fraud. Moreover, Governors, Secretaries of State and Attorneys General need to develop plans for transparency in the vote counting process, to ensure not only that the vote count is accurate, but just as important that the public has confidence in the count. State officials who refuse to take such measures should be named and shamed as seeking to undermine election integrity for partisan purposes.
Second, it is surprisingly easy to contest the election. Our democratic system relies on certain norms, including that the losing candidate will concede when the writing is on the wall. But a candidate who has the backing of his party to contest an election can easily do so well into January. In a recent interview with Fox News’s Chris Wallace, Trump intimated (as he did in 2016) that he might do just that. As legal historian Lawrence Douglas has documented in his recent book Will He Go? Trump and the Looming Election Meltdown, our archaic, 18th century methods for selecting a President—which include certification of the popular vote by state legislatures, the selection of a slate of electors by Governors (who may disagree with their legislatures), approval of the electors by both chambers of Congress (who may disagree with each other), with a tiebreaker going to the sitting Vice President (in this case, Mike Pence)—create ample opportunities for candidates to pursue unorthodox but “technically legal” approaches to “winning” the electoral college. Indeed, the election of 1876 featured just that sort of contestation. The resulting compromise effectively ended Reconstruction, condemning African Americans in the South to a century of Jim Crow, with deleterious effects to this day.
To prevent such contestation from precipitating a full-blown constitutional crisis that, in the worst case, could lead to competing inaugurations (which almost happened in 1876), political leaders in state governments should establish, in advance and on a bipartisan basis, standards to be used to adjudicate competing claims for how to allocate the state’s electoral votes. At the same time, campaigns should be prepared to keep their staff in place through January 2021 in all states where the results may be close. Above all, they should realize that any electoral contestation will not just be a legal fight, but rather will be an integrated campaign of information warfare and sustained political mobilization in the streets. The scenarios we ran suggested that in a contested situation, the battle to win “the narrative” about who won the election is likely to be the decisive factor in who ultimately prevails.
Third, perhaps the most sinister finding of our scenario exercises was that a normatively uninhibited incumbent has a large, structural advantage because he sits as the commander of the awesome power of the executive branch. Many of the conventions that safeguard the integrity of our democratic transition process rely not so much on hard laws but rather on soft norms that have historically limited the abuse of executive or presidential powers. An incumbent President willing to disregard these norms and unrestrained by other leaders in his party has many “legal” but deeply disconcerting options available to him, including the ability to deploy the military and other federal agents domestically, for example invoking the Insurrection Act to deploy military troops to quell civilian protestors; federalizing the national guard or deploying Department of Homeland Security (DHS) agents for the same purpose; using Department of Justice and other agencies to cast doubt on election results; hiding or selectively promoting information about foreign interference in the election; pursuing criminal investigations against the opposition and aligned organizations; and invoking the National Emergencies Act to seize a wide range of extraordinary powers. Only the unwillingness of leaders in the military, the DHS, and the Justice Department to follow such orders prevents these moves. To this end, there needs to be a systematic media strategy designed to prepare the patriotic civil servants in these organizations for these possibilities, making clear their constitutional responsibility to ensure a smooth and lawful transition.
There are no foolproof ways to mitigate against these possibilities. We can begin, however, by naming the elephant in the room: President Trump is not so much running for reelection as trying to stay in power by any means he can. Winning the majority of the votes fair-and-square is only one way to achieve that goal. The events on June 1 in Lafayette Square and much of July in Portland, Oregon, are reminders that the President has multiple avenues to deploy federal troops with minimal legal justification and without the support of local officials. While the military pulled back after the Lafayette Square incident, partly in response to former Defense Secretary James Mattis’s forceful reaffirmation of the norm against using uniformed military for domestic policing duties, the federal officers and leadership of DHS have shown no such restraint. As of this writing, DHS has announced that these federal officers will now be deployed to Cleveland, Detroit, and Milwaukee, all large blue cities in swing states where voter intimidation could easily swing the result in favor of President Trump.
Congressional oversight, whistleblower protections, and organizing former high-ranking officials to speak out in advance against such potential abuses of power would also help reinforce the norms against such abuses.
The two biggest dangers that the scenario process uncovered were the possibility that a false “fraud” narrative could take hold, or violence in the streets could escalate. President Trump indeed appears to be laying the groundwork for both. Trump is already working to convince the public that the election results can’t be trusted. He’s started this campaign already by claiming that voting by mail will lead to voter fraud, a claim his own intelligence officials have consistently rejected. The President and rightwing online media personalities already have a well-established routine for generating and amplifying rumors and conspiracy theories. Much will depend on whether these fringe perspectives get picked up and uncritically reported or even endorsed by “mainstream” rightwing media such as Fox News or the Wall Street Journal op-ed pages. Now is not a time for Democrats to be complacent. They need to meet these narratives head-on, and early.
The possibility of political violence is also significant, both as a voter intimidation tactic in the runup to and day of the election, and in the aftermath, particularly if the result is contested. In several of our scenarios, militant groups on both right and left took to the streets to challenge political authorities. Some irresponsible parties are likely to propagate blood-curdling messages predicting and even calling for civil war should their side lose. Add to this the possibility that foreign troublemakers may once again try to stoke violent confrontations between different factions, and the situation is clearly combustible. For anyone who has studied the history of electoral violence in comparative international perspective, all the warning signs are flashing red that we are at grave risk of widespread civil unrest unless immediate action is taken.
What sort of action? Above all, the media has an obligation to promote accurate reporting—particularly to make sure that the public understands that we will not have results on Election Night. Responsible media organizations must take care not to report (or allow the viral dissemination of) unverified rumors of election shenanigans or to treat a few isolated cases of miscues as a reason to doubt the integrity of the results as a whole. Social media platforms in particular need to have strategies to remove/correct inaccurate information, or at least prevent it from going viral, and to stop their platforms from being used to organize violence. Finally, police and other law enforcement organizations need to start planning now for large protests, including possibly competing protests and agents provocateurs, and to identify de-escalation strategies to avoid violent conflict.
Fifth, if the election does become contested, Democrats should not count on litigation alone to resolve it in their favor. In each game, the team that moved most aggressively out of the gate, and that was most effective in coordinating not only its legal strategy, but also its political action strategy in the states, its political mobilization strategy across the country, and its media messaging, had a decisive advantage. Here it is important to note that Republicans hold a distinct advantage: their political discipline and coordinated field organization and media operation has no comparable model on the much more fractious left. Our scenarios suggested that the most aggressive—which is to say normatively uninhibited—strategies are more likely to succeed. Whichever side claims the narrative immediately and creates “facts on the ground” indicating that they intend to physically keep or take the Presidency is likely to prevail. For this reason, grassroots organizers need to prepare for mass mobilization, and political campaigns need to work with legal experts and others to better understand the dynamic between legal and political strategies.
Sixth, even if Trump loses and concedes, this administrative transition will be unlike any other. Key threats that emerged from the scenario games included that Trump might use his last weeks in office to maximize the flow of federal dollars to Trump businesses. He might try to pardon everyone, including himself, to protect against future legal actions. He might start a foreign adventure to distract attention from his actions. And he might intentionally disrupt the normal administrative handover procedures, for example by destroying files or only providing the incoming administration with the bare minimum of information. Trump has several motives for pursuing such actions. First, such behavior will increase his leverage in any negotiation he may undertake with the incoming Biden administration on his “exit package” (for example, seeking immunity from prosecution in New York state for money laundering and tax evasion). Second, the more ruinous the situation his successor faces, the harder it will be for them the enact a positive program, and the easier it will be to find fodder for criticizing the performance of the new administration. Because, who knows, maybe he or one of his children would like to run in 2024. Such actions would unfortunately not be unprecedented, as the mirror efforts by Herbert Hoover in 1932-33 to hamstring and sabotage president-elect Franklin Roosevelt, in the hopes of preparing his own comeback in 1936.
Again, there are no easy fixes to these risks. We can encourage investigative reporting to expose corrupt deals for Trump businesses and provide ammunition for a future administration to potentially seek legal redress. We can clarify whether there are criminal penalties for the destruction of documents. We can provide protections and support to whistleblowers. And Congressional oversight committees can redouble their efforts to make it clear that they will hold the administration accountable for failures to uphold the law.
But even if the country and our system of government gets through the transition more or less intact, whoever is in the White House will be presiding over a deeply traumatized country where the losers are likely to feel not only aggrieved but afraid. Over the longer term, it is therefore essential that we as a country develop a strategy to address “Trumpism after Trump.” Trump’s base will not demobilize just because he leaves office. Failure to address this threat will compromise the next Administration’s ability to govern.
The next administration will face a number of thorny conundrums in this regard. To take one example: while the country needs to systematically challenge white supremacists and dismantle extremist networks, it is also true that we need a strategy to bind up the wounds that the country has suffered over the last few years. And these two goals are in tension with one another. Likewise, should Biden succeed in taking office, one of the most immediate questions he will face will be what to do about members of the former administration who have committed egregious abuses of power. Should the incoming Department of Justice pursue criminal charges for any wrongdoing they may find, or challenge pardons Trump may issue to himself or others on his way out the door? On the one hand, pursuing criminal charges will be seen by the right as mere political revenge, further poisoning the political atmosphere. On the other hand, letting them walk away scot-free risks further entrenching a culture of political impunity.
One option worth exploring is possibility of a Truth and Reconciliation Commission, something South Africa used to confront the legacy of Apartheid in a way that enabled restorative justice. Major factions of both parties feel as if the victory of the other represents an existential risk to their way of life. Restoring the democratic promise of the United States above all will require rebuilding a shared narrative of trust and collective security.