In case you didn’t have enough to worry about, opponents of President Trump are starting to go public with a fear that has long lurked just beneath the surface of America’s political conversation: that he will refuse to accept the legitimacy of an electoral defeat, or use some extra-legal means to stay in power, triggering a constitutional crisis.
Trump “may well resort to any kind of trick, ploy, or scheme he can in order to hold onto his presidency,” Bob Bauer, a veteran Democrat election lawyer and Joe Biden’s personal attorney, has said.
Unfortunately, there’s good reason for the concern, and the planning that’s being undertaken by Democrats and good-government advocates to address scenarios like these is necessary and important. Trump has several times “joked” about serving more than his constitutionally permitted two terms, and has often expressed admiration for authoritarian leaders who have sidelined democracy to stay in power. There are numerous examples of his utter disregard for the rule of law, from the abuse of power that led to his impeachment to his unprecedented attacks on peaceful protesters exercising their First Amendment rights.
His recent barrage of false tweets about mail-in voting — “Democrats are trying to Rig the 2020 Election, plain and simple!” he wrote last month — appears clearly aimed at delegitimizing the vote in advance, and there’s evidence that this effort is having the intended effect on some of his supporters. Meanwhile, Jared Kushner declined to confirm, when asked recently, that the election will be held at all. (To be clear, the Trump administration doesn’t have the power to suspend or cancel the election, which can only be done through an act of Congress).
But we shouldn’t let this kind of authoritarian power-grab scenario become the prime focus of media and public concern about the election. First, it could demoralize some potential voters by making them fear, wrongly, their votes won’t matter anyway. More important, it’s likely to shift attention away from the much greater threat. In reality, if Trump is going to stay in power illegitimately, it’s far likelier to be by undermining the election on the front end, through a mix of old-fashioned voter suppression and the spreading of misinformation.
It’s not that Trump would likely have qualms about brazenly defying election results, of course. It’s more that he’d have a hard time actually succeeding. Once a state has certified the results of its presidential vote, they can only be rejected through a majority vote of both houses of Congress. And that’s leaving aside that, to continue to exercise effective power, Trump would somehow need to convince both the leadership and rank and file of the executive branch and the military to stay loyal to him, rather than to the constitution. Again, it’s a very good thing that people are planning for scenarios like these, because the stakes are so high. But the safeguards in our system make them highly unlikely to come to pass.
By contrast, the voter suppression threat is clear and growing. Trump and his allies are devoting unprecedented resources to efforts to obstruct voting, including fighting off lawsuits brought by Democrats and voting rights advocates. In some states, Republicans are doing all they can, egged on by the president, to fight any extension of mail-in voting, potentially forcing voters to risk their health at the polls.
Meanwhile, the expected surge in mail-in ballots is likely to lead to legal battles over issues like absentee ballot deadlines and signature-matching, with Trump’s campaign set to argue for the most restrictive interpretations of law possible, potentially denying a voice to hundreds of thousands of voters, or more.
If the election is close, one or more of these issues may well end up before the Supreme Court. And given this court’s troubling record on voting rights cases, there’s no guarantee that justice will prevail. And that’s without even getting into the array of suppression tactics — voter purges, strict ID requirements, cuts to voting hours and days — that loomed even before the pandemic upended election planning.
We can also expect Trump’s allies to launch a sophisticated effort to spread false information aimed at confusing and demoralizing voters. The president’s campaign advisers have signaled that destroying Joe Biden’s image will be central to their strategy, and already they’ve taken advantage of social and conventional media companies’ hands-off approach to policing political lies to level a false attack about Biden and Ukraine. We’re almost certainly going to be hit with more of this. That’s leaving aside the kind of false propaganda, often aimed at stoking divisions in American society to boost Trump, that malevolent foreign actors are creating.
What makes these scenarios particularly dangerous is that they might not set off the kind of alarms they should. If Trump tries to defy clear election results, the media and other institutional actors can be expected to call out his power grab in unequivocal terms. That should create enough pressure to deny Trump the support he’d need. But a Trump victory that came through misinformation spread during the campaign, and then pandemic-aided disenfranchisement — especially if it’s ultimately blessed by the courts — would be much less widely identified as illegitimate, at least by non-Democrats. There would likely be no single bright line crossed, just a series of anti-democratic moves compounding each other to deny voters a fair election. It would be the ultimate frog-in-boiling-water situation — and one that arguably already happened, more or less, not so long ago.
It might not produce a constitutional crisis. Indeed, you’d likely hear the argument advanced by some that accepting the validity of this kind of result was the best way to prevent a crisis and maintain some fragile stability for a deeply divided country. But make no mistake: such an outcome would deal another major blow, perhaps the biggest yet, to our deeply troubled democracy. If we’re going to worry, that’s the scenario that should be at the front of our minds.
The views expressed are the author’s own and not necessarily those of the Brennan Center.
