Our likely coming post Election Day nightmare

It’s not hard to predict that Joe Biden will win the presidency. It’s even easier to predict that regardless of what the votes are, Donald Trump will dispute the results. It’s also easy to predict that voting will resemble something of a fiasco.

It will be a manmade fiasco. Those who can will want to vote by mail. I know I will. But most states don’t have much experience with vote by mail, and certainly not at the level likely to be seen in this election. It’s unlikely that there will be any money in a next bailout for this effort. But even if the money is there, time is running short for states to put good operational plans in place. We are less than three months until Election Day.

And of course you can count on states that are controlled by Republicans will pull out all other stops to suppress votes from people they don’t want voting. Expect fewer polling stations in communities of color. This is a well-practiced tactic, but there is likely to be even fewer such places this year. And if it’s possible to purge voter roles, Republicans will do so. Trump’s new postmaster general is already prohibiting overtime, leading to delays in the delivery of first class mail. In most states, ballots received after November 3 won’t count. Mail in voters will need to allow for extra time for ballots to be received. Many polling places are in schools, which are likely to be shut down due to covid-19. That will be another excuse Republicans will use to reduce the number of polling places.

Obviously worried, Trump is already busy being proactive. He claims vote by mail will be fraudulent, and claims there is a distinction between it and absentee voting. There isn’t, unless absentee voting means going to city hall a week or two early and voting there instead. That’s not what it meant to Donald Trump, who voted absentee by mailing in his ballot. Trump is already being selective. In states where mail in voting favors Republicans, like Florida, Trump is not concerned, but where it favors Democrats, like in Nevada, obviously that sort of voting should not allowed. Many states have mastered mail in voting, such as Oregon, but obviously their successes won’t change Trump’s opinions.

So what’s likely to happen is that Trump will dispute the results, mostly in swing states where he lost. This will involve two tactics: inciting his supporters to take action legal or illegal (expect lots of paramilitaries trying to occupy certain state capitols), but also through lots of litigation. He will also try to whip up Republicans in Congress to claim that the election was fraudulent. Ultimately though it is up to each state’s Secretary of State to certify the results of its state’s electoral college, which will generally meet in the state’s capital in early December. In 2000 this is what happened in Florida, after the case went all the way to the Supreme Court and sealed the election for George W. Bush.

Past that point the scenarios get scarier. If you remember what happened in 2000, the results of the Electoral College are announced in what amounts to a joint session of Congress, overseen by the president of the Senate, at the time Vice President Al Gore. You may recall the irony of Al Gore declaring George W. Bush had a majority of the Electoral College votes after each letter from the Secretary of State was opened at the session. Gore made Bush’s presidency official.

The scarier scenario is that Trump tries to prevent this from happening, perhaps by surrounding the Capitol with armed troops so Congress can’t meet. While all this is going on, there would be huge protests across the country, but most importantly in Washington D.C.

It’s likely that many of Trump’s paramilitary forces will try to go postal. It’s not hard to envision armed conflict between Trump supporters and protestors, governors trying to use the National Guard to keep order in their states and Trump trying to use his powers as Commander in Chief to overrule them. It’s also hard to see how the Supreme Court does not get involved somehow. Given that Trump is already not bothering to follow court orders, most notably on DACA, it’s unclear whether he will even go along with the Supreme Court’s decision, which is likely to go against him.

The best that Trump can hope from the Supreme Court is that it sees the certifications by certain states as likely tainted and tries to delay the selection of the next president by the congressional process. There are some wild scenarios where a deadlocked Electoral College means that Congress chooses the president instead of the Electoral College, with each state voting as a block. Republicans currently control twenty-six legislatures. This is potentially could be a way for Trump to stay in office, but only if the Electoral College deadlocks, which is unlikely.

Which ultimately leaves the issue to the constitution and law. If the Electoral College has not decided on a president or vice president by Inauguration Day, the Speaker of the House would be the acting president. This will almost certainly be Nancy Pelosi. And she will have to try to clean up this constitutional crisis, likely while our country descends into something resembling low-level civil war. Ultimately it will be our military and whether soldiers follow their sworn oaths that will make the difference. Regardless, Trump’s current term ends January 20 at noon Eastern Time.

Let’s hope it doesn’t come to this. It’s clear that Trump won’t accept any results where he loses. The time between Election and Inauguration Days are likely to be the most fretful and constitutionally challenging on our republic’s history. What it will amount to is whether enough Republicans follow rule of law to force Trump’s hand, and betting on that happening is likely to be a bad bet.