Yes, Trump Can Sabotage Election Day | Opinion

On July 30, 2020, as Americans mourned the passing of one of the great civil rights leaders in U.S. history, Rep. John Lewis (D-GA), Donald Trump proposed on his Twitter feed that America postpone its upcoming presidential election—a historic disintegration of the nation's carefully plotted elections timeline that is outside the constitutional and statutory authority of a president to effectuate. Shortly after tweeting out this historically destabilizing proposal to his nearly 85 million Twitter followers, the president pinned the tweet to the top of his social media feed. This latter decision, seemingly minute, underscores that Trump may be signing onto a "delay election day" effort for the long haul.

Trump's claim is that the COVID-19 pandemic—whose scope in the United States is substantially a product of his own malfeasance and nonfeasance—coupled with a crisis at the United States Postal Service, which he carefully engineered by delaying a bailout of the agency and putting a longtime crony atop its leadership, makes impossible a mid-pandemic, largely mail-in general election on November 3. Though the nation has voted, in the past, during all manner of wars and natural disasters, now that Donald Trump is trailing his 2020 Democratic opponent by double-digits nationally and single-digits in an array of purple and even red states, he thinks voting may have become impossible. Even his concurrent, seemingly contradictory campaign to convince America's parents to send their children to school mid-pandemic isn't stopping him from declaring that a general election is simply too complex to conduct in the midst of a public health crisis. Nor has the absence of any hard evidence—since 2000, over 250 million votes have been cast by mail-in ballot in the United States, with only 143 convictions (about seven a year nationally) for the fraudulent use of such ballots—stopped Trump from insisting that widespread mail-in balloting invariably leads to voter fraud, and that this purportedly high incidence of fraud precludes a national election in 2020.

So what's behind this tweet? Does Trump really think it points to a winning strategy? Does he for some reason believe that—despite lacking the authority to postpone a presidential election—the balloting now scheduled for November will by dint of fate or magic nevertheless be postponed? Does he think his legal advocates in and out of government would win before the United States Supreme Court if they sought to litigate the issue for him, before or after election day?

The answer to all of these questions is almost certainly "no."

The nightmare scenario that Trump seems willing, if not yet fully ready, to plunge America into isn't about him winning the 2020 election, let alone some grand and exponentially less plausible scenario involving a violent coup or the intervention of the U.S. military—which has already publicly disavowed the prospect—to prevent a Biden presidency. In fact, the far more troubling scenario is one in which Trump perverts our democracy and ruins our 2020 general election by urging his supporters not to participate in it at all.

Staggeringly stupid—but effective

While Trump has neither the constitutional nor statutory authority to bump election day until after a COVID-19 vaccine has been found and been fully deployed across America—a process that could take years—he does have two resources almost as influential in an era in which political logistics can operate as powerfully in electoral politics as the rule of law: an Attorney General willing to use DOJ's Office of Legal Counsel (OLC) to declare "legal" almost anything Trump wants, and a fan base so fanatic it will do almost anything he urges it to do. And that includes not going to the polls on November 3.

How would Trump benefit from his voters staying home on election day? No matter how paradoxical the premise may seem, it's not only not complicated, it's a staggeringly stupid-but-effective way to cause electoral chaos. If Trump—waving about an OLC opinion declaring a president can postpone an election via the emergency powers granted him amidst a pandemic and collapsing postal service—tells his voters in late October not to vote because he is "postponing" the November 3 election, he can set toppling a sequence of dominoes whose final piece is nationwide chaos.

Imagine it: the head of the executive branch of the U.S. government declares via social media and television that the upcoming election has been postponed; the nation's judicial branch, not yet engaged in the matter in any way, remains silent; and Congress, our legislative branch, divided by historic levels of partisanship and now thrown for a loop by Trump's historic declaration, is unable to respond quickly or effectively. In consequence, tens of millions of American voters stay home on November 3 either because they believe in good faith that the president has (or should have) the authority to postpone an election—even though, to reiterate, he definitely does not and should not—or because they've been assured by their favored candidate that the election has been rigged by a faulty mail-in balloting system. The result: a Joe Biden victory whose final tally is lopsided in a way one ordinarily doesn't see outside autocracies or failed states, something on the order of 75 percent (Biden) to 25 percent (Trump).

Picture, in this scenario, voter turnout on the order of 20 percent or 25 percent.

Thankfully, this is only a hypothetical—but it's worth playing out because everything we know about Trump, Trump's public statements, Barr, the COVID-19 pandemic, national polling, and the administration's systematic campaign against the continued proper functioning of the United States Postal Service suggests it isn't far-fetched. Indeed, on the same day Trump proposed delaying the election and illegally extending his presidency, Secretary of State Mike Pompeo gave sworn testimony to Congress contending falsely that it is not Congress but Bill Barr—Trump's pliant Attorney General—who gets to decide whether a president can postpone an election during a pandemic. Note too that Trump's July 30 tweet comes just 11 days after a Fox News poll revealed that Biden's lead over Trump nationally drops from double-digits to within the poll's margin of error if the pandemic remains uncontrolled in early November. Is it possible Trump now sees fear-mongering as a win-win proposition? Either so many Americans declare they're afraid to vote in November that Trump's internal polls in late October show him with a real chance of winning, or so many Americans express a willingness to vote despite Trump's warnings that Trump transitions—just days before the election—to a COVID-19 narrative that continues to amplify the dangers of the virus, but now with a different ambition: that no one votes, especially Republicans. It's a line of thinking that isn't sophisticated, but is in keeping with what America has witnessed from Trump over the last four years.

So what would the result of historically low turnout and a historically lopsided Biden win be? First and foremost, if such wonky, highly partisan results come to pass, they almost certainly would have doomed GOP incumbents across the country to lose their re-election bids, thereby forcing them to publicly agree with Trump that the election just held was invalid. Faced with the possible collapse of the Republican Party, GOP secretaries of state around the country would refuse to certify what they would publicly decry as invalid election results ("not a reflection of the will of the people") and block their states from certifying electors for the nation's electoral college. Biden therefore not only would have become president with tens of millions of voters staying home—winning by a conspicuously unrepresentative margin—but in early January might find himself with fewer than 270 electoral votes.

Litigation in federal court, likely initiated by Democrats—as Trump's position would be that he had moved the election but was ready to negotiate with Democrats on a new date for the "real" election—would move just as glacially toward a confrontation in the Supreme Court as every other piece of Trump-related litigation has, meaning that the judicial branch would likely not speak conclusively on the matter until early January. The result: weeks of mass right-wing protests in November and December would be met by a unanimously pro-Trump executive branch, a predictably party-divided legislative branch, and a still-silent Supreme Court.

Such a spectacle, if it came to pass, could well put the prospect of a conventional Biden presidency beyond reach. While Biden would take up the Oval Office on January 20, 2021 (and be entitled to do so by law) it's not clear whether the Democratic Party would actually prefer that result—given that it would marked by chaos and confusion and possibly sporadic violence—to a new and more representative election the party would be confident Biden could win in any case. As to who would be the nation's temporary president between January 20, 2021 and any negotiated "re-election day," that's a long tale that (if you look it up) likely ends with Vermont senator Patrick Leahy, a Democrat, in the Oval Office.

Don't underestimate Trump tweeting

This sort of primordial chaos is, of course, a classic Trump gambit: to so muddy truth, process, convention, and even public sentiment that every lever of government and every instrument of good sense is confounded in ways that would have been impossible to imagine beforehand. Indeed, in the scenario here described, which all must devoutly hope never comes to pass, a simple series of tweets by Trump in late October, whether or not accompanied by an OLC opinion engineered by Barr, would result in an Office of the President rendered almost entirely "unusable" by its current occupant. Picture Drogon burning the Iron Throne in Game of Thrones—except this time it's real life, the Iron Throne is the Resolute Desk, and the dragonfire is a series of historically reckless and immoral tweets.

Too many Americans disregard Trump's tweets as mere hot air—when all too often they have presaged momentous action. America first learned of the Trump administration's plans for Michael Flynn and Roger Stone in creepy, passive-aggressive missives from the late-night presidential Twitter-finger; likewise, the "Muslim ban," the White House's borderline homicidal push for the use of hydroxychloroquine throughout the United States, the harassment and firing of various government whistleblowers, the outrageous recent deployments of federal forces to local protest sites, and much more were first intimated by the president on his social media feed. For every "covfefe" or "Melanie Trump," there's been a withdrawal from an international treaty or a refusal to properly apply Russian sanctions that Americans first saw hinted at, or even declared outright, on Twitter.

Just so, too many of us continue to presume this lawless president is prevented from causing chaos in America by the very rule of law he has spent a whole presidency rendering facile and seemingly irrelevant. Can Trump maintain his hold on the presidency by recourse to the U.S. Constitution, federal statute, the assistance of the military, or a straight up-or-down vote on November 3? As to the first three, the answer is an unambiguous "no"; as to the fourth, it's looking increasingly unlikely. But can the president create a scenario in which the Democrats are faced with one of two options—a presidential administration widely seen as "illegitimate" and subject to constant threats and violence and civil disobedience by GOP voters, or agreeing to vote in Congress for an illegitimate "do-over" election at an unspecified future date—that are equally nauseating? Yes, that he can try.

With a few tweets, Trump can do what he once threatened to do at a presidential primary debate in 2016: bring down the Republican Party if it doesn't stand by him. A general election in which Republicans don't show up to vote by the tens of millions would end the nation's two-party system of government, leaving ex-Republican officeholders and still-aspiring GOP officeholders desperate for a new election, and Democrats pressured to an unsustainable degree to "save" the nation's political system by giving in to what would essentially be terroristic demands by a sitting president.

We can't assess, here in July, whether what is described here is likely to happen. But what can be said, on the hard evidence we have, is that the scheme detailed above would be easy for Trump to advance; that he has casually, and without much need for forethought, positioned the pieces on the board in a way conducive to him acting in this way in the future; that acting in this way would be consistent with everything we know about the man; and that all of the outcomes of this still-hypothetical scheme are beneficial to Trump—if we assume that, at present, he is heading for defeat at the polls this November.

With just a few tweets urging his voters to stay home and a television address falsely declaring that he has the authority to postpone election day, Trump creates a new set of outcomes for himself, as he faces the prospect of being immediately indicted by the Southern District of New York (in the Michael Cohen case) upon his departure from office: (1) the election is postponed indefinitely; or (2) Biden becomes president, but under circumstances so contested and volatile that the notion of prosecuting Trump post-presidency becomes unthinkable, as it could incite widespread domestic unrest and violence; or (3) Trump has engineered an election "loss" so clearly not the result of all Americans who wanted to vote on November 3 having voted, that he gets to go to his grave claiming he didn't really "lose" in 2020. Cold comfort if he is ultimately indicted on a series of federal felonies, but exactly the sort of cold comfort a lifelong lawbreaker and apparent narcissistic sociopath might find compelling.

He can be stopped

So what can be done to ensure this nightmare scenario never unfolds?

First, discussing a potential scenario of this sort publicly helps defuse it by making what would otherwise be nefariously opaque, transparent. The fact that Trump can brute force his way into an "illegitimate" election that places the Democratic Party in a "catch-22"—deeding them something they might not want, at least not in the way it is handed to them—needs to be acknowledged by political strategists, constitutional law experts, and election-law specialists who had always presumed, pre-Trump, that constitutional clauses and federal statutes will forever remain dispositive in national elections.

Second, hardworking American journalists must get every GOP politician in Washington on the record right now—not only as to urging all Americans to vote on November 3, but also in agreeing to abide by the election results on that day, no matter what the turnout is.

Third, the Department of Justice must issue a statement confirming that election day cannot be moved absent an act of Congress.

Fourth, Supreme Court watchers must engage in some public "scenario planning" as to how SCOTUS would accommodate an unprecedented dispute between the branches of government on what constitutes a legitimate election—as well as the question of whether candidate-manufactured confusion over election day is a valid basis for declaring tens of millions of voters to have been disenfranchised.

Fifth, election-law specialists should begin researching and publicly discussing the grounds on which state elections officials can refuse to certify a state's vote, block a slate of electors from being sent to Washington, or change their reporting and certification timelines (administratively or through hurried post-election legislation) in ways that frustrate national efforts to declare one candidate or another as having reached 270 votes in the electoral college.

Sixth, Democratic officials—no matter how previously preposterous they would have deemed a situation such as the one considered here—must listen to Trump's words and heed what they portend, engaging in a national campaign to educate voters on who becomes president on January 20, 2021 if for any reason there isn't a clear winner by then.

Seventh, social media companies like Twitter, Facebook, and Instagram must deem any Trump posts about postponing the election to be disinformation and attempted election interference—and block or delete them. Just so, cable television must commit itself to not providing a platform for Trump deep-sixing the November election if days before the vote it appears he is going to lose. And conservative leaders must speak out now; an early good sign on this score was a New York Times op-ed last night, in which the co-founder of the arch-conservative Federalist Society, Steven Calabresi, declared that Trump "should be removed [from office] unless he relents" in advocating for a postponement of the election.

Finally and most importantly, all of us—as voters and witnesses to Trump's historic perfidy and recklessness—must acknowledge that the Overton Window has indeed been moved by Trump's tweet: the nightmare scenario described in this article is not only possible, but is consistent with all the evidence we presently have. It's better for us to say so now, than to be blindsided by a barrage of tweets and a hasty TV declaration that comes 96 hours before election day. After four years of Americans watching Trump's words and deeds; after four years of many of us learning his words and deeds as president to be as consistently reckless and lawless as those we saw from him in the decades preceding his presidency; it's not clear how anyone thinks Trump can face the prospect of his most embarrassing public defeat with equanimity, rather than an inclination to burn the edifice threatening his vanity—our electoral system—to the ground.

Hours after Trump's now-infamous proposal hit Twitter, Nate Silver, one of the nation's top pollsters, tweeted that "If Trump keeps implying (or just stating outright) that the election will be rigged, one wonders if some of his supporters might not bother to show up [on November 3]." Silver's observation suggests that America's top election experts are waking up to the plausibility of a seemingly self-contradictory election strategy: to "win" an election by making it impossible for a meaningful election to occur. And indeed, if proper remedial actions aren't immediately taken by media, politicians, and subject-matter experts, all of America could soon see clearly the chaotic future Silver glimpses—and its dire implications for our democracy and rule of law.

Seth Abramson is Assistant Professor of Communication Arts & Sciences at the University of New Hampshire and author of Proof Of Corruption (Macmillan, 2020). On Twitter @SethAbramson​.

The views expressed in this article are the author's own.