As the election nears, anxieties are growing over the possibility that President Donald Trump will try to cling to power if he loses to former Vice President Joe Biden. Trump, for his part, is strongly hinting he will not accept any loss as a legitimate result. On Thursday, the president said that he’s deliberately blocking funding to the United States Postal Service in order to prevent people from voting by mail in the midst of the pandemic, which he claims, without evidence, will result in mass fraud. In the past week alone, he has also accused Democrats of trying to “steal an election” by supporting mail-in balloting, claimed that “China and Russia” are going to “be grabbing plenty of” fraudulent mail-in ballots, and that we’ll “never know who won the election” if courts don’t step in to stop people from voting by mail. On Friday, it was reported that the U.S. Postal Service is informing leaders in key states of a “significant risk” that some ballots “will not be returned by mail in time to be counted.” In the past, Trump has refused to say that he would accept an election loss, and his Attorney General William Barr has testified that he might use the Department of Justice to stop ballots from being counted if requested to do so by the president.
All this has led many Americans to wonder: What can proponents of democracy do to prevent a stolen election?
I asked 10 legal experts and former civil rights officials to share what contested election scenario keeps them up at night—and what countermeasures could be taken if the president chooses to manipulate the election. I’ve ranked each nightmare scenario from least to most likely below.
10. Elector Apportionment Switcheroo
Sanford Levinson, professor of government at the University of Texas–Austin School of Law, lays out a scenario where a “Republican state legislature exercises its undoubted constitutional prerogative in the next few weeks to switch from the winner-take-all format to district-by-district allocation of the vote, as is currently the case in Maine and Nebraska.” For example, if enough Democrats turn out to vote in Texas’ urban centers, they might turn the state blue—unless the GOP-controlled state government decides to split their delegates by congressional districts, which are dominated by Republicans: “Why wouldn’t the GOP-controlled Texas state government take a sure number of votes rather than rolling the dice? That might, of course, be taken to be a sign of desperation, but … each side has an incentive to prevail by any means necessary. Florida, incidentally, is another state that could lock in a bunch of Trump votes if they decided to go district by district this year, and it is also completely controlled by the GOP.”
Countermeasures: If Republican-governed states alone take this step, it would be very unlikely to change the outcome of the election. Democratic governors can hold the line in the most crucial swing states. Levinson writes that this option “would presumably guarantee Trump some healthy number of electoral votes in Wisconsin and North Carolina,” both key contested states, but acknowledges that “both of those states now have Democratic governors, and that might be enough to prevent that option.”
Likelihood: Barring the use of some bizarre loopholes, this scenario is practically impossible. It would require the right state legislatures predicting in advance how the entire election is going to go and shifting their elector apportionment accordingly and in the face of heavy opposition and possible veto points from Democratic officials.
9. Pence vs. Pelosi
Yale Law professor Bruce Ackerman proposes a situation where an election that’s too close to call ultimately comes down to a dispute between the vice president and the speaker of the House: “Mike Pence, as president of the Senate, will chair the joint session of Congress that decides who won the election. Before the session begins, Trump announces that Pence will disqualify close Biden victories as plainly fraudulent, while upholding close Republican victories as entirely legitimate—making it mathematically impossible for Congress to select Biden. The president’s lawyers claim that precedents from the founding era authoritatively establish Pence’s unilateral authority on such matters. To counter this threat, Nancy Pelosi refuses to allow the joint session to take place and asserts that the plain language of the President Succession Act makes her, as speaker, ‘acting president’ on Jan. 20. This conflict on Capitol Hill provokes an escalating wave of street protests across America, and violent police measures, as Inauguration Day approaches.”
Countermeasures: Ackerman writes: “Congress should pass by veto-proof majorities a statute creating a special electoral commission consisting of five Supreme Court justices—two liberals and two conservatives, chaired by Chief Justice Roberts. The commission should investigate challenges in any contested election and determine whether disqualifications are appropriate. Pence should publicly commit to following the Roberts Commission’s recommendations, and Pelosi should allow the joint session to proceed.”
Likelihood: A lot of the below and worse would have to go wrong for us to get to this point. In a very close election where both sides have a plausible claim to victory, it becomes likelier. And as Ackerman notes, basic elements of this scenario have actually happened in American history once before.
8. No Certification for You
Daniel Carpenter, director of social sciences at the Radcliffe Institute for Advanced Study at Harvard University, is concerned about a scenario in which a Republican state legislature in a potentially decisive Electoral College state—such as Arizona, Florida, Georgia, Michigan, North Carolina, Pennsylvania, or Wisconsin—simply refuses to certify a Biden victory due to claims of fraud by Trump. “If state politicians act as authoritarians, they might respond to close election results by short-circuiting the vote count and bypassing popular majorities,” Carpenter writes in an email. “They might either withhold Electoral College slates (‘underpopulate’ the Electoral College and throw the election to the House) or install their own slates (‘falsely [populate]’).”
Countermeasures: Carpenter writes: “Most of the states that I’m thinking of have Republican legislatures but either Democratic governors (Michigan, North Carolina, Pennsylvania, Wisconsin) or Democratic secretaries of state (Arizona). Let’s imagine a scenario where Biden wins a genuine majority in one of these states but that Republican politicians try to install their own EC slate. Then Democratic governors or executive officials can draw upon federal law … to report the Electoral College slates.”
Likelihood: This scenario is very unlikely, but still plausible. “State legislatures might try to declare their own slates of electors,” Carpenter writes, “but they have to undo their own statutes to do so, so that is both difficult and brazen, for one, and second could be vetoed by governors.” At the same time—as with all of these scenarios—it could depend on the closeness of a given contest and how the “the voice of former Presidents Republican and Democratic, military leaders and corporate leaders” affect public perception of the election.
7. Foreign Attack on the Grid
Given the Russian attack on the 2016 election and the already-reported election interference by Russia in this election, University of California–Irvine School of Law professor Richard Hasen warns of an even greater election attack in 2020. “One of the nightmare scenarios I spin out in Election Meltdown is a Russian election day cyberattack on the power grid in a Democratic city in a swing state, like Detroit, Michigan,” Hasen writes. “The Russians already have experience knocking out power (they did it in the Ukraine), and Wall Street Journal reporting shows they’ve made inroads into the American power system.”
Countermeasures: “If voting takes place on election day, but the cyberattack stops tens of thousands of Detroit voters from voting, we don’t know what the remedy would be,” Hasen writes. “Would courts order a revote? Would this be stopped by the Supreme Court? Will the Michigan Legislature seek to reclaim the right to choose presidential electors on this basis? There’s not much we could do to prevent cyberattacks, but states and Congress should pass laws to deal with unexpected and sudden natural disasters or terrorist attacks that interfere with our voting rights.”
Likelihood: This is a terrifying possibility—particularly given how much damage it would do—but it still seems unlikely given all of the state and federal resources that already go into protecting our electric infrastructure from attack.
6. Phony Foreign Interference
Joshua A. Geltzer, former Obama National Security Council deputy legal adviser and founding executive director of the Institute for Constitutional Advocacy and Protection, is concerned that, if an attack like the one Hasen imagines does not come to pass, Trump could fake one. Geltzer writes: “Imagine, late on Election Day, hearing that President Trump will be holding a press conference the next morning. … Rather than conceding, he announces he’s been informed of classified intelligence indicating widespread election interference by a foreign power whose name he must keep secret, and therefore he isn’t prepared to accept any election outcome until he, as President, can work with America’s intelligence community and law enforcement to determine the validity of the vote tally.”
Countermeasures: Such an announcement would not hold any legal weight, Geltzer says, but it could still sow disinformation and chaos, particularly among his supporters. “In these circumstances, Congress must act, and quickly,” Geltzer writes. “The House (and ideally also Senate) Intelligence and Judiciary Committees—with oversight over the intelligence community and federal law enforcement, respectively—must swiftly schedule public hearings and demand the testimony of senior civil servant analysts, rather than the political appointees Trump has installed. And then they must insist on answers, at an unclassified level, that make clear whether Trump’s statement reflects real intelligence and information or whether it is—as so often proves the case with Trump—sheer invention.”
Likelihood: We can probably expect, at this point, that Trump will claim the election was stolen if he loses, and he could certainly try to blame foreign interference. (Geltzer noted Trump did make such a claim in the last election.) But it is less likely he will be able to use that claim as part of an effort to retain power in the face of an obvious election loss—Trump has low credibility, even among his own supporters, and a blatant effort to lie about this would be quickly disproved. Instead, he might use it as an excuse to explain away said loss to his supporters.
5. Weaponizing COVID-19
Vanita Gupta, former head of the Department of Justice’s Civil Rights Division and current president of the Leadership Conference on Civil and Human Rights offers the prospect that the pandemic will be used as an excuse to suddenly block voters from going to the polls. Gupta imagines an Election Day where Trump or state officials offer “a pretextual use of COVID to issue stay-at-home orders in targeted cities based on false information when it’s already too late for voters to request absentee ballots.”
She continues, “Imagine if Nov. 1 there’s a false claim—whether it’s by Trump or [other] candidates—weaponizing COVID and using it pretextually to issue stay-at-home orders in Milwaukee and Detroit and it’s too late in those cities for voters to apply for absentee ballots.” That would mean people who had planned to go to the polls might be too afraid to go, or will be barred from going, in person. Further, there is the prospect that “all of these false statements about COVID in these cities is amplified on social media and the misinformation spreads and causes people to basically sit it out.”
Countermeasures: State and local officials have veto points here in terms of controlling potential local stay-at-home orders, but if Trump threatens to enforce a federal order in a given jurisdiction with federal action, that would be harder to counter. Gupta says: “A lot of the countermeasures involve work that is happening or needs to happen right now. One of them is to have social media companies like Facebook, Twitter, Google be able to and be better about fact-checking politicians’ misinformation and disinformation and taking it down. … It requires public health officials and people with authority—public health authority—to be ready to push back on any effort to weaponize COVID and misstate the facts about COVID. It requires having poll workers that are getting accurate information, the recruitment of younger poll workers … because if poll workers then refuse to show up because of misinformation it [could result in] poll closures resulting in either massively long lines or the disenfranchisement of thousands and thousands of voters in key cities.”
Likelihood: It’s not hard to imagine Trump making a fake announcement about lockdowns. But long lines and lack of poll worker resources—and the very real threat of more aggressive COVID-19 outbreaks in the fall—pose an enormous risk whether or not Trump uses a fake announcement.
4. Federal Vote Theft
Chiraag Bains, a former attorney in the Civil Rights Division of the U.S. Department of Justice and current director of legal strategies for Demos, worries that “Trump will instigate intimidation and violence—possibly even using the military or federal agents—to suppress the vote in Black and brown communities. The Republican National Committee was recently released from a 35-year consent decree preventing it from running so-called ballot security operations to intimidate voters in communities of color. It is now recruiting 50,000 volunteers in 15 states to watch the polls and challenge voters they believe are suspicious. True the Vote, a group that seeks to make voting ‘like driving and seeing the police following you,’ is recruiting police officers and ex-military [officials] to patrol precincts in ‘inner city’ and Native American precincts.” Bains also notes that the president could claim authority under the Insurrection Act to interfere with voting: “He might allege unsubstantiated voter fraud by undocumented immigrants, foreign governments, antifa, or even Democrats as an act of ‘rebellion.’ He could invoke another part of the act that allows the use of the military to stop a ‘conspiracy’ that deprives people of their constitutional rights. The argument would be that voter fraud cancels out the votes of qualified voters. In this way, Trump might perversely claim federal troops are needed at the polls or during the canvassing of mail ballots to protect voting rights. … There are still more cynical tactics within reach. Last month, Trump sent federal agents to Portland, ostensibly to protect federal property amid ongoing racial justice protests. … What if he sends agents to Atlanta, Detroit, Milwaukee, and Philadelphia on the same pretense, just in time for the election?”
Countermeasures: “Voting rights organizations like Demos can file lawsuits under Section 11(b) of the Voting Rights Act, which prohibits voter intimidation. State attorneys general and local prosecutors can enforce state laws against interference at the polls. States have rules about who can challenge a voter’s eligibility or whether a mail ballot should count. And the use of the Insurrection Act described here might well be unconstitutional. All of these strategies, however, rely on the courts. At the federal level, 1 of every 4 appellate judges are Trump appointees, and the Supreme Court has repeatedly sided against voting rights plaintiffs. Moreover, lawsuits take time, even successful litigation would not undo the harms of voter intimidation and violence, and courts are loath to alter the results of the election. If Trump stirs up violence or deploys the military, it will take massive grassroots resistance to prevent him from hijacking our democracy. It will take all of us.”
Likelihood: As Bains notes: “If that sounds far-fetched, recall that this administration’s stated rationale for adding the citizenship question to the census was to enforce the Voting Rights Act.”
3. Fox News Calls It for Trump
Susan Hyde, a political science professor at University of California–Berkeley, writes: “A common thread in my worst-case visions for the upcoming U.S. elections in November is that American consumption of media in the U.S. has changed so drastically that there may be no source of political information that will be trusted to evaluate the veracity of claims of election fraud and foreign interference, as well as whether claims of victory by Biden or Trump are valid. … We also may face a scenario in which both candidates claim victory. … Examples include scenarios in which foreign interference swings the election outcome, Trump loses but refuses to concede, delays in official election results undermine everyone’s confidence in the process, a virtual tie between Trump and Biden, or Biden wins but Trump supporters refuse to accept the results, perhaps even using the event to instigate widespread violence against their political opponents.”
Countermeasures: Hyde suggests we need independent foreign observers to police our election. She writes: “The U.S. will again have international election observers from the Organization for Security and Co-operation in Europe’s Office for Democratic Institutions and Human Rights in November. It is not widely known that U.S. elections have been internationally observed since 2002, though it is not clear that their assessment will be widely trusted, but it should be.”
She continues: “A grand coalition of defenders of U.S. democracy, ideally involving leaders from across the political spectrum, and potentially including representatives from business, religious communities, or professional associations, could be formed now with the intention of becoming vocal in the days and weeks after the election on these critical questions … and in cases in which an election was stolen, massive protest and the mobilization of pressure in favor of ‘small d’ democracy by powerful interests in the U.S. may be necessary to defend democracy.”
Likelihood: “I worry that it is very plausible,” Hyde writes. Given everything we know about Fox News, that sounds right to me.
2. Blue Shift
Mark Tushnet, professor of Law at Harvard Law School, warns that results on election night may be misleading due to a close race and the slow counting of mail-in ballots. In 2018, late-counted mail-in ballots after Election Day caused a “blue shift” that understated the depth of the Democratic victory on election night. Trump could take advantage of this delay, aided by overeager—or friendly—media outlets. Tushnet writes: “ ‘Close’ and ‘slow’ are concepts that will be developed on the fly, and with an eye to electoral advantage, but my current version is that margins of around 10,000 votes or fewer will be [construed] to be close. And what counts as slow will depend in part upon whether states provide interim updates from election-night reported outcomes.”
Countermeasures: “Immediate popular mobilizations in the form of street demonstrations near but not in the venues where mail-in ballots are being counted (so not the ‘Brooks Brothers’ Republican riot from 2000), with the theme ‘Count every vote.’ ”
Likelihood: This scenario depends on the race tightening in the weeks ahead, the difficulty of counting mail-in ballots, and willingness of the GOP to weaponize an indecisive election night outcome against democracy. Which is to say, it is highly plausible.
1. USPS Sabotage
Jessica Marsden and Larry Schwartztol of Protect Democracy write: “Due to the COVID-19 pandemic, the number of voters requesting absentee and mail-in ballots this fall reaches historic levels. Lack of funding and ongoing changes to U.S. Postal Service practices mean that in September and October, undelivered mail piles up in the nation’s post offices. In those piles are millions of blank absentee and mail-in ballots being sent to voters, and completed ballots being returned to voting officials. Days before November 3rd, millions of voters in states across the country report that they never received the ballots they requested, and election officials report that an unusually small percentage of ballots have been returned by mail. The potential consequences of this situation would be catastrophic: Millions of voters disenfranchised because they receive their ballots too late to return by the deadline, or never receive them at all; surges of unexpected traffic at in-person polling places, creating punishingly long lines and significant strain on efforts at maintaining social distance; and increased risk of COVID spread at polling places across the country.”
Countermeasures: Marsden and Schwartztol emphasize the importance of oversight and transparency, noting that Congress should investigate, and that their organization has also filed a lawsuit to force USPS to disclose its preparations for the election. If the mail jam that is clearly already underway extends into the election, they say, officials will need to extend the receipt date for absentee ballots. “Wherever possible, governors or other state officials should exercise emergency powers provided by state law to extend that deadline,” they write. “Where state law does not provide that authority—or where state officials refuse to act—the courts have a role to play.”
Further, state bureaucrats should be “creating broad access to drop boxes, so that voters who receive ballots with insufficient time to have them returned by mail have a safe and reliable alternative. Breakdowns in mail delivery will also increase the pressure on in-person voting. That means that election officials will need to double down on ensuring that safe options exist for a higher proportion of in-person voters than many states may be planning for.”
Emergency litigation against the USPS could also help. “To the extent that slowdowns or other failures are a result of the Postmaster General’s recently announced changes in mail delivery practices—and assuming those changes remain in place in the fall—the negative impact on election mail would likely represent a violation of the federal statutes governing the postal service as well as the U.S. Constitution’s protection for the right to vote,” they write. “While time would be agonizingly short for litigation to play out if this situation materializes, negatively impacted voters as well as candidates and others who may be harmed should ask a court to impose emergency measures to ensure that the USPS operates at full capacity throughout the election period.”
Likelihood: As Marsden and Schwartztol write, “Unfortunately, extremely plausible.” The truth is, this final scenario has already begun.