Jurisprudence

The Biggest Battle for a Safe, Fair Election Is in Our Heads

Legally speaking, America knows how to do this. What Trump is trying to disrupt is our faith in that system.

A silhouette of a human head with ballots, voting signs and stickers, Donald Trump, and Joe Biden inside of it.
Photo illustration by Slate. Photos by Tasos Katopodis/Getty Images/iStock/Getty Images Plus, AndreyPopov/iStock/Getty Images Plus, Joseph Prezioso/AFP via Getty Images, and Olga Kurbatova/iStock/Getty Images Plus.

Public anxiety over the possibility that President Donald Trump may refuse to accept an electoral loss in November is now reaching a fever pitch. The concern is, alas, valid: Trump has shown time and again that he’s uninterested in playing by the rules of our democracy and that he’s unable to accept the notion that he could be wrong, much less suffer a loss without insisting it’s the result of someone else cheating. That’s why it’s urgently important to understand where the key uncertainty lies heading into November: It’s not legal; it’s mental. The fact is that the law has remedies and fixes for the most likely ways in which Trump might attempt to resist defeat at the polls. The law, by and large, should be able to handle what may be coming. The real threat, then, lies not in formal guardrails but in our confidence. The threat is that Americans accepting those legal answers as legitimate is shaky, and that is where Trump can do the most serious damage.

We’re hardly naïve or sanguine when it comes to how this election and the transition that follows might play out. Indeed, we were two of the earliest commentators to raise concerns that Trump might refuse to heed the type of clear electoral defeat that any other candidate in recent memory would acknowledge. It’s not Cassandra-like wailing to acknowledge that there’s real cause for concern here. But we need to be focused on where the biggest problems are. Because, sure, there’s legal uncertainty around the November contest. There are laws that could be exploited—abused, really—in unprecedented ways this election cycle. These are little-known laws—laws that, for example allow a state legislature to declare Election Day “failed” and to concoct its own method of appointing electors, and laws that describe in inscrutable terms how Congress should resolve any dispute over competing slates of electors sent by the same state—and, to be sure, they are susceptible to manipulation and, in turn, competing interpretation. There are already a slew of contested election-related lawsuits working their way through courts nationwide, and perhaps the only absolute certainty about the 2020 election is that there’s a lot more litigation to come.

Yet, to a larger degree than you may think, when it comes to the most likely ways in which Trump might resist a valid defeat at the polls, it’s not the legal but the cognitive aspects that are poised to sow the greatest chaos. Recognizing the most glaring threats requires a look back at Trump’s most brazen moments of resistance to election results, all of which are largely forgotten now. Consider three.

The first was the only major electoral defeat of Donald Trump’s relatively short political career. In February 2016, Trump lost the Iowa caucuses to Sen. Ted Cruz. This was, at the time, seen as a major setback to Trump’s bid to secure the Republican nomination for president. The very next day, Trump tweeted that Cruz didn’t really win in Iowa but “illegally stole it,” and called for a redo. That’s right: The only major political defeat Trump has suffered he has, within 24 hours, claimed was stolen was from him.

The second revealing moment occurred over two years later, as the 2018 midterm elections approached and the polls suggested potential disaster for the Republicans. Trump tweeted what still ranks as one of the strangest tweets of his presidency, suggesting that the Russians were “pushing very hard for the Democrats”—yes, the Democrats—in November 2018. No one had said this—not the intelligence community, not law enforcement, not the media, no one. Yet Trump appeared to be laying the groundwork for calling into question the midterm results as skewed by foreign election interference should his party suffer a debilitating defeat at the polls.

Trump’s third moment of resistance to election results came in the wake of those very midterms. Election night left two prominent Republicans running in Florida—one for governor, one for senator—with a slim lead, but there were more ballots to be counted. As that counting continued, Trump tweeted yet again, baselessly claiming that “large numbers of new ballots showed up out of nowhere” and that America “Must go with Election Night!” Never mind that ballots remained uncounted; Trump simply wanted to stop counting when the results conformed to what he wanted to see.

All three of these all-too-Trumpian moments give us reason to worry about his likely forthcoming claims that the 2020 results are invalid if Trump’s the one who loses. Indeed, Trump already has laid the groundwork for claiming a stolen election, by suggesting fraudulent voting (this time by mail-in ballots and drop boxes) is afoot and casting doubt on any vote-counting that persists past Election Day—which is a virtual inevitability. But for all the legal complexity that can surround an election, the law is quite clear on what to make of such claims. If Trump echoes his post-Iowa call for a recount, there’s law in each of the 50 states that tells us precisely when a recount is justified. Often, it’s the margin of difference between the candidates that determines whether the trailing candidate is entitled to a recount. This process isn’t a free-for-all that can be made up as the candidates-turned-litigants see fit. Any dispute at the margins can and should be settled in court.

If Trump claims there’s been election fraud—whether by foreign interference, mail-in ballots, drop boxes, or whatever he may dream up—our constitutional structure allows for swiftly determining whether such claims are true or bogus. The House of Representatives can immediately call a hearing and subpoena anyone who would have information on the veracity of Trump’s claims. For claims of foreign election interference, for example, that would mean getting key intelligence community officials—not political leadership but career civil servants—in front of the House Intelligence Committee in open session, at an unclassified level, to explain whether there’s any basis for such allegations. For claims of fraud through mail-in ballots or drop boxes, it means getting state election officials in front of Congress to confirm or deny what Trump has alleged. Here, too, our legal system has a way of obtaining the truth—including aggressive subpoena enforcement by Congress if necessary. The truth, in other words, is knowable, and no matter how often Trump suggests that it’s not, we have legal systems for unearthing it.

And as to Trump’s new-and-old claims that all vote-counting must end on election night—well, he’s simply full of it. That’s not the law. The law is that vote-counting ends when all legitimate ballots cast that should be counted have been counted. When certain ballots can begin to be counted is determined by state law; so is whether certain ballots should be counted, including based on how close the race is. But the idea that all voting simply ends on election night—or at any premature point, just because Trump likes where the numbers are—is legal hogwash.

So the real challenge isn’t legal; it’s cognitive. Trump, actively aided by Attorney General William Barr, has devoted months to undertaking a domestic influence operation to lead Americans to distrust the legitimacy of any election in which Trump doesn’t win. For this to work, they need you to distrust the legitimacy of the laws that provide answers to the scenarios discussed above. Skilled lawyers and even judges can explain why a recount isn’t justified, or why ballot-counting must continue, but Trump has primed the pump for many Americans not to care what lawyers and judges and election statutes and even the Constitution may say. (Consider that Trump and Barr continue to cast unfounded aspersions on mail-in ballots, even as the Trump campaign was able to provide no evidence whatsoever to back up those claims when asked to do so by a federal court in Pennsylvania.) Instead, Trump has many Americans prepared to reject any such explanation as election theft, or a rigged system, or a hoax or fake news. So it is bolstering faith in elections that may prove to be the real challenge: not obtaining a legitimate election result but convincing wide swaths of Americans that it is, in fact, legitimate.

That’s a cognitive challenge of profound proportions. But it’s also—with two months left before the election—a cause for optimism, because there’s still time for action. It means that the power to make this election work isn’t just in the hands of the lawyers, or the judges, or even the Congress that will, in a special January session, ultimately certify the presidential election results. That power is in the hands of the rest of us. It’s on all of us to help explain to our family, our friends, our colleagues, our neighbors—everyone who’ll listen—that there’s fixed and reliable black-letter law here to guide us through key hoax and disaster scenarios for which the president is trying to prepare us. That means, in turn, that the fewer Americans who accept Trump’s attempt to delegitimize election results he dislikes and the institutions—like the courts and the intelligence community—that can explain why those results are valid, the stronger our nation’s cognitive election infrastructure is heading into November.

Trump’s a lousy lawyer. But he’s a devilishly good brainwasher. Let the lawyers fight the legal battles, which are already fierce and sure to get fiercer. It’s on all of us to fight the mental battles.