No one should feel ashamed for being worried about the state of America’s electoral democracy right now. This weekend, candidate Joe Biden became President-elect Joe Biden after securing the Electoral College votes needed to win the 2020 presidential election. Ever since that moment, President Donald Trump and his enablers have endeavored to undermine the nation’s faith in those results by piling up a portfolio of quixotic legal challenges and undertaking a series of illiberal stunts to suggest he may not yield power. As a result, a black cloud has settled over the psychic landscape.
Trump has piled up a multitude of harms over the course of his tenure. During that time, he’s also racked up any number of threats upon which he never followed through. What Trump threatens now does not appear to be the total collapse of democracy, but it’s not nothing. I warned earlier this week that this would be a very dangerous period in the life of the Trump administration. So while I’ll endeavor to settle some nerves in the paragraphs to come, let no one feel like their concerns are unfounded.
Let’s start with the obvious: Trump’s paths to a second term are phantasmal. Biden is on track to win every state Hillary Clinton won in 2016, as well as Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. While recounts can shift the results of a race—typically by a few hundred votes here or there—Biden leads by at least 10,000 votes in Arizona and Georgia as of Wednesday, and by at least 50,000 votes in the other three states. There is no precedent in American history for a recount to change vote totals by those margins, and there is no reason to believe these recounts would be any different. Even Karl Rove, in an op-ed in The Wall Street Journal, concluded that Trump’s hopes were for naught. Former Wisconsin Governor Scott Walker similarly assessed the president’s chances as approximately nil.
Most of Trump’s legal efforts center on allegations of voter fraud, a vanishingly rare phenomenon in American elections. But his campaign and its allies have produced no evidence to support their hypotheses of rampant electoral misconduct in the states that Biden won. State election officials from every state told The New York Times that they found no evidence of fraud in the election. Affidavits from Trump-aligned poll watchers in a lawsuit in Michigan largely document trivial complaints, hearsay, and innuendo. Trump campaign lawyers in multiple states have personally averred to judges that they have no direct proof of fraud. All they have are racist insinuations that major cities with large Black populations like Detroit and Philadelphia are innately corrupt.
Trump’s insistence of misconduct—and the Republican Party’s willingness to indulge him—is nevertheless alarming. Elected officials who baselessly undermine public confidence in the American democratic process are stoking fear and division to satiate one man’s psychological shortcomings. They are placing their personal political instincts—and their own cowardice—ahead of their moral and ethical obligations to their constituents. And they risk inciting political violence against those responsible for conducting American elections. Let’s be clear: If another Cesar Sayoc or Christopher Hasson attacks a county election board or a state election official because of Trump’s rhetoric, Republican lawmakers will have blood on their hands.
No president in American history has sought to reject the results of an election that would throw them out of power. In these uncharted waters, it’s understandable that Americans would fear some sort of deeper threat to the republic. Trump’s authoritarian streak, as well as Republicans’ support for it, is hardly comforting. Nor are the General Services Administration’s refusal to start the postelection transition process, Attorney General Bill Barr’s sudden rewriting of Justice Department rules on investigating voting-fraud claims, or Secretary of State Mike Pompeo’s glib remark that the country will transition to a “second Trump term.” Some writers, including Vox’s Ezra Klein and MSNBC’s Hayes Brown, are stating or questioning whether a coup is afoot.
Fortunately for the country, Trump doesn’t have a legal or semilegal pathway to hold the presidency past January 20. Under the most popular theory, state legislatures could ignore election results that favor Biden and instead approve a slate of Trump electors, tipping the Electoral College in the president’s favor. Biden won five states—Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin—where Republicans control both chambers of the state legislatures. Arizona and Georgia also have Republican governors, which would theoretically give them greater leeway to rewrite state election laws, but even if Biden somehow receives no electors from either state, he would still have 279 electoral votes.
If multiple state legislatures still somehow tried to pursue this strategy, it would likely trigger mass protests and riots. Such a move would also be legally and constitutionally flawed. “Legislatures would have no legal basis for going against voters’ will,” Rick Hasen, a UC Irvine law professor who specializes in election law, wrote on Wednesday. “The Constitution does give state legislatures the right to set the manner for choosing presidential electors, but they have already set the manner: the use of popular election to assign Electoral College votes on a winner-take-all basis in every state but Nebraska and Maine.” Courts could find it easy to conclude there is no take-backsies provision in the Constitution.
What happens next? Trump often claimed before the election that he expected the Supreme Court to intervene on his behalf in litigation over absentee ballots. But most legal observers, myself included, strongly doubt that even the court’s conservatives would be willing to hand him the election. The cases that Trumpworld has managed to gin up so far are objectively weak. Moreover, there isn’t a clear mechanism by which the justices could change the outcome of the election. The only case before the justices at the moment is a dispute over mail ballots in Pennsylvania that arrived three days after Election Day. According to the state, only 10,000 ballots fall into this category; they have yet to be counted so their loss wouldn’t affect Biden’s lead, which passed 50,000 votes on Wednesday.
I am even more skeptical that a majority of justices would embrace a flawed reading of the Constitution that would allow state legislatures to unilaterally overturn presidential election results. Even beyond the Supreme Court, any pathway to overturn the election results with competing slates of electors would still be stymied by a combination of Democratic secretaries of state, Democratic governors, and the Democratic-led House of Representatives. Losing Arizona and Georgia, the only states with a GOP trifecta that were won by Biden, wouldn’t be enough to pull him below 270 votes. As The Washington Post’s Greg Sargent noted in a comprehensive takedown on Wednesday, this whole thing simply isn’t likely to happen.
Just because Trump’s attacks on the election aren’t going to keep him in the White House doesn’t mean they’re harmless. According to one poll conducted after last week’s election, roughly 70 percent of Republicans don’t think that the election was “free and fair,” reflecting the extent to which the onslaught of disinformation from Trumpworld and its conservative media allies have poisoned the atmosphere. It is possible that these numbers will improve after Biden is sworn in on January 20 and passions settle. They also might not. Americans once viewed their democratic process as the pride and envy of the world. That self-confidence is not the first thing that Trump stole from the country over the past four years, but it will likely be one of the last.