A lot of things we never thought would happen over the last four years have happened. On September 23, when President Trump publicly refused to commit to a peaceful transition of power after the election, once again, many in the nation were shocked. It was a troubling enough statement that the next day, the U.S. Senate unanimously passed a resolution affirming that "there should be no disruptions by the president or any person in power to overturn the will of the people of the United States."
As a political scientist, I too am worried that the unique circumstances of this election could result in enough uncertainty, confusion and legal opportunism to land us in a constitutional crisis. My research with the Union of Concerned Scientists has documented the threat to voter participation that the COVID-19 pandemic presents, the need for (and failure of) our federal government to implement emergency voting rights protections for this election, the way voting restrictions are correlated with bad public health outcomes, and how the results of the election could be subverted through the bias built into our electoral systems. In the worst-case scenario, the U.S. could follow a global pattern of democratic backsliding, or autocratization. Heads of government in Belarus and Hungary, for example, have recently subverted free and fair elections in those countries.
But for all of its flaws, the U.S. electoral process is relatively transparent, which makes the likelihood that we find ourselves in a constitutional crisis quite low.
First things first: the next presidential term starts January 20, 2021, and the only legitimate way to choose who gets sworn in that day for a four-year term is through an election. Every ballot—whether cast on Election Day, in-person during an early voting period, or by mail or drop box—has the same value, and the election is final when the votes get counted. There’s no legal or constitutional requirement for the count to be finished on election night. Mail-in voting is safe and secure, already in widespread use by many states, and doesn’t give either party a political advantage. And since the vote is the one and only tool we have to choose our political leaders, it’s important for everyone who can to vote, whether that’s by mail or in-person. It’s not up to candidates or politicians, it’s up to all of us. Those are the facts, and you should be immediately skeptical of any arguments that don’t acknowledge them.
But it’s worth asking how the process could go wrong.
Historically accurate forecasting models such as FiveThirtyEight suggest that President Trump has about a 25 percent of winning the Electoral College outright, and that former Vice President Joe Biden has about a three in four chance of winning. Within those projections, there is a slight, maybe 1 percent probability that the election is so close, as in 2000, that we can’t be certain of who actually receives more votes in one or more pivotal states. Then there is a larger chance—maybe 5 percent—that a close result indicates one candidate or another is the clear winner, but then litigation, diversions and other partisan maneuvers, including use of conspiracy theories about voter fraud, are deployed to stop ballot counting or otherwise manipulate the Electoral College outcome.
Even in that situation, the president lacks the power to “get rid of the ballots” as he suggested—at least not without a great deal of cooperation from state election officials and legislatures, judges, leaders in his own party and, most importantly, voters themselves. In that unlikely event, I fully expect voters across the country to be called to action, to rise up in peaceful civic demonstration, and to strike down with righteous fury any attempt to steal this election.
To reiterate: we need to vote, be prepared to demand that all votes be counted, and pay close attention to the election as it unfolds. Here’s what I’m paying attention to before, on and after Election Night.
Thanks to the work Michael McDonald, we have the 2020 General Election Early Vote Statistics, where I’ll be tracking three sets of crucial data in pivotal states: the number of mail ballots that have been requested, the number returned and the number that have been rejected. States have different dates for sending and processing ballots, but this is the go-to site for seeing how votes are being processed, and in many cases you can see how many votes in your county have been requested, how many people are taking advantage of early voting, and how many are being rejected. As of this writing, over half a million votes have already been cast in the 2020 election.
I’ll also be keeping track of lawsuits at the Election Litigation Tracker, a joint project of Election Law at Ohio State and SCOTUSBlog. Pending cases in the pivotal states of Wisconsin, Michigan and Pennsylvania are reviewed here, as well as new litigation when it emerges after Election Day. These and other resources are available for voters to monitor election results, identify challenges in states as they emerge, and increase the transparency of the electoral process for all.
At UCS, we are using these and other resources to provide historical and comparative analysis of a set of pivotal counties, assessing election results by comparing outcomes with 2016, identifying where there are likely to be delays in processing ballots, and monitoring troubling trends, such as racial disparities in ballot rejection. Many voters are new to vote-by-mail this year, and we expect higher error rates, but we will be able to identify outliers and irregularities in spoiled or rejected ballots as they emerge. Similarly, we can anticipate where the vote count for candidates is likely to change considerably after election night. Being prepared with these statistics will help voters and advocates check potential bad actors from taking advantage of uncertainty to cast doubt on the outcome.
Finally, I’ll be watching the media, election officials, and voter reactions to the results. The media need to be aware of the circumstances of this election and resist the temptation to call victory early. Audiences need to be prepared to be patient; it is important that we know the winners for certain, not that we are the first to “know” who won. Local election officials are going to need to work harder at maintaining transparency, updating results as often as possible while providing an accurate picture of the process. In particular, officials must prioritize contacting voters with ballot problems, providing every opportunity to have votes counted, and updating that information. Voters too must be alert and aggressive in defending the sanctity of their votes, making sure their registration and contact information is up to date, that they vote safely and securely, and that they monitor the status of their ballots.
This is going to be a difficult election. But we have the tools, the technology, and the right to ensure that everyone has an equal opportunity to cast a vote and have it counted. Above all else, we have the political will to see this process through. Afterward, I hope that we take a moment to celebrate the continued functioning of democracy, before getting to work on reforming and retrofitting our electoral system so that we never find ourselves in this predicament again.