It has been dubbed “the election that could break America”. On 3 November voters decide whether Donald Trump or Joe Biden is their next president. But this time the stakes are even higher than the simple question of who resides in the White House.
There is a widespread sense that the fate of the world’s oldest constitutional democracy hangs in the balance. The US has already been shaken in 2020 by the deadly coronavirus pandemic, economic collapse and a society-wide reckoning over racism. Now comes an election in which voter suppression, foreign interference, online disinformation and a bitterly contested supreme court vacancy offer a recipe for chaos.
Most threatening of all is an incumbent president who has spent months spreading disinformation and discrediting what he calls “the greatest Rigged Election in history”. Asked this week if he would commit to a peaceful transfer of power, he declined, saying: “Well, we’re going to have to see what happens. You know that. I’ve been complaining very strongly about the ballots. And the ballots are a disaster.”
Should Trump refuse to leave office, America could be plunged into a constitutional crisis and find itself in unchartered territory. Whatever the outcome, there is a high risk that a significant chunk of the population will not accept the winner as legitimate, leading to angry street protests in a country flush with guns and a fear that, after decades of corrosion, a system that was once the envy of the world is beyond repair.
“I never dreamed I would live through our democracy being this volatile and vulnerable and fragile,” said Moe Vela, a political strategist and LGBTQ and Latino activist. “I never dreamed it could ever happen. It was not in the realm of possibility and Donald Trump has taken us to the brink of the demise of our democracy. It really is that serious.”
Mail-in voting and voter suppression
The election is taking place amid America’s worst public health crisis for a century. A record number of voters are expected to use mail-in ballots so they can avoid the health risks of queuing to vote in person on 3 November. Five states – Colorado, Hawaii, Oregon, Washington and Utah – already carry out elections almost entirely by mail.
But the US is a patchwork of different rules and practices and other states are scrambling to prepare. Louis DeJoy, the new postmaster general and a Republican donor, has overseen measures that make voting by mail harder rather than easier, including the removal of post boxes from streets and mothballing of sorting machines. After an outcry, DeJoy said he would suspend cuts until after the election, but it may be too late to reverse the damage.
Trump has been transparent about his motives. He said he was withholding funding from the postal service as a way of limiting voting by mail, arguing that it is prone to fraud, a claim that has been thoroughly debunked.
We’re already seeing robo calls going out in places like Pennsylvania that dissuade people from voting early
But attacks on mail-in voting is the only the most egregious example of voter suppression, a tactic as old as American democracy itself that disproportionately affects people of color – statistically far more likely to vote Democratic.
For example, in Florida, a critical swing state, voters decided in 2018 to re-enfranchise 1.4m people who had lost the right to vote because they had criminal convictions. But Republicans have effectively neutralized that move, meaning that more than 700,000 people are likely to be denied the vote in November.
Neil Sroka, spokesperson for the progressive group Democracy for America, said: “Donald Trump has his fingers on the levers of power and is clearly manoeuvring them in every way possible, legal and arguably illegal, to try to secure a narrow victory in November.”
“The threat of voter suppression is very real. We’re already seeing robo calls going out in places like Pennsylvania that dissuade people from voting early or voting absentee or putting out misinformation.”
The ‘red mirage’
Opinion polls show that Democrats are far more likely to use mail-in voting, whereas Republicans tend to favor queuing up on election day. The battleground states of Michigan, Pennsylvania and Wisconsin all prohibit election officials from beginning to process mail-in votes until election day. Thus Republicans votes are likely to be counted first, leading to warnings of an election night “red mirage” in which Trump appears to build big early leads.
It will look like Donald Trump was in the lead and he fundamentally was not when every ballot gets counted.
It is feared that the president will seize that initial narrative and declare a premature victory and then, if mail-in ballots gradually turn the tide and produce a Biden victory days later, claim that the election is being stolen from him.
Josh Mendelsohn, chief executive of Hawkfish, a Democratic data and analytics firm, told the Axios on HBO programme: “We are sounding an alarm and saying that this is a very real possibility, that the data is going to show on election night an incredible victory for Donald Trump.”
“When every legitimate vote is tallied and we get to that final day, which will be some day after election day, it will in fact show that what happened on election night was exactly that, a mirage. It looked like Donald Trump was in the lead and he fundamentally was not when every ballot gets counted.”
The long wait for a result could allow Trump to make mischief and flood social media with conspiracy theories. Bill Galston, a former policy adviser to Bill Clinton, said: “What worries me most is that the president of the United States will decide, through reasons of his own, to impugn ballots that are not counted on election night.”
“Given the fact a record number of ballots will be cast by mail in this election, and there appears to be a systemic difference with Democrats voting much more by mail than in-person, impugning the validity of mail-in ballots would be the moral equivalent of saying that only only votes cast in person are valid, which is a prescription for electoral fraud on a massive basis such as we’ve never seen in this country. If you ask me what my worst nightmare is, that’s it.”
There are even concerns that Trump and his conspicuously loyal attorney general, William Barr, could seek to disqualify mail-in votes. John Heilemann, a political analyst, told the MSNBC network: “Don’t rule out of your mind the possibility that the president on election night says, ‘I’m going to go to Pennsylvania and I’m impounding all of the uncounted ballots so far,’ and sends federal marshals into polling places where votes are being tabulated and tries to impound those ballots.”
Facebook has promised to label any posts by candidates or campaigns claiming victory, pointing out that official results are not yet in. The scenario also puts tremendous pressure on the media to avoid jumping the gun, as some did on the night of the 2000 election between George W Bush and Al Gore.
Intelligence agencies agree Russia attacked American democracy in 2016 with the intention of sowing discord, helping Trump and hurting Hillary Clinton. Last month the National Counterintelligence and Security Center warned that Russia is again trying to “denigrate” Biden, while China and Iran are also seeking to meddle.
Although Trump’s administration has sanctioned senior Russian officials, the president himself has never indicated that he takes the threat seriously. Instead he has repeatedly denounced the investigation of special counsel Robert Mueller into his campaign’s numerous contacts with Russia as “a hoax”.
In 2016 the Russian focus was hacking and social media disinformation. This time Max Bergmann, a senior fellow at the Center for American Progress thinktank in Washington, said his biggest concern this time is an attack on infrastructure.
“The threat level has to be blinking red,” he said. “We know from the Trump administration intelligence community that Russia is interfering in this election. We know that from briefings that have occurred over the past year.
“One of the things that we’ve actually learned a lot about in the last year is the threat from Russian cyber actors against the actual physical infrastructure of the election system, the voting machines, the voter databases. Coronavirus only makes it more of a threat because, depending on how the system is set up, you may have shrunk the number of polling places and reduced the number of poll workers, forcing people to vote in smaller and fewer precincts.”
Bergmann offered an example: “The University of Georgia says we’re going to close down our precinct; then you’re going to send all the students to another precinct; if you’re the Russians and you see this, that’s a precinct where you’re trying to help Trump win and you can basically cause chaos on election day by making it so that everyone with an ‘R’ in their name shows up and their name is misspelled on the voting rolls, causing huge lines.”
Supreme court vacancy. minority rule and loss of faith in democracy
The recent death of supreme court justice Ruth Bader Ginsburg threw a match into the electoral tinderbox. A furious political battle is under way on Capitol Hill, with Trump set to replace the liberal Ginsburg with a conservative before election day.
In the short term, there is an outside chance that the new justice could play a critical role in the outcome of the election. The close contest between Bush and Gore in 2000 was resolved in Bush’s favor by the supreme court voting 5-4 along ideological lines. If the 2020 election is similarly disputed, the court could again be the final arbiter.
The haste to replace Ginsburg has also fueled a deeper sense of democratic deficit, a growing chasm between rightwing white minority rule and the values of the diverse majority. Trump lost the popular vote to Hillary Clinton by nearly 3m ballots, and his latest supreme court appointment will mean that a majority of the justices were nominated by a president who did not initially win the popular vote.
In addition, the Republican Senate “majority” represents about 15m fewer people than the Democratic “minority” because states have two senators each, irrespective of population size. So Montana, which has a population of 1m, has the same representation as California, population 40m.
The upshot could be a supreme court with a 6-3 conservative majority stripping reproductive rights from women despite surveys showing that seven in 10 people oppose overturning the landmark 1973 ruling Roe v Wade. Healthcare access, voting rights and environmental protections are also at stake. This could lead to profound disillusionment and civil unrest.
Sroka of Democracy for America said: “It is probably the most significant threat to American democracy in generations because what essentially you are saying is, ‘The will of the voters be damned, we as a conservative minority in this country have the power to dictate the interpretation of laws and the appointment of judges and so we’re going to do it, damn the consequences’.”
He added: “We’ve been teetering along the road towards everyone slowly realizing that there needs to be mammoth systemic reforms in our politics. The decision to defy the will of the voters and force a rightwing justice on this court strikes me as the straw that would break the camel’s back in terms of people’s willingness to accept what is increasingly anti-democratic agenda in this country.”
What we know about Donald Trump is that he hasn’t done anything in his life without cheating.
The nightmare scenario: Trump refuses to leave office
Unlike his predecessors, Trump has repeatedly declined to commit to accepting the election outcome, while also “joking” about seeking a third term even though the constitution forbids it. He has claimed: “The only way we’re going to lose this election is if the election is rigged.” Observers predict that he will use every advantage of incumbency to cling to power.
Rashad Robinson, president of Color of Change, a racial justice organization, said: “What he does have on his side is that he controls the federal infrastructure and so the question will be, does he use that federal infrastructure to cheat? And what we know about Donald Trump is that he hasn’t done anything in his life without cheating.”
The dispute would play out in Congress, the courts and the streets. Republicans have built a $20m war chest to spend on what could be a prolonged legal fight; the Biden campaign has also built a massive legal team including Eric Holder, the former attorney general.
Both sides are aware of constitutional loopholes ripe for exploitation. An 1887 law, supposed to show how to resolve a disputed vote, is disturbingly ambiguous. The vagaries of the electoral college could also come into play.
On 14 December, votes in the electoral college are due to be cast by “electors”, groups of state party leaders and elected officials. Normally, these reflect the popular vote in the state. But this week the Atlantic magazine reported that the Trump campaign is plotting to enlist Republican-controlled state governments to handpick its own local electors to override the popular vote in battleground states.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power,’” a Trump campaign legal adviser told the Atlantic. “We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state.”
The victory needs to be so resounding that it’s a message that cannot be interpreted in any other way.
Mass demonstrations would surely follow. Progressive groups such as Stand Up America have been preparing to mobilize huge street protests to defend the valid election result. But Trump has shown his willingness this summer to use the power of the state to crush peaceful demonstrations, while his own supporters have brandished and, on occasion, used weapons. Extremists and militias from the far left and far right could stoke violence.
Ultimately, there is no playbook for what happens when a president refuses to leave office. If both Trump and Biden arrived at the US Capitol on inauguration day, expecting to be sworn in, the independence of the military and secret service would be tested as never before.
Biden has said he is “absolutely convinced” that the military would escort Trump from the Oval Office if it comes to that – a concept that seems to belong to tinpot dictatorships and is scarcely believable the United States.
After the cascading miseries of 2020, the election can seem like a runaway train hurtling towards a cliff edge. Many Democrats suggest the only way to stave off disaster is ensure that Biden wins by a landslide so that not even Trump loyalists can genuinely dispute the outcome.
Vela, the strategist who is a former senior adviser to Biden at the White House, said: “The victory needs to be so resounding that it’s a message that cannot be interpreted in any other way. The stronger the outcome is in favor of Joe Biden, the less chance that Trump will have to make his argument. But I do fear he will go down kicking and screaming.”