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How to Steal an Election

Four ways Trump can still win, 89 days out.
August 6, 2020
Featured Image
US President Donald Trump speaks to the press in the Brady Briefing Room of the White House in Washington, DC, on August 3, 2020. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

If you want the bad news all at once, the TL/DR is this:

(1) Trump can use normal tactics to win outright or make the race closer.

(2) COVID problems with election administration can take up to 6 percent off of Biden’s margin.

(3) Trump and the GOP might use historically unprecedented tactics to stay in power despite losing.

(4) pro-Trump foreign actors will be using similar but more aggressive tactics to their 2016 interference.

The combination of these tactics gives Trump a solid chance to stay in power. So let’s talk about them.

(1) Trump can turn the election around in a historically normal way. 

Even the most Biden-bullish models give Trump a shot of winning fair and square (the Economist, for instance, puts Trump’s odds at 1-in-10).How would that happen?

It would be something like 1988. Michael Dukakis was +17 points in July, but George H.W. Bush won by +8; a 25-point swing in ~3 months. Biden’s lead today is much smaller, roughly 8 points. To be sure, there are differences between 1988 and 2020 but Mike Murphy (who was part of the Bush team that engineered that comeback) wrote in The Bulwark:

There are just enough loose bolts on the Biden Express to make wise Trump opponents wary and encourage them to not let up one bit. … the three biggest defining events of the Biden campaign are yet to occur:

  • The VP choice
  • The Convention
  • And the Debate

Each could present an opportunity for the flailing and so far incompetent Trump campaign to seize a Biden misstep and wrench the campaign focus away from Trump’s bungling of the COVID-19 pandemic and onto a hostile examination of Joe Biden. Biden is unlike Mike Dukakis in that he has been a major national figure for a long time. But he is like Mike Dukakis in that, at this point in the race, he is not yet very well-defined.

If Biden’s national numbers fade in the face of a GOP onslaught or his own mistakes, it becomes possible for Trump to assemble an Electoral College victory by flipping some close states he lost to Clinton (e.g., New Hampshire, Nevada, or Minnesota) or holding the “Blue Wall” and “Sun Belt” states where Biden has recently been ahead.

(2) COVID might damage election mechanics in ways that disproportionately hurt Democrats. 

Even without Republican dirty tricks, the COVID crisis will alter the mechanics of the election this year in ways that might disproportionately hurt Democrats. Systems of vote-by-mail and in-person voting, overwhelmed by COVID, could disproportionately hurt Biden by as much as 6 percent, meaning that his current 8 percent national lead could “really” be only 2 percent when those issues are taken into account.

It is much easier, obviously, for Trump to overcome a 2 percent lead, which could theoretically increase Trump’s odds of winning to as much as 1-in-3. Which is about where the election betting markets have it.

(2a) COVID will hurt in-person voting among Democrats more than among Republicans.

The coronavirus crisis could disproportionately damage Democratic turnout in a few ways.

Example: The Trump campaign has successfully made views of the virus partisan, with Democrats far more likely than Republicans to take the disease seriously. This means that Democratic-leaning voters are much more likely to express concerns about the safety risks of voting in person. While this worldview might ultimately get more Republicans sick or killed, in the short term it means that the GOP might have an easier time getting voters to the polls on Election Day.

Another problem is that the COVID crisis is about to cause an avalanche of evictions that will hamper voter turnout throughout the country. This will hurt Democrats disproportionately because renters—already a lower-turnout group than homeowners on average—lean Democratic in their voting behavior.

A third problem comes from the concentration of Democrats in cities. Cities often have dense populations around polling locations and longer voting lines than suburbs—even in the best of times. COVID, by deterring many older poll workers from volunteering, will exacerbate this situation.

In Wisconsin in April 2020, for instance, turnout dropped 4 percent statewide versus April 2019. But it dropped by 37 percent in Milwaukee, where 175 out of 180 polling stations were closed due to staffing problems.

Since cities produce a massive number of net Democratic votes, that kind of selective damage to turnout in big cities could take another 3 percent to 4 percent off of Biden’s lead in states such as Pennsylvania, increasing Trump’s odds of winning still further.

(2b) Overwhelmed vote-by-mail operations might take ~2 percent off of Biden’s margin.

With Democratic in-person voting disproportionately impacted by COVID, the expected surge in voting by mail is likely to be more important for Democrats than Republicans. This is presumably why

Even without sabotage, however, the expected surge of mail-in voting will create logistical disasters that might take up to 2 percent off of Biden’s margin, as Dave Wasserman of the Cook Political Report explains:

[T]he biggest risk of a pandemic-induced crush of mail-in votes isn’t fraud, an extraordinarily rare occurrence in American elections. The real danger is a perfect catastrophe of administrative overload, postal delays and voter error that could lead to millions of absentee ballots not counting. And this year, unlike the past, those ballots are likely to be overwhelmingly Democratic. . . .

[M]any of the highest-stakes Electoral College states face steep logistical curves as they rush to adapt to the COVID era: in 2018, mail-in votes were just 6 percent of all votes cast in Wisconsin and Georgia, 4 percent in Pennsylvania and 3 percent in North Carolina.

If Wasserman is correct that these problems with vote-by-mail could reduce Biden’s margin by about 2 percent, how big of a deal is that? Well, that is more than enough to have swung 7 Electoral College contests, 12 Senate races, and 71 House races in the past decade.

If you add 2 percent to Trump’s margin, Trump’s odds of winning the Electoral College go up by ~10 percent depending on the model.

(3) Trump and his allies may use openly authoritarian tactics to keep power. 

For a long time, the idea that Trump would try to keep power even after losing was considered absurd catastrophizing. Jonathan Turley, for instance, the George Washington University law professor who testified against Trump’s impeachment, wrote a column in April chiding Joe Biden for suggesting that Trump would try to delay the election. Turley wrote that the idea of Trump trying to delay the election “should be sold as a set including a tin foil hat and an electromagnetic ghost detector.”

That did not age well. Trump has doubled down on his lies about vote-by-mail security and suggested that those concerns demand a delay of the election. This suggestion led Steven Calabresi (the arch-conservative co-founder of the Federalist Society who voted for Trump in 2016, attacked the Mueller investigation, and spoke out against impeachment) to write in the New York Times:

I am frankly appalled by the president’s recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.

On the center-left, skeptics such as Fred Kaplan at Slate have assured us that the system would not allow Trump to stay in power if he loses. Kaplan’s claims are nearly as embarrassing as Turley’s. Kaplan sets up a strawman of Trump losing the vote in the Electoral College, and then refusing to leave office on January 20, 2021 when the Constitution mandates a transfer of power. Kaplan dismisses this scenario as untenable—because it is. As the Atlantic summarized:

If the Electoral College certifies Joe Biden the winner when its votes are counted in Washington, D.C., on January 6, then at noon on January 20, Donald Trump ceases to be president. His signature loses all legal effect, the officer carrying the nuclear football walks away, the chairman of the Joint Chiefs of Staff does not take his call.

But war games set up by the Transition Integrity Project, a nonpartisan group founded by Rosa Brooks of Georgetown Law School and Nils Gilman of the Berggruen Institute, found other ways Trump could bend the rules to keep power, especially if the election is close.

As Max Boot, who participated in the war games, wrote in the Washington Post:

I was on Team Trump and, needless to say, we did not concede defeat. Instead, we went to work, ruthlessly and unscrupulously, utilizing every ounce of power at our disposal, to secure the 10 Electoral college votes to swing the election. We focused our attention on three of the swing states that Biden won in our scenario—Michigan, Wisconsin and Pennsylvania—because, in all three, Republicans control both branches of the legislature. Normally, the governor certifies the election results, and in all three states the governor is a Democrat. But there is nothing to prevent the legislature from certifying a different election outcome.

Something similar happened in the 1876 presidential election: Democrat Samuel J. Tilden was leading on Election Day in both the popular vote and in the electoral college, but the results were contested in three states. [Subsequent moves gave Republican Rutherford B.] Hayes a 185 to 184 majority in the electoral college, and the presidency along with it.

David Frum, who worked in the George W. Bush administration, also attended the war games, and summarized them as follows in the Atlantic:

The worst news is that, faced with presidential lawlessness, few of the participants at the Transition Integrity Project found effective responses. The courts offered only slow, weak, and unreliable remedies. Street protests were difficult to mobilize and often proved counterproductive. Republican elected officials cowered even in the face of the most outrageous Trump acts. Democratic elected officials lacked the tools and clout to make much difference. Many of the games turned on who made the first bold move. Time after time, that first mover was Trump. . . .

Trump’s side possessed—and used—important tactical advantages.

Those advantages start with the institutional powers of the presidency, notably the power to federalize the National Guard and take military control of state voting sites. They include also the asymmetry of the U.S. party system, and especially the fiercer team-mindedness of Trump loyalists and pro-Trump media.

The most persistent and powerful advantage, however, was the overconfidence of the legally minded Biden team that the Trump team would respect some norms and limits on its behavior. That expectation was again and again refuted by experience.

Based on these war game scenarios and other analysis, realistic categories of tactics include:

Violent voter suppression: Since the 2017 Unite the Right rally in Charlottesville, right-wing militia groups have organized online and in-person to harass and intimidate domestic critics of President Trump.

In addition, for the first time in four decades, the GOP is legally allowed to spend tens of millions of dollars to deploy tens of thousands of “poll watchers”recruiting especially off-duty soldiers and law enforcement—to intimidate voters in cities and in communities of color by threatening them with arrests and fines for voting “improperly.” (This tactic will be allowed this cycle because the 1981 consent decree with the GOP expired recently).

These tactics—the far-right militia groups in camo, and the off-duty cops as “poll watchers”— be augmented by Department of Homeland Security agents authorized for deployment by Attorney General Bill Barr. Some observers believe that the federal law enforcement “surge” into cities such as Detroit, Cleveland, and Milwaukee is designed to prepare for vote suppression in cities and among voters of color. In a worst-case scenario, DHS agents could start arresting citizens in response to violent “provocations” incited by right-wing provocateurs (who have already staged attacks in Virginia, California, Minnesota, and throughout the country). If polling-place closures lead to long lines in Democratic areas, these combined forces could drive many or all voters away before they get a chance to vote.

Republican state legislatures handing their states’ electoral votes to Trump: The Constitution gives each state’s legislature the sole power to set the “Times, Places and Manner of holding Elections.” In every swing state, that authority has been delegated to some combination of election supervisors and precincts at the local level, to be certified statewide by the secretary of State and the governor.

That said, some conservatives have begun arguing that the state legislature could bypass that process by passing a new resolution stating (because of “security risks” or some other pretext) that only certain types of ballots be counted.

This could theoretically be done immediately prior to the election—or even immediately after the election, in a fashion that would disqualify provisional and mail-in ballots.

This could swing the election in any state where Trump is ahead in the count before counting absentee or provisional ballots. In a particularly brazen version, the state legislature could simply declare that Trump won that state. For the 2020 election, the GOP holds a majority in both legislative chambers in each of the battleground states: Arizona, Pennsylvania, Michigan, Wisconsin, Florida, and North Carolina. (The GOP also controls both chambers of the state legislature in Ohio, Georgia, Texas, and Iowa, which are currently closer than they have been in many years.)

For any state legislature to undertake this action would be unprecedented, dangerous, illegal, and anti-constitutional. But in Wisconsin and North Carolina, GOP legislators have already proven that they will not hesitate to throw out democratic norms in order to keep power.

What would happen next? Democrats and patriotic Americans would sue, the lawsuits would go to the United States Supreme Court, and at which point the fate of the election will be up to nine justices and the end result will be a president viewed as factually illegitimate, regardless of the result.

Republican state executives delaying the vote counting: Even if the state legislature does not directly intervene, the Republican governors of critical swing states (Florida, Arizona, Ohio, Georgia, Texas) could try to intervene to slow their state’s vote count or to prevent their state from sending any electors to the Electoral College.

Again, the pretext for this intervention would be bad-faith complaints about vote security and integrity. (Which, again, the president is already making.) If one of these states was on pace to put Biden over the 270 threshold, the Republican governor could attempt to contest every ballot with the goal of postponing a result so that neither candidate could reach 270. At which point, the election would be thrown to the U.S. House, where 26 states have a majority-GOP delegation. Meaning that Trump would get re-elected.

(4) Hostile foreign or private actors could affect the outcome.

It is now overwhelmingly clear that Russia’s extensive intervention in 2016 was directed at helping Donald Trump.

Recent evidence collected by the Brennan Center suggests that Russian interference has become more brazen in the run-up to 2020. We don’t know precisely how the Russians will intervene, but possibilities range from social media amplification of anti-Biden misinformation; to laundering money into the Trump campaign coffers via small dollar contributions from fake social media accounts or other proxy groups; to hacking voter rolls or voter tabulation software to scramble Election-Day logistics still further.

In all of these cases, the easiest solution is for the margin in the popular vote to be as large as possible.

The bigger the margin, the harder it is to cheat.

But we have arrived at a place where thinking through doomsday scenarios is not only prudent, but necessary. Because the current commander-in-chief has taken the unprecedented steps of (a) claiming that the election results will be fraudulent and (b) refusing to say that he will abide by them.

And the president’s party has demonstrated over the course of four years that it has abdicated any respect for laws, rules, or norms, and is merely a vassal for this aspiring authoritarian.

Dmitri Mehlhorn

Dmitri Mehlhorn is an attorney, investor, and entrepreneur who co-founded Investing in US.