POLITICAL
MEMO
Trump Stress-Tested the Election System, and the
Cracks Showed
Even in the absence of a questionable outcome or any
evidence of fraud, President Trump managed to freeze the passage of power for
most of a month.
Key state officials resisted President Trump’s
entreaties to disenfranchise huge numbers of voters, but Mr. Trump did identify
cracks in the electoral system.
Alexander
Burns
By
Alexander Burns
Nov. 24,
2020
As
President Trump’s efforts to overturn the 2020 election have steadily
disintegrated, the country appears to have escaped a doomsday scenario in the
campaign’s epilogue: Since Nov. 3, there have been no tanks in the streets or
widespread civil unrest, no brazen intervention by the judiciary or a partisan
state legislature. Joseph R. Biden Jr.’s obvious victory has withstood Mr.
Trump’s peddling of conspiracy theories and his campaign of groundless lawsuits.
In the end
— and the postelection standoff instigated by Mr. Trump and his party is truly
nearing its end — the president’s attack on the election wheezed to an
anticlimax. It was marked not by dangerous new political convulsions but by a
letter from an obscure Trump-appointed bureaucrat, Emily W. Murphy of the
General Services Administration, authorizing the process of formally handing
over the government to Mr. Biden.
For now,
the country appears to have avoided a ruinous breakdown of its electoral
system.
Next time,
Americans might not be so lucky.
While Mr.
Trump’s mission to subvert the election has so far failed at every turn, it has
nevertheless exposed deep cracks in the edifice of American democracy and
opened the way for future disruption and perhaps disaster. With the most
amateurish of efforts, Mr. Trump managed to freeze the passage of power for
most of a month, commanding submissive indulgence from Republicans and stirring
fear and frustration among Democrats as he explored a range of wild options for
thwarting Mr. Biden.
He never
came close to achieving his goal: Key state officials resisted his entreaties
to disenfranchise huge numbers of voters, and judges all but laughed his legal
team out of court.
Ben
Ginsberg, the most prominent Republican election lawyer of his generation, said
he doubted any future candidates would attempt to replicate Mr. Trump’s precise
approach, because it has been so unsuccessful. Few candidates and election lawyers,
Mr. Ginsberg suggested, would regard Rudolph W. Giuliani and Sidney Powell —
the public faces of Mr. Trump’s litigation — as the authors of an ingenious new
playbook.
“If in a
few months, we look back and see that this Trump strategy was just an utter
failure, then it’s not likely to be copied,” said Mr. Ginsberg, who represented
former President George W. Bush in the 2000 election standoff. “But the system
was stress-tested as never before.”
That test,
he said, revealed enough vague provisions and holes in American election law to
make a crisis all too plausible. He pointed in particular to the lack of
uniform standards for the timely certification of elections by state
authorities, and the uncertainty about whether state legislatures had the power
to appoint their own electors in defiance of the popular vote. The 2020
election, he said, “should be a call for some consideration of those issues.”
Yet even
without precipitating a full-blown constitutional crisis, Mr. Trump has already
shattered the longstanding norm that a defeated candidate should concede
quickly and gracefully and avoid contesting the results for no good reason. He
and his allies also rejected the longstanding convention that the news media
should declare a winner, and instead exploited the fragmentation of the media
and the rise of platforms like Twitter and Facebook to encourage an alternative-reality
experience for his supporters.
The next
Republican candidate to lose a close election may find some voters expecting
him or her to mimic Mr. Trump’s conduct, and if a Democrat were to adopt the
same tactics, the G.O.P. would have no standing to complain.
Still more
important, legal and political experts said, is the way Mr. Trump identified
perilous pressure points within the system. Those vulnerabilities, they said,
could be manipulated to destabilizing effect by someone else, in a closer
election — perhaps one that featured real evidence of tampering, or foreign
interference, or an outcome that delivers a winner who was beaten handily in
the popular vote but scored a razor-thin win in the Electoral College.
In those
scenarios, it might not be such a long-shot gambit for a losing candidate to
attempt to halt certification of results through low-profile state and county
boards, or to bestir state legislators to appoint a slate of electors or to
pressure political appointees in the federal government to block a presidential
transition.
Indeed, Mr.
Trump managed to intrude on normal election procedures in several states. He
summoned Michigan Republican leaders to the Oval Office as his allies floated
the idea of appointing pro-Trump electors from the state, which Mr. Biden
carried by more than 150,000 votes. And he inspired an onslaught from the right
against Georgia’s Republican secretary of state, Brad Raffensperger, who
declined to affirm Mr. Trump’s false claims of ballot tampering. Though Mr.
Raffensperger oversaw a fair election, both of Georgia’s Republican senators,
channeling the president, called for his resignation.
Michael Li,
senior counsel at the Brennan Center for Justice, said the country had
experienced a “‘Lord of the Flies’ moment” that revealed just how willing some
powerful actors were to enable an undisguised effort to sabotage a free and
fair election.
“It’s easy
to laugh at the Trump challenges, just because they’ve been so out there,” Mr.
Li said. “But what’s scary is, you step back from that a bit and see how many
people were willing to go along with it until fairly deep in the process.”
“There will
be closer elections, ultimately,” he added. “This one wasn’t very close. The
fact that people are willing to go down dangerous paths should give us all
pause.”
It remains
to be seen whether Mr. Trump will wind up as a singularly sore loser or as the
herald of a new Wild West era in American electioneering. There have been far
closer elections this century — including the 2000 vote that plunged the
country into a weekslong review of Florida’s rickety vote-counting procedures,
and the 2016 election that made Mr. Trump president through a historically wide
split between the popular vote and the Electoral College. But no one else has
entertained the corrosive tactics Mr. Trump has sought to employ.
Like
numerous other presidential schemes over the last four years, Mr. Trump’s plot
against the election unraveled in part because of external circumstances — the
large number of swing states Mr. Biden carried, for instance — and in part
because of his own clumsiness. His lawyers and political advisers never devised
an actual strategy for reversing the popular vote in multiple big states,
relying on a combination of televised chest-thumping and wild claims of
big-city election fraud for which there was no evidence.
Barbara J.
Pariente, the former chief justice of the Florida Supreme Court who oversaw the
state-level battle over the 2000 vote, said it was essential for Congress to
clarify the process by which elections are conducted and resolved or risk
greater calamity in the coming years. Mr. Trump’s team, she said, had already
breached fundamental standards of legal conduct by filing cases seeking to
throw out huge numbers of votes “without any evidence of impropriety, and then
asking a court to look further into it.”
“As I look
at what is happening now, I think it’s a real attack on our American system of
democracy, and it is causing tens of millions of Americans to doubt the
outcome,” Ms. Pariente said. “It has grave implications, in my view, for the
future of this country.”
Even if
Congress were to impose a clearer set of election procedures, however, there is
reason to doubt whether the rules could reverse the total-war mind-set Mr.
Trump has modeled. In failure, he has created a road map for his own party — or
even, under certain circumstances, for a grievance-laden Democrat — to wage a
bitter-end fight against an unfavorable election result, with the support of
loud voices in the right-wing media and much of his party’s conservative base.
And it is
that last cohort, the millions of voters who remain loyal to Mr. Trump and who
appear largely indifferent to the facts of the vote tally and the niceties of
legal procedure, that represents the most potent kind of weapon for this
defeated president, or another executive who might follow his example.
Shawn
Rosenberg, a professor of political and psychological science at the University
of California, Irvine, who has written pessimistically about the trajectory of
American democracy, said Mr. Trump has been highly effective at exploiting the
gap between the complexity of the country’s political system and the more
rudimentary grasp most voters have of their government. For the average
partisan, he said, issues of political norms and procedures were “very
abstract” and far less important than simply winning — an impulse Mr. Trump
stoked to the detriment of democratic institutions.
Mr.
Rosenberg warned that while Mr. Trump’s political opposition had managed to
unseat an incumbent — a rare feat in the nation’s presidential system — the
election was not the kind of overwhelming rout that might have proven American
democracy “invulnerable” to the kind of erosion on display in newer democracies
like Poland and India. That was something of a disappointment to Mr. Trump’s
critics on both the left and right, he said.
“Their hope
was that he had gone so far that he would awaken this awareness and resolve in
the American people,” Mr. Rosenberg said. “And clearly that was not the case
for roughly 74 million of them.”
Alexander
Burns is a national political correspondent, covering elections and political
power across the country, including Donald Trump’s 2016 campaign. Before coming
to The Times in 2015, he covered the 2012 presidential election for Politico. @alexburnsNYT
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