The 2020 general election this November will not produce a typical election night because of a huge number of mail-in ballots that could take days or weeks to count, exposing the eventual election outcome to challenge, according to the bipartisan Transition Integrity Project (TIP).
Mail-in ballots have been encouraged as a safer alternative to in-person voting during the still-surging COVID-19 pandemic. Mail-in ballots are expected to represent a significant percentage of the national vote for president. In addition to testing the capacity of the US Postal Service, heavy mail-in balloting will present logistical challenges for the electoral system, which can vary greatly from state to state and in local voting jurisdictions.
PEW Research says concerns about the US electoral system go beyond the pandemic’s impact, and quotes election experts who worry about misinformation, administrative incompetence and voter suppression. “The best-case scenario,” says Richard Hansen, a law professor and author of Election Meltdown, “is that key elections are not close because we are going to have problems.” Problems range from malfunctioning voting machines, fewer polling sites, inadequate staff, voter ID administration, increased emphasis on early voting and a lack of experience dealing with mail-in ballots.
In the TIP report released this week, the group of more than 100 current and former senior government and campaign leaders say they met in June to “game out” various election outcomes. “We assess with a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape” and “President Trump is likely to contest the result by both legal and extra-legal means in an attempt to hold onto power.”
The TIP report cites as precedent the 2000 election narrowly won by George W. Bush over Al Gore that involved contested election results in Florida. The report also cites the 1876 election in which Democrat Samuel Tilden won the popular vote but fell one vote shy of a majority in the Electoral College. The election was resolved through a messy political process that resulted in a negotiated “victory” for Republican Rutherford B. Hayes and the end of Reconstruction policies sought by Democrats in the South.
TIP participants divided into teams and conducted four military-style election simulations – a Trump landslide victory, a Joe Biden landslide victory and two more ambiguous outcomes. “The results were pretty intense, explains Nils Gilman, a historian and co-founder of TIP. “In every scenario, except for the one where Biden won in a landslide, we ended up with severe electoral contestation, protests in the streets, you know, crazy stories happening on social media, and the challenges went down to Inauguration Day. The contestation was really without precedent.”
The TIP report says three main risks were identified:
- The actual election could stretch from mid-September, when early balloting begins, until January 20 when the elected president is inaugurated. Election night is unlikely to produce final results or perhaps even conclusive partial results. The uncertainty creates an opening to cast doubt on the legitimacy of the election and set up an “unprecedent assault on the outcome.”
- “We anticipate lawsuits, divergent media narratives, attempts to stop the counting of ballots and protests drawing people from both sides,” the TIP report says. TIP participants also foresee pressure on governors and state legislatures to intervene with election processes or even contest results. The Department of Justice may be drawn into the election. A joint session of Congress on January 6, 2021 may be called upon, as it was in 1876, to resolve election disputes and name a winner.
- Electoral dysfunction could spill over into post-election administrative turmoil. TIP participants speculate that could range from presidential pardons to self-dealing foreign business deals to sensitive document declassification, any of which could have long-term implications.
Gilman pointed to three swing states – Michigan, North Carolina and Wisconsin – have divided state governments, which could present a challenge to what electors are sent to the Electoral College. In the 1876 election, three states sent competing sets of electors, tying up the Electoral College and sending the election to Congress to decide.
“These risks can be mitigated,” the TIP report says. “The worst outcomes are far from a certainty.” Mitigation strategies outlined in the report include:
- Prepare for a contested election, with both legal and political battle plans. “In the event of electoral contestation, sustained political mobilization will be crucial through the end of January.”
- Provide logistical and political support to carry out a complete and accurate count of all ballots. Governors, secretaries of state, attorneys general and state legislatures must be ready to enforce election laws and address irregularities. Public support for a full and accurate vote count will be essential.
- Deal head-on with unsubstantiated claims of voter fraud and be prepared to counter violence associated with those claims.
- Anticipate a rocky presidential transition in the event Joe Biden wins election. Arrange in advance transition team collaboration that is sequestered from any legal or political wrangling.
“The American people have the right to choose their next president without intimidation or interference in the normal electoral process,” TIP participants say. “Believers in democracy and the rule of law should therefore be prepared to take action to ensure the results of the 2020 presidential election reflect the will of the American people. The recommendations [in the report] reflect input from both Republicans and Democrats committed to these values.”
The risks and mitigation strategies in the TIP report reflect insights gained through a series of scenarios carried out by participants with “real-life” electoral experience. The exercises “were not designed to model or simulate legal strategy, but rather to better understand the potential political mobilization and media dynamics surrounding electoral contestation, and how candidates might exercise political power to achieve a win.”
TIP participants were frank in acknowledging the electoral gaming was deemed necessary because of various statements by Trump about alleged voter fraud, fake polling, not accepting election results and delaying the November 3 election. “Most of the recommendations in this [report] focus on how actors committed to the rule of law can restrain or counter anti-democratic actions the Trump administration and its supporters may take in connection with the 2020 election.”