The 2020 election cycle is gearing up to be one of the most contentious – and chaotic – elections in US history. While President Trump has said that he will leave the White House peacefully if he loses the election in November, it is notable that this is a question that we even have to ask of a sitting US president. And even if we take Trump at his word that he’ll leave peacefully if he’s handed a decisive defeat at the polls, there are plenty of ways that Trump and his team could disrupt the democratic process this fall.
For years, voter suppression has been a key part of the Republican Party’s electoral playbook. By keeping working class voters and voters of color away from the polls, Republicans are able to give an outsized voice to the white and wealthy voters that make up a core part of their base. In 2013 the Supreme Court struck down key parts of the Voting Rights Act of 1965, allowing states with a history of suppressing minority votes to implement new measures without federal oversight. In recent election cycles, Republicans have purged millions voters from the rolls without their knowledge, implemented stringent voter-ID requirements to create barriers to voting, and closed polling places in communities of color and low income communities.
In the election this fall, the ongoing COVID-19 pandemic will almost certainly lead to more disruption at the polls. During the primary cycle, voters in Georgia and Nevada waited in long lines because of consolidation of polling locations and a shortage of poll workers – many of whom are older and chose to stay home to protect their health. Many voters in Pennsylvania and Wisconsin report that they did not get their absentee ballots in time to cast their votes.
One strategy for maintaining voting access during the pandemic is expanding mail-in voting. A recent survey from Pew Research indicated that as many as 70% of Americans wanted to stay home and vote by mail this November. And as some states including Michigan and Nevada have implemented steps to expand access to mail-in voting, President Trump has lashed out, threatening to withhold federal funds from states and raising absurd allegations of voter fraud.
No clear winner on election night
In every presidential election in recent memory, with the very notable exception of the 2000 Bush vs Gore race, voters learned the outcome of the election late in the evening on Election Day or sometime within the next day. This is not because all of the votes had been counted and all of the provisional ballots had been adjudicated, it’s because one of the candidates called their opponent and conceded the election. Even in the 2000 presidential race, the outcome was not determined by the Supreme Court but actually Al Gore’s decision to concede the race following the court’s ruling in Bush v. Gore.
There is virtually no chance that the 2020 election will be decided on November 3rd or anywhere shortly thereafter.
In 2016, Trump alleged that he had been robbed of a popular vote victory because of millions of fraudulently cast ballots. And he actually won that election. In 2020, it seems highly unlikely that Trump would quickly concede in the event that he actually lost the race.
And large numbers of votes will not have been counted on Election Day. In the 2020 election cycle, a record number of voters are expected to vote by mail because of the COVID-19 virus. In many states it will take days or even weeks for those votes to be counted. In fact, thirteen states and the District of Columbia accept mail-in ballots after Election Day if they are properly postmarked.
As the vote counting continues operatives on both sides will watch the tallies in each state as they move in their favor or against them, moving through the in person votes from each precinct to the mail in ballots, to the provisional and contested ballots. We can expect both campaigns to push to stop counting and call the race in states where they are ahead while demanding that the counting continues, and contested ballots are included in the final tallies in states where they are behind. (For what it’s worth ballots that come in after election day have historically benefitted Democratic candidates).
During the 2000 election, Republican Party operatives recognized that continuing the recount would likely lead to Gore, not Bush winning the election, so they sprang into action. Led by Trump ally Roger Stone, a team of GOP staffers violently disrupted the vote count in Miami-Dade County in an episode that became known as the Brooks Brothers Riot. During this election we are more likely to see Trump supporters in fatigues and MAGA hats, armed with automatic rifles attempt to disrupt vote counting than political operatives in $5,000 suits.
Because this November we are likely to see chaotic scenes playing out in county elections offices and state capitols all over the country, this is a good time to take a closer look to see how and where different scenarios may play out.
Trump and Biden Both Won Michigan?
When Americans go to the polls on Election Day, they are not actually voting for a presidential candidate. Instead they are voting for a slate of electors who will vote in the Electoral College in December. The number of electors each state is granted based on the size of its Congressional delegation: the number of members of Congress from that state plus two (the number of Senators from that state). Washington, DC has 3 electors as well. All states except for Maine and Nebraska grant all of the votes in the Electoral College to the candidate that won that state.
Both parties maintain a slate of electors who will vote in the Electoral College if their candidate wins that state’s election. According to Article II, Section 1 of the Constitution each state then “shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.”
The Constitution, however, does not specify whom from each state sends the vote count to the President of the Senate. In some cases this is laid out in the State’s Constitution, but it is not inconceivable that in hotly contested states where the governor is from one party and the legislature is from the other party, the governor may send the President of the Senate one set of results and the legislature may send a different set of results. There are 13 states with mixed state governments, including important swing states Michigan, Wisconsin, and Pennsylvania. Those three states alone carry 46 electoral votes.
Because voters choose representatives to the Electoral College, not actual candidates, there is always a possibility that members of the Electoral College not vote for the candidate that won the majority of votes in their state. Members of the Electoral College that switch their votes are known as ‘faithless electors.’
Faithless electors have historically been rare because the electors are selected by state parties and are often selected because they are particularly loyal to their party. But this vote switching is not unheard of. Since the creation of the Electoral College there have been 165 faithless electors. In 2016 there were 10 faithless electors.
The question of whether or not states have the right to replace or penalize faithless electors was an open constitutional question until July 6, 2020, when the Supreme Court, in anticipation of the upcoming election cycle, unanimously concluded that states do, in fact, have the right to penalize or replace faithless electors. Thirty-two states and the District of Columbia have passed laws that penalize faithless electors, and in 14 of those states, votes by faithless electors are canceled and the electors are automatically replaced.
Use this map to explore state-level faithless elector laws and filter based on previous election outcomes and party representation in state government
On January 6th, 2021 the newly-elected 117th Congress will meet to open the state Electoral College vote counts and certify the results of the 2020 Presidential Election. If one or more states sends two separate vote counts, the Congress will need to decide which vote count to accept (or to reject them both). If one candidate wins a majority of the votes from the electoral college (currently 270) that candidate becomes the next President of the United States.
If neither candidate reaches 270 votes, the House of Representatives chooses the next President and the Senate choses the next Vice President. Importantly, the House votes on a one-state one-vote basis, so the vote of the one member of the House of Representatives from Montana has the same weight as the entire House delegation from California. Although Democrats have firm majority of the House of Representatives, there are currently 26 states with Republican majorities in their House delegations and 23 states with Democratic majorities in their House delegations. But this vote will be taken by the newly elected 117th Congress, not the current 116th Congress, so if Democrats pick up seats in a handful of key states that balance could easily shift.
Use the sliders on this map to explore how changes in Congressional delegations from some key states could shift the balance.
Time to Organize
The election this November is likely to be more contentious and chaotic than any election the US has seen in recent memory. While the actual vote count is obviously a critical factor that will determine the outcome, more than ever, the very political questions of how and when the votes are counted and who decides when the results should be certified will likely be just as impactful.
In 2000 Democrats told their base to stay home while the lawyers figured things out in the back room. Republicans sent their staffers to Florida to riot and stop the vote counting.
Donald Trump is already working hard to sow chaos, suppress voter turnout, and call the results of the election into question. This time around we can’t afford to wait for the lawyers to work things out. Instead, those of us who are committed to seeing Donald Trump removed from office should start organizing now to fight back against the Trump administration’s systematic efforts at voter suppression, hit the streets in key states where election outcomes are likely to be contested, and be ready to take bold direct action to bring Washington, DC to a standstill if Trump refuses to concede.