What Could Go Wrong With The Election? Well, Everything

A key theme of 2020 — aside from “We’re so fucked!” — seems to be that no matter how fucked things are, they can always get more fucked. It feels like we are all Wile E. Coyote: falling off a cliff, clobbered by an anvil, run over by a car, peeling ourselves off the road, just for it to happen all over again. Except, this isn’t a cartoon. Despite having a bona fide cartoon villain for a president, this is real life. Our democracy is facing an unprecedented crisis, and one of its hallmarks — a peaceful transition of power — is no longer a certainty. 

In a peaceful transition of power, the losing party accepts the results and concedes. It’s hard to imagine that this will happen if Donald Trump loses. Indeed, he has already called any outcome that results in his losing to former Vice President Joe Biden a "rigged" election. He has even baselessly accused Biden and Barack Obama of treason, and believes that this somehow justifies a future, unconstitutional third term in office. "We are going to win four more years," Trump said at an August rally in Wisconsin. "And then after that, we'll go for another four years because they spied on my campaign. We should get a redo of four years." 

This is, to say the least, quite worrisome. “There are so many potential ways this [election] could go wrong, it’s head-spinning,” Sabeel Rahman, president of voting rights think tank Demos, told Refinery29. That’s exactly why Rosa Brooks, a professor of law at Georgetown University, co-founded the Transition Integrity Project last December, convening a bipartisan group of current and former government officials, academics, and journalists to develop four different scenarios about how the election could play out. The findings were grim: With the exception of a Biden landslide, the other three potential outcomes resulted in “street-level violence and political crisis.” 

Recently, Brooks painted a bleak portrait of one way Election Day could play out in The Washington Post, beginning with a misinformation campaign: “On the morning of Election Day, false stories appear online claiming that Biden has been hospitalized with a life-threatening heart attack and the election has been delayed. Every mainstream news organization reports that the rumors are unfounded, but many Biden supporters, confused by the bogus claims, stay home.” Or imagine, as University of California Irvine law professor Rick Hasen has, that Russian hackers coordinate cyberattacks knocking out power lines in Democratic cities in swing states. 

These hypotheticals aren’t that far-fetched: Facebook and Twitter have said that Russia, which interfered with the 2016 election, is again sowing disinformation to help elect Trump, and a recent U.K. intelligence report found that cyberattackers “intruded” in its national infrastructure. Facebook, which initially downplayed Russia’s meddling with the platform and continues to face internal criticism over its handling of political misinformation, did not accommodate Refinery29’s request to discuss what it is doing to prevent the spread of misinformation. The social media company instead supplied a comment from Naomi Gleit, Facebook’s Vice President of Product and Social Impact, saying, “Now through November, we are laser-focused on helping more people register and vote in this election and continuing to combat interference, misinformation, and voter suppression.” 

The coronavirus pandemic further complicates things. Former Department of Justice official Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, relayed another plausible misinformation scenario to Slate, in which Republican officials — or Trump himself — might offer “a pretextual use of COVID to issue stay-at-home orders in targeted cities based on false information when it’s already too late for voters to request absentee ballots.” These potential situations illustrate why it’s imperative to double-check that you’re registered to vote, understand the voting rules in your state, and then create a voting plan long before Election Day. (Like, now.) As New York Rep. Alexandria Ocasio-Cortez recently tweeted, “I am voting early and in person. What’s your voting plan?”

Even if none of these possibilities play out, due to mail-in ballot delays and the likely litigation over recounts, there may not be a clear winner for weeks. Therefore, experts say that it’s important to think of the election not as Election Day, but as an election season, and brace for a protracted political and legal battle reminiscent of the 2000 presidential election, but on a much larger scale (not to mention, the makeup of the Supreme Court is now at stake, too). “The result that we have on the morning of November 4 is actually only going to be a partial result,” says Rahman. “There's still ballots to be counted, which means the final results could be different.” 

This is especially true for swing states. “If mail-in balloting is slowing down the process in a few swing states, then we may all be waiting for weeks as those key states count their absentee ballots,” Stetson University law professor Ciara Torres-Spelliscy, who contributed to University of California Irvine’s report of recommendations for preserving a fair presidential election in 2020, told Refinery29. Election Day determines when a vote must be cast, but courts are still litigating when mail-in votes must be received in order to count. In the swing state of Pennsylvania, for example, the state supreme court recently extended the deadline for mail-in ballots to three days after Election Day in order to accommodate potential postal service delays. 

Thanks to Trump, however, voter confidence in the postal service is waning. Trump has admitted that he’s withholding funding from the U.S. Postal Service in order to block people from voting by mail, a long-practiced form of voting that he has claimed, falsely, is “fraudulent in many cases.” Postmaster General Louis DeJoy, a Trump ally, sought to cut overtime, remove hundreds of mail-sorting machines, and made other changes that amounted to “an intentional effort on the part of the current Administration to disrupt and challenge the legitimacy of upcoming local, state, and federal elections,” according to an opinion by a federal judge that ordered DeJoy to reverse the changes. (A spokesperson for the USPS declined Refinery29’s interview request and instead offered a statement that assured voters the postal service “has more than enough capacity to handle election mail volume” and urged voters to request ballots as early as possible, postmarked no later than 15 days before Election Day.) 

While many of the risks to the 2020 presidential election are unprecedented, Rahman explains that the current crisis "is only possible because of the chronic, systemic gaps and failures of our democracy that were already there," including decades of systematic voter suppression of minorities and an inherently undemocratic Electoral College system. "We're going to actually have to make institutional changes that protect against racialized voter suppression, which is really the substrate upon which all of what we're grappling with right now is built," he said.

On top of fears over voter suppression and turnout, Daniel Carpenter, a government professor at Harvard University, raised concerns about the possibility that state officials could try to interfere with the Electoral College. For example, if Biden wins the popular vote in a state, Republican state executives or legislatures, incited by Trump’s claims of voter fraud, could “assert their own interpretation” of the results. This means they could either withhold Electoral College slates — which would toss the election to the House — or they could report an alternative slate, resulting in a false population of the Electoral College. Though this outcome is highly unlikely, it’s not impossible, and it could trigger a major political crisis that would put us “in somewhat uncharted territory,” Carpenter said. 

In the Los Angeles Times, Yale law professor Bruce Ackerman and California Democratic Rep. Ro Khanna illustrate another possible doomsday scenario: When Congress reconvenes in January 2021, the sitting vice president presides over the Electoral College vote-counts in a special joint session between the House and Senate. “The process is rarely dramatic,” the op-ed notes, but a precedent established in 1800 allows the sitting vice president — in this case, Mike Pence — “to invalidate a particular state’s electoral returns on the grounds that the underlying vote-count was generated in an illegitimate fashion — that it was rigged.” This would upend the election, causing a constitutional crisis — and national chaos. Inspired by the lessons of the contested presidential election of 1876, Ackerman and Khanna call on Congress to create a bipartisan commission of five Supreme Court judges to independently monitor the electoral process and “avoid electoral chaos.” 

Preparing for an extended election season, then, is critical because there’s a “temptation for one side to seize on the partial results [and] claim those are the true results,” Rahman says. As experts tell Slate, it is not unlikely that Trump, potentially aided by his buddies at Fox News, could take advantage of the confusion and misinformation and prematurely claim, in Trump parlance, that he has “WON BIGLY!” If the process drags on for long, with rapidly changing results, there will be a rise in conspiracy theories and distrust. Of course, trust in the electoral process has already eroded: According to a recent Yahoo! News/YouGov poll, only 22% of Americans believe the coming presidential election will be “free and fair.” If people don’t believe that the end results are valid, the resulting protests could be unprecedented, and the government’s response would be dangerous, as we’ve seen when Trump sent federal forces to several American cities in response to the Black Lives Matter protests. Already, under the guise of protecting the integrity of the ballot, the Republican National Committee — no longer bound by a 1982 consent decree to stop them from harassing and intimidating voters at the polls — is pouring millions of dollars and recruiting thousands to patrol polling stations. In some states where early voting is underway, Trump supporters are intimidating voters at the polls. It’s not out of the question that Trump could take advantage of the ensuing chaos and protests to invoke the 1807 Insurrection Act, enabling him to use military force against Americans. 

This would, after all, be in accordance with the theme of 2020: Everything is fucked. But, there is a slim silver lining here: This isn’t inevitable, and America has weathered elections during times of crisis before. “We’ve held elections in America during the Spanish Flu, the Civil War, two world wars, and we will do it again this year,” Sean Eldridge of Stand Up America, a progressive nonprofit organization, told Refinery29. “We need to be ready to be patient in the days after the election as every vote is counted, and we need to be prepared if Trump refuses to concede or were to try to declare victory prematurely.” The next several weeks offer a window for officials to put up safeguards and take preventative measures, to litigate voting deadlines, and for the media and the public to be vigilant and not fall for the many, many more lies and conspiracy theories inevitably coming our way from the Trump camp. A lot more can — and probably will — go wrong, but unlike a cartoon, we are not caught in a recursive loop of doom: There are actions that each of us can, and must, take in order to be prepared for what comes next.