By Richard L. Hasen / Special to The Washington Post
Concern is rising about what would happen if President Trump loses the November election and refuses to concede, perhaps by claiming victory based on early returns before the mail-in ballots are counted or through some similar maneuver. Would his supporters in this “doomsday scenario” take to the streets and Trump refuse to leave office?
These are real worries. But there’s another one that looms almost as large and gets far less attention: Would Democrats and others on the left accept the presidential results as legitimate if Trump wins? There’s reason to believe they might not; and there are steps Trump and others could take now to bolster his legitimacy if he wins in November. It starts by making sure we have a fair vote.
It’s easy to come up with a scenario where Trump ekes out a narrow victory in states like Georgia and Florida but Democrats blame Georgia voter suppression and the fight to keep former felons from voting in Florida as the reason for Trump’s victory. A democracy depends upon the losers believing the election was mostly fair and agreeing to fight another day, rather than engage in protests and attempts to stop an unfairly chosen leader from serving. If one side sees the other side as consistently cheating, the very premise of democracy is undermined.
This year, the grounds for Democrats to fear an illegitimate election have only increased. The coronavirus pandemic has upended normal voting plans. Election officials have faced delays in running primaries and been forced to close or consolidate polling places because of lack of available space and adequate workers; who are often older Americans, the people most susceptible to the novel coronavirus.
During the April 7 Wisconsin primary, 175 out of 180 Milwaukee polling places were shuttered after Republicans in the state legislature refused to delay the election despite the pandemic. Many voters have naturally planned to vote by mail in November where allowed, because that presents a safer way to cast a ballot during a pandemic and avoids potentially long polling-place lines. But Trump has repeatedly raised unsubstantiated claims of fraud connected to mail-in ballots, and he appointed a crony to head the U.S. Postal Service, which must deliver the ballots to voters (and return those ballots that voters put in the mail rather than a drop box or a polling place). Delays in delivering the mail, thanks in part to a management-labor dispute at the Postal Service, have convinced many that Trump is deliberately trying to delay the mailing and return of ballots.
Senate Republicans have also blocked additional federal funding for safe in-person and mail-in balloting in November. Congress has appropriated only $400 million nationally for the additional costs that the virus has forced election officials to spend, with estimates that the true cost will be $2 billion to $4 billion. Without adequate funding, the chances of sloppiness in running the election go up, and concerns about the fairness of the election increase, too.
Trump’s rhetoric about the election has been over the top, from saying the election will be “rigged” if he doesn’t win, to encouraging his supporters to vote by mail and in person (a felony) to “test the system,” to making outlandish claims about forged counterfeit ballots coming from a foreign country, a claim the chief law enforcement officer of the United States, Attorney General William P. Barr, has, unfortunately, echoed. No wonder many on the left believe the president would do or say anything to remain in office.
On top of all of these concerns is a structural inequality in the conduct of U.S. presidential elections. Thanks to the state-based nature of the electoral college, Joe Biden will need to win more than a majority of Americans to become president in January. By Nate Silver’s calculation, if Biden wins the national vote by less than 1 percent, Trump still has a 94 percent chance of winning the electoral college and retaining power. A Biden win of the popular vote by anything less than 3 percentage points would still leave Trump with better than 50 percent chances of an electoral college victory. It would be yet another election where the popular vote winner did not become president; just like Trump’s first win.
Trump obviously is not going to do anything to change the nature of the electoral college before November, but there’s a lot that he and others in power could do to minimize the chances of large parts of the population viewing his reelection as illegitimate.
To begin with, the best way to create the appearance of a fair election is to run an actually fair election. That means adequate funding for the additional costs of conducting a national election during a pandemic. It means assuring that the Postal Service has sufficient resources to deliver election-related mail quickly. It means encouraging eligible voters to vote (only once!), early if possible, and making sure that systems are in place to protect both the integrity of the vote count and access to the ballot during a pandemic.
Trump should also stop making unsubstantiated claims that voter fraud is rampant. The evidence is that voter fraud is rare, even though there’s slightly more risk with absentee ballots. Ordinarily, the calculus of encouraging mail-in balloting is to weigh the convenience of voting by mail against the small risk of fraud (and somewhat larger risk that voters sending their ballots by mail will be inadvertently disenfranchised by making technical errors in completing or mailing ballots). Under pandemic conditions, the benefits greatly exceed the risks, but there’s much that can be done specifically to make mail-in balloting both more secure and less likely to disenfranchise voters, such as allowing voters to track their ballots and to come forward with additional evidence to have their votes count if their ballots are rejected for technical reasons like a supposed signature mismatch.
I don’t hold out hope that Trump is going to take the steps necessary in the next two months to bolster the confidence of all voters in the fairness and integrity of the process. Quite the opposite. But if he doesn’t, and then he wins again and large portions of the population don’t accept his victory as legitimate — something Trump has consistently complained about since the investigation of Russian interference in the 2016 election began — he will have only himself to blame this time.
Richard L. Hasen is the chancellor’s professor of law and political science at the University of California at Irvine and the author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.”
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