During the long legal battle in Florida that ultimately determined the 2000 presidential election, Al Gore, the Democratic nominee, specifically discouraged Jesse Jackson, the veteran civil-rights leader, from organizing public protests to demand a full counting of the disputed ballots.
Gore wanted to fight solely in the courts, though that meant ceding the streets to Republicans, who held raucous rallies accusing Democrats of trying to steal the election from the GOP nominee, George W. Bush, including one showdown in the Miami-Dade elections-board offices that became immortalized as the “Brooks Brothers riot.”
No one can say what exactly will happen if Donald Trump contests an apparent loss on November 3 by insisting that the results are riddled with fraud. But one prediction is safe: Democrats won’t cede the streets to the GOP again in the weeks after the election.
A wide array of progressive groups is already coordinating efforts to ensure substantial public protest after the election to defend the vote counting. Their assumption is that Trump will try to intimidate state officials tabulating mail-in ballots by mobilizing the same sort of armed supporters who poured into midwestern capitals to protest the coronavirus lockdowns in the spring and confronted Black Lives Matter protesters over the summer. The intent on the left, if it comes to that, is to meet Trump’s demonstrators with overwhelming numbers; the goal is to establish a presence more reminiscent of the street uprisings in Eastern Europe before the fall of the Berlin Wall, or the more recent prodemocracy protests in Ukraine and Hong Kong, than of anything in modern American experience.
“If it appears that Trump is blatantly stealing the election from a majority of the Americans that voted in a different direction, I do think that people will rise up in ways that we’ve never seen before,” says Rashad Robinson, the executive director of Color of Change, one of the groups participating in the progressive coalition, called Protect the Results.
Adam Green, a co-founder of the Progressive Change Campaign Committee, another group participating in postelection planning, told me that he can “guarantee” that “we will not have asymmetric warfare this time around. We won’t have litigation on the left and thuggery and election disruption on the right.” If Trump tries to stop the counting of mail-in ballots after Election Day, or otherwise tries to short-circuit the results, Green predicts, the scale of protests would be that of “the Black Lives Matter protests on steroids, as people come into the streets to defend their democracy and to defend the counting of votes.”
The prospect of massive protests on both sides is only one of many ways the contest between the parties could extend beyond Election Day in an unprecedented manner—perhaps up until Inauguration Day, on January 20. If the November 3 voting produces anything less than a blowout lead for either side—and perhaps even if it produces a blowout lead for Joe Biden—the post-election period is likely to test how far both GOP leaders and rank-and-file Republican voters will go in tolerating efforts from Trump to subvert the rules of small-d democracy.
On that front, a new study from the Vanderbilt University political scientist Larry M. Bartels offers important—and ominous—findings. Bartels found that antidemocratic and authoritarian ideas have secured a substantial foothold within the GOP’s electoral coalition. In a national survey he conducted in January, just over half of Republican voters (including both self-identified Republicans and independents who lean toward the party) strongly or somewhat agreed with the statement that “the traditional American way of life is disappearing so fast that we may have to use force to save it.” Just under half agreed that “strong leaders sometimes have to bend the rules in order to get things done.” About two in five agreed that “a time will come when patriotic Americans have to take the law into their own hands.” And almost three-fourths concurred that “it is hard to trust the results of elections when so many people will vote for anyone who offers a handout.”
Strikingly, less than one-fourth of Republicans disagreed with any of these statements. (No more than 8 percent strongly disagreed with any of them.) The rest described themselves as unsure.
Equally remarkable in Bartels’s research: The key predictor of which Republicans were most receptive to ditching democratic rules wasn’t age or education or any other demographic factor. Instead, hostility toward the nation’s growing racial and ethnic diversity—the central chord of Trump’s messaging—was the single best predictor of a willingness to abandon democratic precepts. Close behind was hostility toward cultural change, such as greater acceptance of gay rights.
“The single survey item with the highest average correlation with antidemocratic sentiments [was] an item inviting respondents to agree that ‘discrimination against whites is as big a problem today as discrimination against blacks and other minorities,’” Bartels wrote. That tracks with multiple academic studies that found the best predictor of support for Trump in 2016 was denial of systemic racism’s existence.
The long-term implication of Bartels’s findings is that Trump’s eventual departure from the White House, whether in 2020 or 2024, is unlikely to excise from Republican circles a desire to strain, or even break, democratic norms if that’s what it takes to hold power. That sentiment could even deepen across the GOP coalition over the next decade, as the country continues to diversify.
The more immediate implication of Bartels’s study is that a significant portion of Trump’s voters may be inclined to stand with him if he tries to contest a defeat in November.
Trump, of course, is already laying the groundwork for such a postelection offensive by relentlessly insisting that the results will be fraudulent. Trump and the Republican National Committee are already engaged in preelection litigation at the state level over mail-in balloting and other voting rules. This will likely be only the overture of a symphony of legal challenges to how states count their ballots after the election.
If Trump can’t stop ballot counting in the courts or by pressuring states, he won’t have exhausted his options. The experts who war-gamed possible postelection scenarios for the bipartisan Transition Integrity Project suggest that the president could try to enlist Republican-controlled legislatures in key swing states to help him. They could send a slate of pro-Trump electors to vote in the Electoral College when it convenes on December 14; the rationale would be that even if the state’s official count had Biden ahead, the result was too riddled with fraud to trust. (The GOP-controlled legislature in Florida explored the option of designating its own pro-Bush electors during the recount there in 2000.) A worst-case scenario: A state with a Democratic governor and a Republican legislature could submit competing slates of electors for the final vote. That’s hypothetically possible in the three key Rust Belt battlegrounds of Michigan, Pennsylvania, and Wisconsin, as well as North Carolina. (Republicans control both the governorship and the state legislature in the other states considered most competitive, Arizona and Florida.)
If this were to happen, Congress—specifically the new Congress chosen in the November election—would decide on January 6 which electors to accept, using the procedures laid out in the Electoral Count Act of 1887. Congress passed that law after a stalemate over disputed electors from Florida, Louisiana, and South Carolina produced a constitutional crisis in the 1876 election. The problem now? The counting act is a mess—“just a morass of convoluted verbiage from the 19th century,” says Edward B. Foley, an election-law expert at Ohio State University’s Moritz College of Law. “It’s not self-evident, which is unfortunate, because you need clarity for this situation.”
If Democrats hold both the House and Senate in January, Trump could be stalemated: For any disputed state, a Democratic-controlled Congress would surely certify the electors approved by the Democratic governor, not the Republican legislature. Even if control is still split between a Democratic House and a Republican Senate, the most widely accepted interpretation of the 1887 law gives Democrats the high ground: Under that reading, if the House and Senate divide on which electors to certify, the tie goes to the slate approved by the governor. (In each key Rust Belt state, that’s a Democrat.) But Foley notes that Republicans would likely challenge that interpretation in the courts, which means the Supreme Court may eventually need to determine whether to weigh in or send the dispute back to Congress for a political resolution. Even if the Supreme Court tried to settle such a battle, it’s far from certain that the losing side would accept its verdict as acquiescently as Gore did in 2000, when he conceded the election the day after the justices’ 5–4 decision to stop the Florida recount.
“Al Gore made a big point of accepting the Supreme Court [ruling] even though he disagreed with it,” Foley says. “That’s a way, 20 years on, [that] the situation could be very different” now.
What happens if the Supreme Court ducks ruling on the issue at all—or issues a verdict that one side refuses to accept—gets even murkier, as Foley and Larry Diamond laid out recently in The Atlantic. But many of the legal experts and political activists contemplating nightmare scenarios say it’s crucial to remember one thing: Both voters and election officials can still take steps to mitigate the risk of postelection chaos. One is allowing state officials to do the preliminary work of opening mail-in ballots and comparing signatures before Election Day, which would speed up the final count; that’s legal in most states, but not in some key battlegrounds, including Michigan and Pennsylvania. (Both are exploring changing the law to allow for such work.) Some progressive groups are encouraging Americans to cast a ballot through in-person early voting, which is far less subject to being challenged than mail-in voting. Green and Robinson both told me that progressive groups’ prime imperative must be to defend states’ ability to continue counting votes after Election Day, whether that defense takes place in the courts, in state legislatures, or in the streets.
“There is planning in place to have robust grassroots communications and collaboration on the ground, and way more of a communications strategy [than in 2000], to ensure that the public really knows what is going on and they are given opportunities to help fight back,” Green said.
Another potentially pivotal dynamic: If Biden is ahead in the key states on Election Night, that will severely limit Trump’s options. The president’s strongest postelection play will be to argue against the continued counting of ballots; that argument will be complicated, to say the least, if he trails before the remaining ballots are counted. “Every recount lawyer tells you the most important thing is who’s ahead and who’s behind,” Foley says.
Robinson told me that a cornerstone of progressives’ postelection strategy will be to try to isolate Trump by pressuring business and other social leaders to fight any effort to overturn an apparent Biden win. “There will be absolute focus on enablers, corporations, and media and other elite institutions,” he said. “There will only be so many yachts and towers for them to hide in, and I think a lot of folks will direct their energy [toward that]. I hope they don’t actually need that. I hope they show up. I want to invite them into the early thinking and work about what they are going to do.”
One group above all might determine how far Trump can push the boundaries: other senior Republican elected officials. Bartels believes that, whatever the underlying reservoir of antidemocratic attitudes among Trump’s supporters, the president is unlikely to sustain broad support for a postelection challenge if GOP leaders quickly renounce it. “There might still be an intense minority that is eager to act out under those circumstances, but widespread public support would depend on the reaction of political elites,” he told me.
Bartels finds reason for optimism that Republican leaders would not enlist in an effort to overturn the results: the quick pushback many of them gave Trump when he suggested delaying the election. Frances E. Lee, a professor of politics and public affairs at Princeton who has written on conservative populism, likewise notes that other GOP leaders did not support the Senate candidate Roy Moore from Alabama or then–Kentucky Governor Matt Bevin when they sought to challenge their defeats in 2017 and 2019, respectively. “The threat is there, but we have some recent examples, Trump-era examples, that point to ways it could be resolved short of a constitutional crisis,” Lee says.
Others less sanguine point to the lack of meaningful protest from leading Republicans as Trump has moved to tilt the results of the Census, attacked the use of mail-in balloting, regularly repeated wild and disproven allegations of voter fraud, weakened the Postal Service, and dispatched federal law-enforcement agents into Democratic cities over the objections of local officials—not to mention the decision by every Senate Republican except Utah’s Mitt Romney to side with Trump during his impeachment trial, despite the overwhelming evidence that he tried to extort Ukraine into manufacturing dirt on Biden. “From the very beginning, I have urged progressives [to recognize] … that moderate Republicans are not going to save us,” Robinson said. “They are way more invested in maintaining their status quo of leadership than they are in defending democracy and defending basic rules.”
It may be a preview of coming events that in the Transition Integrity Project’s war games of possible postelection conflict, “teams playing GOP elected officials and political appointees most often acted in lockstep to support Team Trump.”