With the election only weeks away, President Donald Trump is down in the polls, sowing doubt about the integrity of the vote, and refusing to commit to a peaceful transfer of power. When he accepted his party’s nomination at the Republican National Convention on August 24, Trump summarized his position: “The only way they can take this election away from us is if this is a rigged election.”
What happens if a president loses reelection, but won’t accept the outcome? Staff writer Barton Gellman tried to answer that question in the cover story of this month’s Atlantic. He joins Edward-Isaac Dovere on the podcast The Ticket to explain what he found.
What follows is a transcript of part of their conversation, edited for clarity:
Edward-Isaac Dovere: There are powers that Donald Trump has as president to muddle and to complicate the vote counting. I think part of what made so many people read your piece with alarm is not realizing how extensive those powers are. People think the votes get cast, the states count the votes, and then it goes to the Electoral College, but it’s more complicated than that.
Barton Gellman: It is more complicated than that. We would like to believe—and I think we assume because everything has always worked so smoothly—that there is an umpire in this game called election who blows the whistle, calls the balls and strikes, calls the score, tells you where the game is over. And the opposing coach can fight about it and complain about it and denounce the refereeing. But when the umpire blows the whistle, the game is over and the loser has lost. And it’s done. There’s nothing like that in the American electoral system.
There are county authorities in about 10,500 jurisdictions who run their own local elections. There’s a state official, usually a secretary of state, who oversees a process by which these thousands and thousands of officers do the vote counting. There’s an Electoral College and there’s a formal count of the electoral vote in Congress. But whatever officiants we have in this whole proceeding are all of limited jurisdiction and fairly opaque authority.
Dovere: But what can Trump do? How can he directly affect this?
Gellman: He has the power as chief law enforcement officer and commander-in-chief of the armed forces and chief executive of the executive branch to do all kinds of things that no one’s ever done before. We just don’t know how he’ll use them. He’s the President of the United States. He is telling us: Do not trust the vote count. There are cheaters. Democrats are trying to fix the election. Democrats are cheating. He could do something about that. He can send in Justice Department personnel—he’s already done it with DHS personnel in Seattle and in Portland, wearing camouflage uniforms and not identifying themselves—saying that they’re there to protect the evidence in a vote fraud investigation. He can send in postal inspectors to seize the mail-in ballots on grounds that there’s intelligence on a forgery plot from overseas.
These sound like science fiction, but they are within his literal power to do. He could get someone’s blessing. He can get [Attorney General] Bill Barr to say that he has executive authority under this or that provision to do a normal criminal investigation, for example, or under some postal regulation, he has the power to seize fraudulent mail for evidence. I don’t know where he’ll stop. But I do know that he’s serious when he says he can only lose in a rigged election. He’s serious about his determination not to concede defeat if he’s defeated.
Dovere: You spent a lot of time in a lot of dark places psychologically over the course of reporting your article. You also have a pretty good sense of what could happen where that line between science fiction and fantasy is. What do you think is realistic? Is there really some line that we can say is going to be hard to cross? Or does it seem like really anything can happen here?
Gellman: I think one of the wildcards is going to be what his state allies do. There are Republican governors in some crucial states, such as Florida. And if the president is on live television on election night saying that he has proof that Democrats are stuffing ballots, are cheating, are fraudulently causing the count to go against him, what’s Governor Ron DeSantis going to do? What are state authorities going to do? What are his supporters going to do? What are the militia types going to do if he says that forces from Antifa are threatening the integrity of the vote count? Who’s going to go and protect and secure the area? Who’s going to take possession of the ballots to make sure that they’re not stolen? I think anything could happen. I think the question is: do we expect his wild words to create wild action? And I do.
Dovere: You mentioned Florida. In 2000, Florida obviously was a very troublesome vote count. That went to the Supreme Court. When you were writing your story, Ruth Bader Ginsburg was alive. If Senate Republicans proceed as they seem to be in confirming a new justice, how important might the Supreme Court be to this election? What is the difference of if she is not confirmed before the election vs. having her there?
Gellman: We don’t know whether the court will be a venue of important action in this election. There will certainly be lots of litigation. There is already lots of litigation about the way the election will proceed, mostly in state courts, because election law is state law, primarily. And so you could have disputes about the election in state courts, for sure.
I believe the Supreme Court would be very reluctant to get involved in this election. Bush v. Gore was a traumatic event for the court and the country. Roberts, in particular, will be worried a great deal about the legitimacy of the court if it had to settle another election or if it chose to settle another election.
Dovere: Although President Trump has said that he wants the justice there to do that.
Gellman: Especially after the president has said he needs another justice when the court takes up this election. That would be an especially bad time for the court to do so. If it wants to keep its legitimacy as an institution apart from our democratic processes. I doubt the court will be eager to get involved. And the thing is, there are all kinds of ways for the process to be litigated, so to speak, without the participation of any court. The possibilities are that Trump will try to get his state allies to appoint Trump electors for the Electoral College because he’ll say the vote count is hopelessly damaged by fraud, that he will say, in order to represent the will of the people of your state, you need to appoint Trump electors because the Democrats are trying to steal the outcome. And if they do that, there are potentially two slates of electors who want to cast the same 20 votes for Pennsylvania and they’re casting them on opposite sides. And then Congress has to decide which votes count.