Photo by VIctoria PIckering
4.02 | 06.24.20
Voters, hold on to your hats. The U.S. election system could face an unprecedented array of challenges in November, from the coronavirus pandemic to the prospect of cyberattacks to the depredations of President Trump himself. And that means there’s a non-zero chance that the election will misfire, leaving us with the wrong president—or no president at all—come noon on January 20, 2021.
At least, that’s the argument legal scholar Lawrence Douglas lays out in Will He Go? Trump and the Looming Election Meltdown in 2020, a new book that goes into extreme and eye-opening detail about the flaws that make the Electoral College system uniquely vulnerable to a disruptor like Trump.
In the final presidential debate of 2016, when moderator Chris Wallace asked Trump whether he’d accede to the outcome of the election if Hillary Clinton were to win, Trump refused to answer. “I’ll keep you in suspense,” the candidate said. Douglas tells Soonish that this intentionally subversive response raised a specter in his mind that he hasn’t been able to dispel.
“Whatever damage a candidate could cause to our system by refusing to concede, imagine the kind of damage that an incumbent could cause to our system by refusing to concede,” Douglas says. “How well equipped is our system to deal with that type of eventuality? The rather alarming conclusion is it's very poorly equipped indeed.”
The problem isn’t merely that the the Electoral College system is unrepresentative by design, or that its winner-take-all nature makes it possible for a candidate to assume office without winning a plurality of the popular vote (an outcome that befell the nation in 1876, 1888, 2000, and 2016). It’s also that the Constitution and the laws Congress has put in place around national elections fail to specify which votes count in the not-so-rare cases where electors don’t vote as pledged, or where states nominate competing slates of electors.
The opportunities for mischief multiply when an election is so close that the outcome might turn on contested ballots, such as the notorious hanging-chad punch card ballots of 2000 or the mail-in ballots that coronavirus-wary voters are likely to use in record numbers this fall and that Trump is already noisily denouncing. “At times I've described it as this Chernobyl-like defect built into our electoral system,” Douglas says. “If everything lines up the wrong way, this meltdown could occur.”
Update, December 2, 2020: We’re thrilled and honored to report that the Bello Collective has named this episode to its list of 100 Outstanding Podcasts from 2020.
Mentioned In This Episode
Lawrence Douglas, Will He Go? Trump and the Looming Election Meltdown in 2020, Hachette, 2020.
Amherst College Department of Law, Jurisprudence, and Social Thought
Election Dreams and Nightmares, Soonish, October 31, 2019
Democracy and Dysfunction, Sanford Levinson and Jack M. Balkin, University of Chicago Press, 2019.
Climate of Denial, Ministry of Ideas, April 28, 2020
Additional Reading and Listening
Gus Wezerek, Is Your State at Risk of an Election Meltdown?, The New York Times, September 15, 2020
Geoffrey Skelley, What If Trump Loses and Won’t Leave?, FiveThirtyEight, September 14, 2020
Steve Coll, The Case for Dumping the Electoral College, The New Yorker, September 13, 2020
Timothy Johnson, Roger Stone calls for Trump to seize total power if he loses the election, Media Matters, September 11, 2020
Quint Forgey, ‘We’ll put them down very quickly’: Trump threatens to quash election-night riots, Politico, September 11, 2020
David Brooks, What Will You Do If Trump Doesn’t Leave?, The New York Times, September 4, 2020
Trip Gabriel, This is Democrats’ Doomsday Scenario for Election Night, The New York Times, September 2, 2020
Lawrence Douglas, If Biden wins, don’t expect Trump to accept defeat and head for the exit, The Los Angeles Times, August 12, 2020
Ian Millhiser, No, Trump Can’t Delay the Election, Vox, July 30, 2020
David A. Graham, Trump Can’t Postpone the Election—But He’s Trying to Destroy Its Legitimacy, The Atlantic, July 30, 2020
Missy Ryan and Paul Sonne, As Trump demurs, an unimaginable question forms: Could the president reach for the military in a disupted election? The Washington Post, July 28, 2020
Deborah Perlstein, Preparing the Public for a Contested Election, Just Security, July 14, 2020
Graham Allison, Trump Might Not Want to Relinquish Power, The Atlantic, July 12, 2020
Max Boot, What if Trump loses but insists he won?, The Washington Post, July 6, 2020
Adam Liptak, States May Curb ‘Faithless Electors,’ Supreme Court Rules, The New York Times, July 6, 2020
Bring On the 28th Amendment, Richard Hasen, The New York Times, June 29, 2020
Richard Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, Yale University Press, 2020
Amy Gardner, Barring a landslide, what’s probably not coming on November 3? A result in the race for the White House, The Washington Post, June 22, 2020
Peter Nicholas, Trump Could Still Break Democracy’s Biggest Norm, The Atlantic, June 16, 2020
Sean Illing, Will He Go? A Law Professor Fears a Meltdown This November, Vox, June 3, 2020
National Popular Vote (project website)
National Popular Vote Interstate Compact (Wikipedia)
Edward B. Foley, How John Kasich Could End Up Picking the Next President, Politico, March 20, 2016
David Frum, America After Trump, The Atlantic, December 2019
Washington, We Have a Problem, Soonish, July 3, 2017
Chapter Guide
00:00 Hub & Spoke Sonic ID
00:08 Opening Theme
00:21 "I'll Keep You in Suspense"
02:05 Trump Defeats Clinton
02:18 How Donald Thinks
02:51 Meet Lawrence Douglas
04:35 Bad Design and Total Election System Failure
06:19 Dear Listeners
08:07 A Warning to Americans
09:24 What Makes a Victory Decisive?
11:27 Trump Moves the Goalposts
12:14 Faithless Electors
15:26 Update: SCOTUS Rules on Faithless Electors (added July 7, 2020)
16:56 SpongeBob for President
20:34 Competing Slates
25:54 Lies and Meta-Lies
29:05 Spoiler #1: Election Day Snafus
31:14 Spoiler #2: Foreign Interference
33:16 Spoiler #3: Covid-19
37:06 Beyond Ordinary Politics
39:07 "If I Don't Win, I Don't Win"
40:16 Short-term Tactics for Preventing Election Disaster
41:22 Long-term Strategies for Fixing our Elections
43:07 The Constitution Kinda Feels Like a Suicide Pact
43:33 End Run: the National Popular Vote Interstate Compact
46:08 My Simple Hope
46:44 End Credits and Hub & Spoke Promo
Notes
The Soonish opening theme is by Graham Gordon Ramsay.
Additional music is from Titlecard Music and Sound.
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Marine One photo by Victoria Pickering, shared on Flickr under a Creative Commons CC BY-NC-ND 2.0 license
Full Transcript (updated July 7, 2020)
Audio Montage: We can have the future we want, but we have to work for it.
Wade Roush: You’re listening to Soonish. I’m Wade Roush.
If you want to relive one of the most chilling moments in recent political history, it’s easy to hop on YouTube and find this clip from the final presidential debate of 2016 between Donald Trump and Hillary Clinton, with Chris Wallace as the moderator.
Chris Wallace: I want to ask you here on the stage tonight, do you make the same commitment that you will absolutely, sir, that you will absolutely accept the result of this election?
Donald Trump: I will look at it at the time. I'm not looking at anything now. I'll look at it at the time.
Chris Wallace: There is a tradition in this country, in fact, one of the prides of this country, is the peaceful transition of power. And that no matter how hard-fought a campaign is, that at the end of the campaign that the loser concedes to the winner and that the country comes together, in part for the good of the country. Are you saying you're not prepared now to consent to that principle?
Donald Trump: What I am saying is that I will tell you at the time. I'll keep you in suspense.
Hillary Clinton: Well, Chris, let me respond to that, because that's horrifying. You know, every time Donald thinks things, you're not going in his direction, he claims whatever it is is rigged against him. The FBI conducted a year-long investigation into my emails. They concluded there was no case. He said the FBI was rigged. He lost the Iowa caucus. He lost the Wisconsin primary. He said the Republican primary was rigged against him. Then Trump University gets sued for fraud and racketeering. He claims the court system and the federal judge is rigged against him. There was even a time when he didn't get an Emmy for his TV program three years in a row when he started tweeting that the Emmys were rigged.
Donald Trump: Should have gotten it.
Hillary Clinton: This is a mindset. This is this is how Donald thinks. And it's funny, but it's also really troubling.
Wade Roush: Of course we all know how that election turned out. Clinton won the popular vote by a margin of almost 3 million votes. But she lost in the Electoral College after capturing just 227 electoral votes to Trump’s 304. So Clinton did the traditional thing and conceded.
But when she said “This is how Donald thinks,” she didn’t know how right she was. On his third day in office in January 2017, after an election he’d just won, Trump still claimed the vote was rigged. He falsely claimed to senior members of Congress that the only reason he’d lost the popular vote was that between three and five million people had voted illegally. The claim was outlandish on its face, and later not even the president’s own Advisory Commission on Election Integrity was able to substantiate it.
There was one person who watched the debate that night in October 2016 who couldn’t stop replaying that moment in his head.
Lawrence Douglas: Chris Wallace was rather taken aback. And Hillary Clinton was horrified. And I remember thinking, like, that's a pretty remarkable thing for the candidate of a major party to be saying.
Wade Roush: That’s Lawrence Douglas. He’s a professor in the department of Law, Jurisprudence, and Social Thought at Amherst College in western Massachusetts. He’s known for his books about how the international legal system dealt with Nazi war crimes after World War II. More recently he’s been writing regular op-ed pieces for the Guardian about the Trump administration’s legal travails. And when I talked with him last week, Professor Douglas told me that I’ll-keep-you-in-suspense moment from Trump in the debate left a nagging question in his mind. A question that’s been getting louder and louder as November 2020 approaches.
Lawrence Douglas: Whatever damage a candidate could cause to our system by refusing to concede, imagine the kind of damage that an incumbent could cause to our system by refusing to concede. And then I asked myself, well, how well equipped is our system to deal with that type of eventuality? And I think the rather disappointing or rather alarming conclusion, I should say, is it's very poorly equipped indeed. In fact, I might go one step further and say that should such a crisis arise, the system is more likely to exacerbate it than to defuse it.
Wade Roush: Now Douglas has published a whole book on that question, under the title Will He Go? Trump and the Looming Election Meltdown in 2020. I read it in one sitting. And I asked Douglas to talk with me for the podcast because I see the book as a great example of what you might call political futurism.
We all know about the fundamental flaw in the U.S. Constitution that makes it possible for a presidential candidate to win in the Electoral College without winning a plurality of the popular vote. After all, that’s happened four times in our nation’s history, twice in this century alone. But Douglas’s book goes beyond that problem to explore a bunch of other scenarios where the bad design choices baked into our election system could lead to a total system failure this November.
By system failure I mean an election where we get to Inauguration Day in 2021 and it’s still not clear who’s been elected president. Or a scenario where Trump has clearly lost the election, but claims the vote was rigged and refuses to leave office. What we’re learning is that the system of laws and norms around presidential elections wasn’t built to handle someone like Trump who doesn’t care about norms and who, in fact, has been rewarded over and over for breaking them. What could happen if someone like that tries to push the system even farther past its limits?
Lawrence Douglas: I had read some catastrophe theory and read that people who do catastrophe theory, what they usually do is they take the likelihood of an event and then they multiply it by the amount of harm that would result if that catastrophe does materialize. So that even if the likelihood is quite low, if the harm that result is quite high, then it's something we really should prepare ourselves for. And so when I started writing it, I actually was working from the assumption that Trump was probably going to be re-elected. He seemed like he was in a pretty good position to win re-election. And so I did think of this sort of as somewhat of a thought experiment. ‘Well, maybe we should prepare ourselves for this eventuality,’ because, again, of the harm that could result. But now what seemed quite theoretical seems unfortunately, quite possible come November 3rd.
Wade Roush: Now, dear listener, before I dive into my full conversation with Lawrence Douglas, I want to be up front about something. This episode gets pretty dark. Very, very dark. But I’m not trying to scare or shock anybody. And I don’t think Douglas is either.
The point of Soonish has always been to share stories that help us think about the future and where we want to take it. When people ask me for my own predictions about the future, I usually say I’m a short-term pessimist and a long-term optimist. Meaning, I think things are probably going to get worse before they get better. Right now it’s the summer of 2020 and the coronavirus pandemic is still raging. The global economy is in a smoldering heap. Thanks to climate change, this could easily turn out to be the hottest summer on record. And we have a president who’s basically a walking bottle of charcoal lighter fluid.
Yet at the same time, the nation’s caught up in the most intense movement in more than half a century to defeat systemic racism and end police violence toward people of color. And as I speak the Supreme Court has just handed down some astonishing decisions that will drastically improve the lives of young immigrants and LGBTQ people.
So, speaking for myself, I’m simultaneously feeling more hope about the future than I have for a long time, and more dread. I mean, it’s amazing to see so many people rising up to demand real change. But on the flip side, our institutions are so worn down and rickety, and people are so angry and so unable to agree on the truth of anything, that it’s hard to imagine change coming easily or peacefully. Under conditions like this, it’s easy to see how the election this November could turn ugly. And that’s why I wanted to talk with Lawrence Douglas. Because even if you can’t stop a disaster, you can mentally prepare for one.
I started off the conversation by asking Douglas to explain why he wrote the book and what kind of result he’s hoping for.
Lawrence Douglas: I suppose on one level, I'm just trying to issue a warning to Americans saying that our system is vulnerable to a real meltdown. You might then ask, well, how do we avoid that kind of meltdown scenario? I think at times I've described it as this, sort of like a Chernobyl like defect that's kind of built into our electoral system, that, again, if everything kind of lines up in the right way or I suppose the wrong way, you know, this meltdown could occur. And I would suppose at the very least, I would hope that the book might encourage people to get out and vote because I do think that the best way to avoid a meltdown in the fall is to hand Trump a decisive defeat. I do feel that if he's beaten decisively, his opportunities to engage in constitutional brinkmanship will be very dramatically limited. And then I suppose the other interest is by kind of laying out these possible nightmare scenarios, is to hopefully stimulate some type of legislative changes further on down the line.
Wade Roush: From everything that Trump has tweeted and said, it's a pretty good prediction that if he were defeated narrowly in November, he would refuse to concede. What would constitute a clear and emphatic victory by Biden? How many Electoral College votes would he need to make you feel comfortable that any sort of resistance would fail?
Lawrence Douglas: Let's say he receives 300 Electoral College votes. So 270 is needed for victory. He receives 300. Is that a landslide? By no means is that a landslide. But if that's the case, that in all the, let's say, states in which the outcome was relatively close, that he nevertheless wins decisively in those states. And by decisively, again, I'm not talking about supermajorities. I'm talking about if he wins, let's say, 52 percent of the vote to 48 percent of the vote. That's a decisive victory. It's very hard to argue that that margin has been the result of, you know, fraudulent mail-in ballot. So I think that kind of margin of victory would secure us from the kind of mayhem that Trump could cause.
Wade Roush: Douglas says what he’s more worried about is a scenario where Biden wins in the Electoral College, but with a smaller margin of victory in the key states with lots of electoral votes.
Lawrence Douglas: If Biden has 300 Electoral College votes, but they're all turning on 10,000 vote victory in Wisconsin, a 15,000 vote victory in Pennsylvania, a 15,000 vote victory in Michigan, all of those will be challenged. And not only challenged by attorneys, but here is also the real danger: they also kind of lend themselves, that kind of razor slim margin of victory, it lends itself to the kind of conspiracy theories that Trump has patented, as you know, part of his political strategy.
Wade Roush: I totally get that. And I agree with you that the easiest way to head off a disaster would be just to make sure that everyone votes and that the election outcome is as clear as possible. But there's still part of me that feels like, geez, that just feels so undemocratic in a way. I mean, he's basically creating a situation where you need, like, almost a supermajority, a super convincing majority, to head off the possibility of conspiracy theorizing and grousing and legal challenges. And that's just not the way the system should work.
Lawrence Douglas: That's an absolutely brilliant and terrific point. It's not like, oh, well, only if you receive 60 votes and I receive 40 do I then recognize that you've won. That's not the way a democratic system is meant to operate. And I think you're absolutely right that in a sense, that's what Trump has done. He's kind of moved the goalposts. And it's an incredibly dangerous thing for a president to be doing.
Wade Roush: So, I do want people to read the book, but I'd also like you to maybe give away a little bit of it by summarizing what you see as the biggest vulnerabilities in the Electoral College system itself. And so, things like the possibility of faithless electors, the possibility of states certifying competing sets of electors. Can you walk us through some of what you see as some of the biggest flaws in the system?
Lawrence Douglas: Yeah. I should preface this by saying I find the system incredibly flawed. The Electoral College is an anachronistic and arguably dysfunctional way to choose a president. And there's no way that if we were trying to come up with a new method of electing a president, we come up with anything that remotely looks like the Electoral College. You mentioned the business about faithless electors, so maybe I'll just start with them for a moment. So if you actually go back and look at the original design of the Electoral College, the idea was that the framers of the Constitution really didn't trust average people to choose who the president should be. They really figured that people wouldn't have enough information about national political figures. And as a result of that ignorance, that choice couldn't be safely given to the American public.
Lawrence Douglas: And so they figured, well, we'll hand it to this body of electors, who are meant to be people of higher standing, of a high profile within our society, who are able to engage in a reasoned deliberation as to who should be our chief executive. That original logic of the system disappeared very, very quickly. And now we basically have the system in which the electors are figureheads who simply put a rubber stamp on whoever wins the popular vote within the state. And of course, it's a winner take all system. So if you can eke out a victory, a popular vote victory, in a particular state, you get all of that state's Electoral College votes. And the electors they meet, you know, in early December, in mid-December, and they kind of can engage in this kind of ceremonial function in which they place a rubber stamp on the results of the popular vote.
Lawrence Douglas: That's how they now basically should act. But they don't necessarily have to. So there is this problem of the faithless elector. And the faithless elector simply means that the elector who decides, ‘Yeah, I was pledged to Hillary Clinton, but I don't want to vote for Hillary Clinton. I want to vote for John Kasich.’ And for example, this happened in Colorado in 2016 where there were three Colorado electors who decided that, they were trying to find an alternative to Donald Trump. And they thought, well, maybe John Kasich could be the alternative. So rather than vote for Hillary Clinton, who won that state, they tried to cast their votes for John Kasich. And then you might say, well, are they allowed to do that? Can they do that? And the answer is, well, we'll find out in the next few days because the Supreme Court is about to hand down a decision again, the first time it's ever decided this in the nation's entire history, but they're trying to decide whether laws that bind electors are constitutional or not. It looks like I mean, if I were a betting person, I'd probably say, yes, the Supreme Court is going to uphold these laws. They're going to uphold laws which say that states can try to force people, electors, to vote according to the way they were pledged to vote.
[Addendum, July 7, 2020] Wade Roush: I’m gonna hit pause here and jump in with an update. I recorded my interview with Lawrence Douglas on June 19 and I published the original version of this episode on June 25. On July 7, the Supreme Court did indeed rule on a pair of faithless elector cases from Washington State and Colorado. The court said unanimously said that states do indeed have the power to punish or replace electors who change their votes. If the ruling had gone the other way, it would have freed electors to vote for whomever the want, which would have undermined an already creaky system and unleashed certain chaos this November. So at least we don’t have to worry about that scenario. But as you’re about to hear from Douglas, the court’s decision doesn’t solve the underlying problem. Okay, now back to our June 19 interview.
Lawrence Douglas: And then you might say, OK, well, then that solves the whole faithless elector problem. And the answer is no it doesn't at all. And the reason it doesn't solve the faithless elector problem is because firstly, there are 18 states that don't have any penalties at all if an elector votes faithlessly. And some of these states involve include our key swing states such as Pennsylvania. And then the states that do have some kind of penalty, some of them, they leave the faithless vote intact, but they simply fine the elector. So the elector receives a thousand dollar slap on the wrist. And yet the vote continues to count. Not a good way to decide a presidential election.
Wade Roush: What's a scenario where faithless electors could play a role in thwarting a legitimate victory by Biden in November?
Lawrence Douglas: You could imagine a situation of, so let's say Biden wins with the kind of very slim margin that George W. Bush had in the year 2000. So he gets 271 Electoral College votes. And yet he wins pretty decisively in every state. So he carries, let's say, Michigan, and he carries Michigan by 52 to 48 percent. But when it comes time for Michigan's electors, that is the slate that is committed to Biden, on December 14th when they meet in Lansing in the state capital, to ceremonially cast their votes, for some reason, two of the electors cast their vote for SpongeBob. Suddenly, Biden has 269 Electoral College votes and not 271. 269 is not an Electoral College majority. He's not been elected president of the United States.
Lawrence Douglas: And again, you might say, well, could we prosecute these people if they've accepted a bribe? The answer's yes. We could prosecute them. Can we get rid of their vote? Let's say Congress when Congress meets on January 6. So Congress gets their electoral certificate from Michigan on January 6. And again, this is meant to be a ceremonial function on the part of Congress. They open the electoral certificates. They count it up. Usually this lasts about half an hour. Everyone kind of goes home. But they open up Michigan's electoral certificate. And they see that two of the electors have voted for SpongeBob. And now they say, well, that's crazy. That's completely crazy. We're not going to count those electors. We're just gonna expunge them from the total. What does that mean? Does that mean you expunge them from the numerator? And the numerator means, what describes the electoral majority? So it longer is 271. It's 269. Do you also expunge that from the denominator?
Lawrence Douglas: If we again, do our very fancy math, it seems that 269 would still be a majority of 536, but 269 would not be a majority of 538, which is what would happen if you don't remove them from the denominator. So we're back to this key critical question. We go running to the Constitution. And we see the Constitution doesn't tell us what the consequences of expunging an Electoral College vote are. So, then you run to federal law and there's a federal law from 1887, and this federal law from 1887 is called the Electoral Count Act. Well, that sounds very promising. And we flip through the pages of the Electoral Count Act to discover what it says about the consequences of expunging an Electoral College vote. And what does it say? It says absolutely nothing. It doesn't tell us either. And so at that point, you have the presumably the House, which is controlled by Democrats saying that, well, expunging votes, you have to eliminate them from the denominator as well, handing Biden the victory. And the Senate comes along and says, ‘No, no, we don't recognize that. You expunge them only from the numerator.’ The denominator remains 538. We don't have a president-elect.
Wade Roush: Now, closely related to that scenario and potentially even simultaneous with that scenario. You can imagine one where Governor Gretchen Whitmer, a Democrat of Michigan, submits her certificate, her certified electoral votes to Congress on January 6th. But the state legislature in Michigan, which is controlled by Republicans, submits a competing slate of electors. So the problem then becomes for Congress on January 6th, which one of these slates is the, quote unquote, real one? And you're sort of right back in the same situation, right, where the House, controlled by Democrats, might favor Whitmer's slate and the Senate might favor the legislators' slate.
Lawrence Douglas: Yeah, and if I can if I could just expound a little bit about how that could happen. And I think that is probably a greater danger come this fall than the faithless elector danger. Again, the faithless elector, is it a possibility? Absolutely, it is a possibility. But I think a far bigger danger has to do with the competing certificates being sent from the legislature and the governor. And the reason I say that could easily happen is because of the increased reliance on mail-in ballots. And if I can just quickly connect these points.
Wade Roush: Yeah, please do.
Lawrence Douglas: We've already seen that Trump is engaged in this kind of preemptive attack on the use of mail-in ballots. And your listeners might be asking, why is he so obsessed with mail-in ballots as opposed to other forms of balloting? Well, come this fall, it is clearly the case that people in urban areas are going to be concerned about exposing themselves to the health risks of voting in person. And as a result of that, they're going to rely very heavily on mail-in ballots. People in urban areas tend to vote overwhelmingly Democratic. So to the extent that you can either, one, limit their access to mail-in ballots, or try to de-legitimate the use of mail in ballots, you're already trying, in a sense, to kind of push the vote in a Republican direction.
Lawrence Douglas: Now, the way that could play out on November 3rd is, you could imagine that, let's go back to a state like Michigan, that in Michigan come November 3rd, Trump has a very narrow popular vote lead. Let's say he's leading by 10,000 votes on November 3rd. Well, another critical feature about the use of mail-in ballots is that mail-in ballots are usually not tallied until days or even weeks after the election. Especially if these overworked election officials are being inundated with a huge number of mail-in ballots come Election Day or the couple of days after Election Day. So Trump already declares victory on November 3rd. He has this narrow lead. And then come, you know, so let's make a date, November, a week later, November 10th or November 15th, once Michigan finishes counting all its mail-in ballots, that lead has disappeared. And now it's Biden who leads by 20,000 votes.
Lawrence Douglas: Now, one other thing I would add to our little complicated scenario here is, there are going to be irregularities in the counting of mail-in ballots. There are irregularities in the counting of all votes. Again, you're working with overworked people, undertrained people, who are going to make what we might describe as harmless errors. But once they make those harmless errors, you will have Trump tweeting aggressively that ‘We can no longer trust the post-election result. We have to go with the November 3rd result.’ And again, you might say, well, here, isn't this the professor just kind of spinning out hypotheticals? And the answer is no. He already did this in 2018. In 2018 in the Florida senatorial race, Rick Scott had a pretty substantial lead on the vote on Election Day and saw that lead almost vanish as the mail-in ballots in urban areas were counted. And we saw Trump aggressively tweeting that ‘We have to go with the Election Day result. We can't trust the count that includes these mail-in ballots. They're all tainted with fraud.’ And it's very possible and likely that he would trot out that same argument in November.
Lawrence Douglas: Now, this goes back to the earlier point that you made, Wade, is that you can imagine Republican state legislators agree with him, saying in Michigan that, yes, we're going to go with November 3rd, not with the full canvassing of the votes that didn't take place until November 15th. So we're going to certify Trump's slate of electors and we're going to send that to Congress. And then again, you could have Gretchen Whitmer coming along and saying, no, I'm going to recognize the full state canvass, the results that we received in, let's say, November 15th. I'm going to recognize Biden's slate of electors. And I'm going to send that slate on to Congress. And again, it's a little technical, but now Congress is receiving conflicting electoral certificates with the overall election hanging in the balance. And that really is a recipe for chaos, stalemate, gridlock.
Wade Roush: Now you can imagine that if we had a functioning Congress, there’d be a debate over the conflicting electoral certificates leading to some kind of rational compromise. But of course that’s not the Congress we have. And the Republican party, specifically, operates inside a kind of force field of unreality created and sustained by the president.
Wade Roush: So there's a chapter where you draw a very useful distinction that I really liked. And it was a distinction between what you called Trump's sort of first order lies, which are just matters of simple untruth. And what you call meta-lies. So could you explain that a little more? What do you mean by meta-lies?
Lawrence Douglas: The simple, straightforward lies are when he claims that something happened that didn't happen, or something didn't happen that did happen. But the meta-lies is when he lies about the institutions within our society that are meant to test normal propositions for their truth value. So, for example, when you lie about, if you say something like ‘The New York Times is making stories up,’ well, then what you're doing is you're discrediting the very institutions within a democracy that are responsible for basically subjecting our ordinary statements to verification. And that is a really dangerous situation, because if you are both not telling the truth and not telling the truth about the institutions that are supposed to be testing whether you tell the truth, then basically you have eroded all faith in truth-testing mechanisms within a democracy. And a democracy presupposes, it presupposes that citizens make informed choices. And if you deny them access to any kind of source that can supply them with reliable information, by impugning the reputation of that source, then basically you're the source of truth. And I think that's what Trump tries to do. He tries to install himself as the voice of truth. And for tens of millions of Americans, they seem to accept that.
Wade Roush: And one of the ways this could apply in November is that the fact that Trump is not just a good liar, but a really good meta-liar, could go to the thing we were just talking about, the mail-in ballot question, for example. The harder he works to undermine faith in the integrity of the absentee ballot or mail-in ballot system, the easier would be for him to question the outcome of those votes as they roll in after November 3rd. Right?
Lawrence Douglas: Exactly. And because once you start poisoning the well, once we start saying, look, we don't know who to trust—and again, I do think it's the case that tens of millions Americans trust Trump—but I think what is so destabilizing about his attack on, both these lies and meta-lies, is that they basically say we just don't know who to trust. And if we don't know who to trust, then we can't necessarily trust the organs who are saying, ‘No, these these mail -ballots are reliable, believe us.’ And that is an incredibly dangerous situation for a democracy to find itself in.
Wade Roush: OK. Up to this point, we've been talking about the way the design flaws baked into the Electoral College system could come back to bite us this fall. And I wanted to ask you to walk through with me three additional scenarios or three kinds of factors that could be additional spoilers or make the situation even worse. So the first one, and this is one that I've talked about before on the show, is breakdowns in the election system itself. We just saw in the primary elections in Georgia, for example, how voting machine problems caused gigantic lines that lasted all day. Some people, I don't know if anyone was actually turned away from the voting places, but certainly it was way harder to vote than it should have been in the regions or in and around Atlanta, which it goes without saying are predominantly Democratic. So do you see the Georgia situation as a potential preview of the kinds of chaos that could unfold on November 3rd?
Lawrence Douglas: Absolutely. We have, you know, 8,000, more than 8,000 different little election districts in the United States. And again, if you're talking about a very tight race, you know, arguably you could say the entire system is only as secure as the weakest link. So, yeah, I mean, you could easily imagine not simply long lines. You have new technologies being trotted out fail. You could imagine even, you know, a power failure. It could be the result of a natural disaster. It could be the result of a foreign adversary hacking into our electrical grid. And again, that power failure doesn't have to roll across the United States. It could be concentrated in Wayne County in Michigan, where Detroit is. Again, a heavily black area that votes overwhelmingly Democratic. And then what happens? Can you stage a revote? What is our federal law say about that? It doesn't say anything about that. And we really don't necessarily have contingency plans to deal with a problem like that. And these problems are very, very real. And again, in the best of circumstances, they could create chaos. And then when you have a president like Trump, you can imagine things turning out very, very badly after November 3rd.
Wade Roush: Ok. You already touched on my spoiler scenario number two, but it's about interference by Russia or other foreign actors, whether that means through social media disinformation campaigns like we saw in 2016, or something a little more bold and frontal like cyberattacks on the infrastructure or on voting machines. Do you see anybody taking convincing action to prepare for those possibilities?
Lawrence Douglas: You know, there are certainly obviously Americans and there are certainly people within the Trump administration who take those concerns seriously. I don't think Trump himself takes the concerns particularly seriously. But the question is, there's a big difference when taking those concerns seriously and having the resources on the ground to make sure that they don't cause potentially devastating damage to our system. And we simply haven't invested in those resources. And incredibly, it seems like even the integrity of our electoral system, which you would think, well, maybe that would be an example of an issue around which you could gain bipartisan support.—lo and behold, no. Mitch McConnell was very, very reluctant to release federal moneys so that states could upgrade their electoral systems to make them less vulnerable to fraud and to hacking. It is the case that the American electoral systems are less vulnerable than it was in 2016, but it still remains highly vulnerable. The best way to safeguard the system is to make sure that you have paper ballot backup to whatever kind of electronic voting takes place. I think in 2016, one out of every four ballots that were cast had no paper backup. I think that number now is down to about one in 10. So that's certainly an improvement. But when you're talking about one in 10, if you're talking about small margins of victory, all you need is to have a foreign adversary target these vulnerable systems and they have the capacity to create a great deal of chaos.
Wade Roush: And then scenario number three is the one where the covid-19 pandemic continues to roll on. That there are still lots of people concerned about going outdoors, going to public places, being inside polling places.
Lawrence Douglas: Right. So I think the covid pandemic situation makes it worse than in two separate ways. One, if you go back to, for example, this vote that took place in Wisconsin in April, and that was for the primary and also for some state elections, we saw that of the 180 polling places that were meant to be open in Milwaukee, only five were open. And so that arguably is a way of disenfranchising thousands of people, if they're unable to kind of get to the polling places. People could just get tired. They could walk away. They could be unwilling to submit them to subject themselves to the health risks. And then we have the problem with the mail in ballots. So you might have, again, a huge number of people relying on mail-in ballots rather than voting in person. So, again, that's the way in which the pandemic really can contribute to a lot of chaos come November 3rd.
Wade Roush: In his book Douglas quotes a Yale legal scholar, Jack Balkin, who says ‘The central task of constitutions is to keep disagreement within the bounds of ordinary politics rather than breaking down into anarchy, violence or civil war,’ unquote. So I asked Douglas if he could imagine a scenario where disagreement over the election outcome went outside the bounds of ordinary politics.
Wade Roush: Can you imagine a scenario where either Trump supporters or Biden supporters put their feet down and say, ‘No, that's not fair and we're not going to live with it?’ And how bad could things get in that scenario?
Lawrence Douglas: You’re absolutely right to think that this is a source of real concern. And the other thing I think I would emphasize is that, just in recent weeks, we saw two very, I think, disturbing examples of failures of presidential leadership. Or not even failures of presidential leadership—I think it would probably be more accurate to say, of a kind of authoritarian impulse manifesting itself in a way that could herald very bad things come the fall. The first was in order to gain political points against Democratic governors in some of these swing states, we saw that Trump tweeted out, “Liberate Wisconsin, liberate Michigan.’ And again, it is not as if he was making an argument for violence. But we saw the way in which his supporters kind of responded to that. And we had these incredibly disturbing images of heavily armed people in the statehouse. Not simply protesting outside, but inside the state capitols with their automatic weapons. The other thing we saw, which I thought was very disturbing, was the willingness of the president to call on the military for the purposes of responding to protests in the wake of George Floyd's murder. And we saw that, you know, but for Attorney General Barr and for Defense Secretary, Mark Esper, it seemed that Trump was willing to invoke the Insurrection Act of 1807. So, yes, I do think that the opportunities for unrest are real. We don't need to overlook the fact that if this is a country whose populace is armed to the teeth. And that it’s very easy to imagine that conflicts, demonstrations and counterdemonstrations end up in violence. And I don't want to say that I would imagine Trump necessarily encouraging violence. But again, it's this kind of dog whistle politics that he engages in, this politics of divide and tear-down. So all you need to do is send out a tweet along the lines of the radical Democrats are trying to steal our victory, and who knows how people are going to interpret that.
Wade Roush: So you finished writing your book way before George Floyd was killed by police in Minneapolis, and before the nationwide uprisings over systemic racism that we've been seeing in the last few weeks. I think that movement has shown a willingness by average citizens to rise up and protest on a scale that we haven't really seen since the ‘60s. It's harder for me now to imagine Trump being allowed to steal the election without causing millions or tens of millions of people to show up in Washington or in New York or in other population centers to protest and make it harder for him to stay in office. But as you just noted, in that scenario, it's also all too easy to imagine counterdemonstrations where you have people from the Boogaloo movement showing up, as they're already doing, at Black Lives Matter rallies, right, with weapons. So that feels like democracy in action. But it also feels like a recipe for a bloodbath.
Lawrence Douglas: Again, I share your concerns entirely. And, you know, I do think that it's important to point out that, you know, the counterdemonstrators, it's not as if they're just anti-Biden. That wouldn't be the point. The counterdemonstrators would be saying no, this our president has been re-elected and the Democrats are trying to, in a sense, stage a coup where, as Biden supporters could be saying exactly opposite. No, Biden has been elected and Trump is trying to stage a coup. And, you know, my hope is that you would have, you know, the political leadership trying to bring people together and trying to unify the nation and trying to walk back the specter or the possibility or the reality of violence. I'm not sure if we'd really see Trump engaging in that kind of aggressive walking back. He never fails to miss an opportunity to unite the nation.
Wade Roush: Now, I should point out here that on June 12, Fox News journalist Harris Faulkner asked Trump the Chris Wallace question, which is now also the Lawrence Douglas question. If he loses the election, will he go? And this time Trump’s response was different.
Donald Trump: Certainly, if I don’t win, I don’t win. I mean, you know, I’ll go on and do other things. I think it would be very sad for the country.
Wade Roush: I asked Douglas whether he took any comfort in that answer.
Lawrence Douglas: Not entirely, no. What we've seen is why attack the integrity of these mail-in ballots, if you're not already trying to create some kind of narrative to be trotted out come the fall. So, no, I don't find his reassurance particularly comforting. And the other thing we should probably mention is, he's offered reassuring statements about other things in the past, you know, at some point someone asks him, ‘So President Trump, do you believe up is up?’ and he said, ‘Of course, I believe up is up, who you would say up is down. No one would say that.’ And then two days later, it's ‘Up is down. It's only the failing New York Times, it's only the fake news people who are saying that up is up. Don't trust those people.’ So, no, I'm not comforted at this moment.
Wade Roush: I went on to ask Douglas what he thinks we can do now, here in 2020, to prevent or mitigate the kinds of problems he warns about in the book. His first answer was pretty obvious: line up the votes to make sure that the election has a decisive outcome.
He also pointed out that it would also change things dramatically if Democrats captured three or four Senate seats currently held by Republicans, since it would be the new Senate, not the current one, that would be deliberating in the faithless elector or competing elector scenarios.
A smaller thing that might still make a difference would be for political journalists and TV newscasters to stop treating election night like it’s a horse race where the winner is the first past the post. We already know it’s going to take days or weeks to count all the mail-in ballots. So the job of the Jon Kings and Wolf Blitzers and Anderson Coopers of the world should be to remind viewers that the results coming in on the night of November 3rd are provisional, not final. That could help prevent either candidate from trying to write off the mail-in ballots and declare victory prematurely.
But those are all short-term strategies. In the longer term, the only way to fix the fundamental design problems that Douglas writes about would be to go back to the Constitution itself and the body of election law that surrounds it.
Wade Roush: You point out in the book that the Constitution doesn't guarantee a peaceful succession of power. It presupposes a peaceful succession of power, which means basically it relies on the goodwill, the wisdom of leaders, politicians, and the power of democratic norms. Is there any way to encode that kind of stuff more deeply in the Constitution?
Lawrence Douglas: I'm not sure that there really is. You know, there are ways to maybe kind of change and amend this Electoral Count Act of 1887 so that, for example, if we have this kind of technical numerator-denominator problem that I describe, that we get a clear answer to that, that would be helpful. That would be helpful. But again, I think that it's like any kind of system. I don't think any kind of system can legislate its own normative basis. It has to be the way people are kind of socialized into accepting the system. There has to be kind of a constitutional culture.
Lawrence Douglas: There are other things, you know, that we could probably do. We could probably change our way of electing the president. That would be a helpful thing to do. But that would also be an exceptionally difficult thing to do, because if there's one thing in our Constitution which is as dysfunctional as the Electoral College itself, it's the way of amending the Constitution. Article 5 of the Constitution, which articulates how you go about amending the constitution, the amendment process is just too hard and it would be virtually impossible to amend away the Electoral College.
Wade Roush: You know, there's this old saying in American legal discourse that the Constitution is not a suicide pact.
Lawrence Douglas: Exactly.
Wade Roush: But it kind of feels like it is sometimes.
Lawrence Douglas: Justice [Robert] Jackson said, ‘However you interpret the Constitution, you shouldn't interpret it as a suicide pact.’ And yes. And then sometimes it seems that, I mean, for all its greatness, there are some really very dysfunctional aspects of the Constitution.
Wade Roush: My final question for Douglas was about, well, I guess you could call it the silver lining question.
Wade Roush: If the deep design flaws in the Electoral College are exposed in a catastrophic way, do you think that might create the spark that would be needed for some kind of fundamental reform?
Lawrence Douglas: I do have hope that there could be enough support for a legislative fix. And the kind of legislative fix I imagine, and again, this is something which many people are working on, it's a very promising approach. And the approach is to have states pledge to award their Electoral College votes not to the statewide popular vote winner but to the national popular vote winner. And if you get states that represent at least 270 Electoral College votes to sign on to that pact, then you've, in a sense, made a legislative end run around the Electoral College. Now we're back to this notion of the suicide pact because arguably that kind of scheme—there are people who would argue that that's unconstitutional. But again, I think too much is at stake for us to interpret the entire Constitution in such a crabbed fashion that we would rather see fidelity to the Constitution and catastrophic electoral results than a sort of a v relaxed approach to reading the Constitution that permits us to experiment with a way of electing the president which is A) more democratic and B) less vulnerable to a spectacular failure.
Wade Roush: The formal name for the plan Douglas is describing is the National Popular Vote Interstate Compact or NPVIC. So far, 15 states have joined the compact, representing 196 electoral votes. Once that number reaches 270 electoral votes, all the states in the compact would start pledging all of their electors to the popular vote winner, and that would be enough to guarantee that the popular vote winner always wins the presidency. That would be the “end run” around the Electoral College that Douglas talked about. It’s all a giant kludge, of course, and it won’t happen in time to help us here in 2020. But it does seem a lot more achievable than amending the Constitution.
Let’s be clear. When a system is as dangerous and obsolete as the Electoral College, it shouldn’t take a kludge or a catastrophe or a second Civil War to fix it. On the other hand, it kinda seems like that’s the American way.
Eventually, one way or another, the Trump era will end. That could happen on January 20, 2021. But speaking for myself, I’m bracing for a longer wait. Like I said, I’m a short-term pessimist and a long-term optimist. So I have a very simple hope. It’s that we don’t allow Trump to shred every last notion of sanity, civility, equality, and decency. Because we’re going to need them to start the long process of rebuilding.
[Music]
Soonish is written and produced by me, Wade Roush. Our opening theme music is by Graham Gordon Ramsay. And all of the other music in this episode is by Titlecard Music and Sound in Boston.
You can follow the show on Twitter at soonishpodcast. At our website, soonishpodcast.org, you can find the show notes and a transcript for this episode, as well as a link to Lawrence Douglas’s book Will He Go?
If you live in one of the states where the National Popular Vote Interstate Compact is still pending before the state legislature, one option would be to find out where your legislators stand on the issue and let them know how you feel about it. Right now that means New Hampshire, Pennsylvania, North Carolina, South Carolina, Virginia, West Virginia, Georgia, Ohio, Missouri and Minnesota. You can also get in touch with groups like Common Cause that are working to advance the project.
To support Soonish with a per-episode donation, please go to Patreon.com/soonish and check out the cool thank-you rewards. Every dollar you give helps to keep this independent podcast going strong.
Soonish is one of 10 independent podcasts that banded together over the last three years to form the Hub & Spoke audio collective. And this week I want to tell you about a new episode of Ministry of Ideas, one of the founding Hub & Spoke shows. It’s called “Climate of Denial” and it asks why so many people see climate change not as the scientific fact that it is, but as a belief they can somehow opt out of. Host Zachary Davis locates the roots of that attitude in some unexpected places.
Zachary Davis: The coal and oil industries have exploited two sets of beliefs about how knowledge is produced: post-modernism and Protestantism. These two ideas are in many ways philosophically opposed. But they nevertheless share one critical feature that makes widespread denial of scientific truth possible: an emphasis on individual experience.
Wade Roush: It’s a provocative argument, as always. And you can find that and every episode of Ministry of Ideas at ministryofideas.org. And you can find all of the Hub & Spoke shows at hubspokeaudio.org. That’s it for this week. Thanks for listening and I’ll be back with a new episode…soonish.
