A Perfect Storm?
Once again, the country may be sleepwalking into disaster. By Daniel Lazare
With newspapers and TV warning of an extended period of chaos and disruption beginning on November fifth, the big question is whether it’s real or all just media hype.
Short answer: it’s real. While predictions are impossible, chances are rising that a systemic meltdown may be in the works. Trouble can be avoided if either Trump or Harris wins so convincingly that the other side has no choice but to concede. But with Nate Silver reporting that less than two percentage points now separate the candidates in seven top swing states, the chances of that happening are somewhere between slim and none.
If so, the system could well shatter along a number of fault lines. One involves the growing use of mail-in ballots, which most states will not begin counting until in-person voting is completed. That means delay — days in the best-case scenario but weeks in the case of Georgia, a crucial swing state in which Republican election officials are insisting on their right to count mail-ins by hand. If the count drags on, tensions will rise — especially if litigation takes hold. With more than 300 state and federal lawsuits already filed, according to Richard Briffault, an elections expert at Columbia Law School, the upshot could be a lengthy legal snarl that sends temperatures shooting through the roof.
If the process goes on long enough, moreover, it could conceivably bump up against other deadlines, which will cause temperatures to rise all the more. One is Dec. 11, which is when any and all voting disputes are supposed to be resolved, while another is Dec. 17, the day that members of the Electoral College are supposed to gather in their respective states to cast ballots. January 6, of course, is the really big deadline since it’s when Congress meets in a joint session to certify the results. But if Trump is lagging, two developments could throw a monkey wrench into that, too. One will occur if the GOP not only retains control of the House next month but wins back the Senate, too, which means it will be firmly in control of the joint session and, hence, of certification.
The other potential monkey wrench concerns whether Republicans succeed in convincing themselves in the interim that so many voting irregularities have taken place as to render the entire process irretrievably tainted and marred. This is what the Republican rank-and-file wants to believe, and so the pressure will be intense for Republican senators and representatives to believe it, too. Denying certification means turning the contest over to the House, where Article II, Section One, of the US Constitution stipulates that “the votes shall be taken by states.” Since Republicans currently control 26 out of 50 state delegations and are all but certain to continue doing so after a new Congress takes office on Jan. 3, any such move means that Trump will win regardless of what happens at the polls.
This is the trick that Trump tried to pull off in January 2021, but one that fell short for a variety of reasons: Vice President Mike Pence refused to go along, Republicans were too shocked and confused to cooperate, no detailed plans had been drawn up, and it was all on the fly. But it could succeed a second time around because the entire GOP has fallen in line behind the stolen-election myth and the Trump team has had more than three years to prepare.
As Trump put it this summer on Truth Social: “The Dems can’t win on their policies, the only way they can win is to CHEAT. They do it at every level of government, and they do it well.”
An ostensible Democratic victory will thus be seen as further proof that Dems are up to their usual dirty tricks and deserve to lose as a consequence. Referring the contest to the House will ensure it happens. Heads Trump wins, tails Dems lose.
Again, this is all just speculation. But it’s informed speculation of the sort that tells us that a car with faulty brakes and a defective steering mechanism is heading for trouble as it speeds into a hairpin curve. It may emerge unscathed. But passengers should brace themselves in case it doesn’t.
If the United States is heading for something similar, structure will have a great deal to do with it. If an ideal voting system is one that is simple, transparent, fair, and equitable, then the American version is the diametric opposite. It’s a giant Rube Goldberg machine that is overly complicated, poorly run, and rife with opportunities for unscrupulous politicians to wreak havoc.
Astonishingly, the system places responsibility for federal elections not in the hands of the federal government but in the 50 states, many still ringing with resentment of federal authority left over from the Civil War. State control is why voting qualifications vary from location to location and why votes are weighed differently thanks to the Electoral College, itself an enormous sop to states’ rights. It’s why a vote in Wyoming (population 577,000) counts exactly 3.74 times as much as one in California (population 39.5 million), while votes in territories like Puerto Rico and Guam don’t count at all. While local secretaries of state are nominally in charge of voting, the real power lies with 3,000-plus county election boards that have enormous leeway in designing ballots, setting hours, and hiring workers. Jeffersonian democratic theory tells us that local government is best because it’s closest to the people. But the reality is confusion, chicanery, and amateurism. It’s why Al Gore lost in the year 2000: because, thanks to local control, officials in Palm Beach, Florida, had a free hand in designing a “butterfly ballot” that was largely indecipherable due to “hanging chads.”
Once a Republican-controlled Supreme Court declared George W. Bush the winner even though he was trailing in both Florida and the nation as a whole by more than half a million popular votes, American democracy, such as it is, took a giant step downhill. By October 2020, confidence had fallen to the point that more than 40 percent of both Republicans and Democrats were so suspicious that they were telling pollsters that the other side could win only if the election were rigged. By January 2022, 56 percent of Republicans said that blue-state officials would not accept election results if their own side lost, while 67 percent of Democrats said the same about the GOP.
This is what bipartisanship means in 21st-century America: general agreement on both sides of the aisle that the electoral system is a disgrace. Currently, both Republicans and Democrats have legal teams on standby in case trouble erupts in some distant polling place or other – and, who knows, maybe all those high-priced lawyers with their briefcases and laptops really will see to it that honesty and good sense prevail. But with Election Day fast approaching, it’s just as easy to imagine the opposite, which is that throwing more lawyers at the problem will lead to a nightmare of litigation that makes matters even worse. It happened in 2000 and could happen again in 2024-25.
Ultimately, the real problem with the US electoral system is that it is organic. Instead of sitting down and designing a system that is fair, efficient, and democratic, which would be the rational thing to do, Americans have made do with a structure that evolved out of bits and pieces of constitutional text, judicial decisions, and local practice. It just happened, and once it did, it was effectively unchangeable. Like so much else in American society — a malapportioned Senate, an undemocratic Electoral College, a gerrymandered House, an autocratic Supreme Court, etc. — it is impossible to fix. So Americans can only stand by and watch as the system careens downhill.
Is that what the coming weeks and months hold in store for us, i.e., a general meltdown that leaves everyone wringing their hands in dismay? If so, one thing is certain. Eminent authorities will declare that this time, something really, truly has got to be done. And yet nothing will. Once again, the country may be sleepwalking into disaster.