Balkinization: Will He Go?: An Interview with Lawrence Douglas

Will He Go?: An Interview with Lawrence Douglas

Guest Blogger

I recently spoke with Lawrence Douglas (Amherst) about his new book, Will He Go? Trump and the Looming Election Meltdown in 2020 (Twelve Books, 2020).

JB: Why did you write this book?

LD: Shortly after Trump’s inauguration, I began writing contributing opinion pieces for The Guardian. My very first piece was about Trump’s claim that three to five million illegal voters had robbed him of a popular vote victory over Hillary Clinton. At the time I wrote, “that same script could be called upon four years from now should Trump lose a re-election bid. Whatever damage candidate Trump could have done to American democracy had he lost in November would pale in comparison to the damage wrought by a sitting president rejecting his defeat.” That concern animated the writing of the book.

JB: Everyone probably wants to know your prediction. Will Trump willingly leave office if he loses in November? What are his incentives?

LD: In my book, I distinguish between conceding defeat and submitting to defeat. I understand conceding to be a normative act, in which the candidate acknowledges the legitimacy of their defeat. Submitting to defeat, by contrast, is simply a losing candidate’s de facto recognition that further fight is futile. I cannot imagine Trump conceding defeat—it’s not in his DNA to do so. If he loses decisively—and by that, I mean not only in the electoral college vote but also in the popular vote of the swing states—he will have no choice but to submit to defeat. But if his loss turns on the results of mail-in ballot submitted in swing states, then I believe Trump will aggressively work to dispute the result. His reasons for doing may be multiple. He might be concerned about exposing himself to criminal charges should he leave office. More generally, I think that Trump’s concern with protecting his brand and his need to remain the focus of attention means that losing is not an option.

JB: Has any part of your analysis changed since writing the book?

LD: Two things stand out. First, thanks to his epic failure of leadership in response to the Covid pandemic, Trump is a far more vulnerable candidate now than when I completed the manuscript. Second, as a result of the nation’s failure to control the pandemic, an unprecedented number of Americans will be voting this fall by mail-in ballot. Both facts make the scenarios that I describe in the book all the more likely. I say this because Trump has already made it abundantly clear that he sees discrediting mail-in ballots as key to his strategy of contesting his possible loss. It’s not hard to imagine how this could play out: Trump could enjoy a slim lead in the key swing states on November 3—a lead that vanishes once the mail-ins start getting counted in the days following November 3. And yet all the while Trump is pushing his insistence that only election day results should count; indeed, he brazenly declares that his disappearing lead simply proves his claim of mail-in fraud. Delays in the counting of these ballots increase the possibility that our key swing states—all controlled by Republican state legislatures—certify Trump as having won. And so, like in 1876, we can imagine Congress finding itself confronted with competing electoral certificates at its joint session on January 6, 2021.

JB: A lot of the book is devoted to nightmare scenarios involving the Electoral College and the Electoral Count Act of 1887. Could you explain some of the problems with how the two interact, and why they are a recipe for disaster in a close and bitterly contested election?

LD: The Electoral Count Act was passed in the wake of the disastrous Hayes-Tilden election of 1876, when three states—Florida, South Carolina and Louisiana—submitted conflicting electoral certificates to Congress. At the time, Congress was divided as it is now, with the House controlled by the Democrats and the Senate by the Republicans. As a consequence, Congress found itself stalemated, unable to decide which certificates to recognize. Complete electoral meltdown was averted only two days before inauguration day, and the compromise that installed Hayes in the White House spelled the end of Southern Reconstruction, paving the way to the rise of Jim Crow in the South.

The ECA of 1887 was designed to aid Congress should it ever again be confronted with conflicting certificates. The idea was that the best way for Congress to deal with such problems was to make sure that they don’t end up in Congress’s lap in the first place. The law basically says that Congress will abide by a state’s certification as long as it’s submitted in a timely fashion. Unfortunately, the law provides all the sound guidance and clarity of a rulebook that says, “Do ‘A’ unless there are good reasons not to do ‘A’.” The law is a mess.

JB: What about the courts? Can they be of any help? Will they be of any help?

LD: The courts will inevitably get dragged into disputes over the submission and the counting of mail-in ballots. The ongoing mess in the primary in New York’s 12^th congressional district gives us a foretaste of the chaos that could attend the count of the November vote. Litigation will day the final count, meaning that we might not know who has won the election until weeks after November 3. We saw SCOTUS intervene in 2000 to put an end to that election dispute, and yet I would argue that it was Al Gore, who, by graciously accepting the Court’s poorly reasoned and transparently partisan decision, brought closure to that fraught dispute. Should, however, an electoral dispute land in Congress’s lap—as was the case in 1876—then I think we need to abandon hope that SCOTUS could guide us to terra firma. It will be up to the new Congress to get us out of the mess—if it can.

JB: Is there anything individual state governments can do right now to head off calamity?

LD: They should be testing and retesting all their voting machines to make sure that we don’t encounter any of the problems that Georgia experienced in its June primary. States should be establishing clear protocols on how election officials will process the huge volume of mail-in ballots while practicing safe-distancing. States that don’t even begin counting submitted mail-in ballots until election day itself—and this includes our crucial swing states of Pennsylvania, Michigan and Wisconsin—should change their laws now so that election officials can get a jump on counting. States that determine the eligibility of mail-in ballots based on their postal date should change these laws as many envelopes will not have clear postal dates, a problem that will invite litigation and will slow the counting process. States should recognize that the US Postal Service, presently under siege by the Trump administration, will struggle to deliver all the mail-ins in timely fashion and should adjust their submission dates accordingly. Alas, because the suppression and rejection of mail-in ballots, particularly those coming from urban areas, will work to the benefit of Trump and down-ballot GOP candidates, these commonsense acts of preparation will be tied up in partisan disputes.

JB: Looking ahead, after the election, what are some reforms to our voting system you'd like to see? If we come through the election without disaster, what would you tell the next Administration?

LD: I would love to see us get rid of the electoral college, but if there’s one part of our beloved Constitution that’s as dysfunctional as the electoral college it’s Article V itself—the Constitution is simply too hard to amend. If we can’t get rid of the electoral college by amendment, it’s possible that we can make a legislative end-run in the form of the National Popular Vote Interstate Compact (NPVIC), in which states pledge to award their electoral college votes not to the state popular vote winner but the winner of the national popular vote. Whether the compact—assuming that states representing 270 electoral college votes do sign on (so far the compact has 196)—could survive constitutional challenge is far from clear, however.

More realistically, we can hope the new administration will aggressively work with Congress to safeguard our electoral system. For better or worse (more worse than better), states will continue to take the lead in the management of our elections, but the federal government can at least make sure that states employ reliable, hack-resistant machines and follow best practices for canvassing results. Our democracy cannot survive if we cannot protect the integrity of our electoral system and the trustworthiness of its outcomes.

Posted 4:00 PM by Guest Blogger [link]