Photo-Illustration: Megan Paetzhold. Photos: Getty Images
Tad Devine was the top strategist on Al Gore’s 2000 campaign for president and the Florida recount that followed it. To the battle-scarred veteran of dozens of political contests across the globe, however, the election he’s worked on that is most similar to the 2020 presidential campaign was one in Honduras in 2005. Throughout that race, he was concerned that his candidate would be denied office, even if he won. For the first time in his long career, Devine has similar anxieties about a major American election. (The Honduran candidate did win and did take office — but was later ousted in a coup.)
Devine described the U.S. election in 2000 — functionally decided by the Supreme Court after weeks of recount chaos — as “unprecedented,” but he noted that “both sides, Bush and Gore, behaved within established frameworks and parameters.” In contrast, 2020 “is not a normal period of time in America,” he said.
With less than seven weeks to the general election, both Democrats and Republicans are preparing for a drawn-out fight to decide who serves the next four years in the White House — with at least some of the fighting taking place for an unknown duration after Election Day. There are some practical reasons for this: The contest will see an unprecedented number of absentee ballots and is occurring in the midst of a pandemic; there’s also the fact that the sitting president is, on an almost daily basis, making false and outlandish claims of voter fraud. But this election is also different in that increasingly both parties seem to be expecting chaos and uncertainty after votes are cast — and preparing for that chaos, with the hope of emerging triumphant, has become a key part of the overall campaign strategy. It’s a new political world in which November 3 doesn’t necessarily mark the end of the campaign but the beginning of a new phase.
Trump violates political norms on a daily basis, and the damage that his rhetoric and tweets have done to democratic institutions has altered American politics in fundamental ways. But top Democrats have now also begun talking about strategies for winning the postelection period that in the recent past would have fallen outside standard political norms for a presidential election. Recently, Hillary Clinton advised that “Joe Biden should not concede under any circumstances.” She continued: “I think this is going to drag out, and eventually I do believe he will win if we don’t give an inch and if we are as focused and relentless as the other side is.” A study group featuring Clinton’s former campaign manager, John Podesta, floated a scenario where Democratic governors of states that went narrowly for Trump might try to flip their Electoral College votes to Biden.
Campaigns have always prepared for legal issues. Ben Ginsberg, a veteran Republican election lawyer, told Intelligencer, “In normal times, campaigns approach Election Day and what comes after in terms of preparing for recounts and contests in terms of state law and federal overlay. They’ll still have to do that in 2020, but the reality is 2020 is going to be completely different because of the onslaught of absentee ballots, which stands to throw off the timing of election results.” (Ginsburg, who recently retired from the active practice of law, drew attention recently for his Washington Post op-ed that pushed back on Trump’s claim that elections, specifically those using absentee ballots, were “rigged” and noted that there are minimal cases of voter fraud in the U.S.)
What makes the fight over absentee ballots particularly thorny in 2020 is the expected partisan skew to them. Traditionally, there is a relatively minimal partisan variation to the mail vote, but the higher level of concern among Democrats over the pandemic combined with cries of fraud — particularly from Trump and Fox News — have changed the composition of the electorate that votes early. So far, in states that report absentee-ballot requests by partisan affiliation, over 7 million more Democrats than Republicans have requested ballots. In the August primary in the swing state of Michigan, between 70 and 80 percent of Democrats voted absentee, while only 45 to 55 percent of Republicans did the same.
A Biden aide told Intelligencer, “The campaign is actively planning for, and is prepared to address, all contingencies and scenarios” while building what was described as the largest election-protection program in American history, featuring two former solicitor generals. The Democratic National Committee has actively invested in voter protection as well and placed staffers specializing in election-law issues on the ground in 20 different states ahead of the November election. In a statement, the Trump campaign’s general counsel said, “Democrats are working to shred election integrity measures one state at a time, and there’s no question they’ll continue their shenanigans from now to November and beyond … Republicans are preparing every day for the fight and will be ready on Election Day and after,” and the Republican National Committee is deploying a mix of volunteers and attorneys to contested states in November.
The incumbent president has so frequently claimed voter fraud and preemptively undermined confidence in the American electoral system that his complaints barely get treated as news when he reiterates them. It may be a tradition for losing candidates to gripe about the results, but Trump may be the first sore winner. He has long falsely and without any factual basis claimed that he was cheated of a victory in the popular vote because of massive voter fraud in California. It all contributes to an era of distrust, when the losing side is likely to be suspicious — or worse — about the results.
Miles Taylor, the former chief of staff of the Department of Homeland Security who has become a vocal Trump opponent, warned Intelligencer that Trump has “no restraint whatsoever. He will not, mark my words, be able to resist the temptation to call states in his favor before they’ve been called … He will pull all out all the stops to get popular support and influence the outcome.”
Devine, who worked for Bernie Sanders’s presidential campaign in 2016 and Andrew Yang’s upstart bid in 2020, has a darkly pessimistic view of what’s to come this year. “The full executive power of the presidency is bestowed in the hands of a man who is capable of doing anything and has demonstrated that he has taken actions completely outside of any precedent or norm, and I think that’s a real threat to American democracy.”
Democrats are responding by gaming out all the worst-case scenarios for the election and building an infrastructure should any come to fruition. These include a war-games-type exercise over the summer supervised by Georgetown law professor Rosa Brooks — Podesta and other prominent Democrats and dissident Republicans participated — that studied four different scenarios. She described the result as “fairly depressing with three of the four scenarios ending in a full-scale constitutional crisis.”
The preparations for a result in which Trump decisively won the Electoral College while losing the popular vote raised the most eyebrows. Republicans have long accepted that Trump has no chance of winning the popular vote. However, the scenario raises spotlights a situation where Trump fulfills the constitutional requirements for winning an presidential election, but many Democrats — including party leaders and elected officials — are reluctant to accept that victory because it doesn’t include a mandate from a plurality of voters. In that scenario, as gamed out by Brooks and her collaborators in the project, Democrats tried to challenge the results and demanded concessions like statehood for Washington, D.C., and Puerto Rico before accepting Trump’s win.
Brooks said that “during our exercises, both campaigns tried to bring supporters in the streets.” However, Brooks’s biggest takeaway was that “a lot of people playing the Biden campaign and Democratic elected officials tended to approach [the scenarios] in legalistic ways and participants playing the Trump team, most of whom are experienced Republican consultants and activists, routinely were ruthless from the first moment.”
In preparation for a contested result, a broad coalition of progressive groups has formed an organization called Protect the Results. Leah Greenberg, the co-executive director of Indivisible, a progressive advocacy group behind Protect the Results, told Intelligencer that while the goal was to ensure a Democratic landslide to avoid any controversy, this served as a backup plan so that there would be “coordinated nationwide outrage that influences national narrative” in the case of malfeasance by Trump. She said, “We recognize based on what happened in 2000 [during the Florida recount] that the national narrative is really crucial.”
That so many ballots will be cast absentee in 2020 increased the importance of this as well. Greenberg noted that “it’s entirely possible we won’t know the results after polls closed. That’s normal. We need to be patient and, if during that period of time Trump tries to claim that [the election is over and he won], it is going to be important to assess that as having no credibility whatsoever and for our side to push back aggressively.”
The specter of Republicans being more ruthless than Democrats — an impression rooted in the GOP’s aggressive handling of the 2000 Florida recount — combined with concern over Trump’s unique personality, seems to be the driver behind much of this concern and leading to statements like Clinton’s recent advice for Democrats not to concede and be “relentless.”
But the real-world versions of these scenarios, in the event of a close election and suspense over the count of absentee ballots, have the potential to set off an escalating constitutional crisis. That’s in part because of the fixed timeline for the presidential election to be resolved. By statute, electors have to assemble in their individual states on December 14 to cast their ballots and they have to be formally counted in a joint session of Congress on January 6. And then, on January 20, the Constitution provides that Donald Trump’s term will end at noon.
In other contested elections, there is not necessarily this tight timeline. Rick Pildes, a professor at New York University, points to the epic recount between incumbent Republican senator Norm Coleman and Democrat Al Franken in 2008 that resulted in Franken not being declared the winner until June 30, 2009. “On one hand, this is a story of how the process given enough time in a way that generates a fair amount of acceptance of relevant voters. But that process took something like nine months to complete, and in presidential elections, we don’t have anywhere near the kind of time.”
This could lead to a constitutional crisis of a magnitude not seen since the post–Civil War era, when the contested election of 1876 left the U.S. at the brink of collapse before a cobbled-together compromise restored order at the price of ending Reconstruction and bringing about the eventual rise of Jim Crow.
As Ginsburg noted, “The Electoral College has not really been stress-tested,” and the existing statutory framework, developed in the aftermath of 1876, has been described as “gibberish” by one academic expert. If this test does occur, there is the possibility for all sorts of chaos.
In swing states with slow counts, like Pennsylvania and Wisconsin, both Democratic governors and Republican legislatures could claim a mandate to certify a slate of electors based on contradictory results and try to force a joint session of Congress, still presided over by Vice-President Mike Pence, to decide who legitimately represents the will of the voters.
This potentially brings into play scenarios as obscure as a contingent election of the president by the House of Representatives, which last occurred in 1824 — or as outlandish as a total political deadlock leading to Nancy Pelosi being sworn in as acting president on January 20 because no president or vice-president has been duly elected.
The question is how such nightmare scenarios can be avoided.
Devine believes that better baseline polling data could help provide some clarity even with a delayed count on what the final result will be. He is pushing for media organizations to have an extensive national exit poll including a series of tracking polls starting two to three weeks before the election to take into account those who have already voted in order to help “yield a certifiable result that the public could have confidence in” in case Trump claims fraud. Devine said he did the same thing in Honduras in 2005 to make it more difficult for the election commission to do anything underhanded.
Still, a clear Biden win in Florida on Election Night is likely to avert all the worst-case scenarios. Based on current polling data, it would be almost impossible for Trump to win the Electoral College without Florida’s 29 votes. As one veteran Republican operative put it, “If Florida goes for Biden, everything else is mostly going to go away.” Already, that reasoning has been cited as one key element of Michael Bloomberg’s decision to fund a $100 million advertising blitz there on behalf of Biden.
But there is no way to precisely foretell what will happen or if 2020 will end up in a nightmare scenario like 1876. However, even in a normal year, there is the potential for dire scenarios and campaigns have to prepare accordingly. And if there is any bipartisan consensus left in the U.S., it’s that 2020 is not a normal year.