Wargaming An Election Crisis

George Santayana famously stated, “Those who cannot remember the past are condemned to repeat it.” A corollary to Santayana’s observation is the lament that those who do remember history are condemned to watch others repeat it.* So it is that we stand watching the nation slouch towards another election involving Donald Trump like bystanders watching a train wreck in slow motion while powerless to intervene.

I don’t know what the outcome of the election will be. As I’ve been watching the polling closely over the past few weeks, two things are clear. One is that Kamala Harris has a clear lead in national polling. The other is that the swing states that will decide the election could go either way. That’s why they call them swing states.

Another thing that I’m sure of is that if Donald Trump loses, it won’t end the MAGA crisis. Trump’s supporters aren’t going to go away. Neither will his influence within the GOP.

That brings me to a third thing that I’m sure of: If Trump loses, he will again claim fraud and contest the election.

There are those who think that a decisive Democratic victory would make it less likely that Trump would try to repeat the aftermath of the 2020 election. A decisive victory might make his claims less plausible, but to quote Trump in 2020 from Jack Smith’s recent legal filing, “It doesn’t matter if you won or lost the election, you still have to fight like hell.” Trump will claim that he lost the election due to fraud whether he loses by one electoral vote or 100.

I’m sure that Donald Trump has no intention of conceding defeat because he is incapable of admitting any kind of defeat. The only question is how the post-election Trump-created crisis might play out.

For starters, Trump would not be a sitting president this year. As a private citizen, he has fewer resources at his disposal and a higher liability for criminal actions that he might make. Would this make a difference to Trump? I would have to say no because Trump is used to not being held accountable. He thinks he can get away with anything because he always has.

The crisis would likely start similarly to how it started in 2020. Trump will declare victory early before the absentee and early votes with their high percentage of Democratic ballots are counted. In some states, the counting might take days. Trump will take advantage of this lag by claiming that ballots are being:

a) discarded

b) added

c) changed

d) all of the above.

If you said “all of the above,” I’d say you’re correct. This isn’t a matter of conjecture, it’s a matter of taking Santayana’s advice and learning from history.

The next step will be lawsuits. The Trump campaign will likely sue to throw out ballots in swing states that Trump lost on any grounds they can think of. The groundwork is already being laid in Georgia where the state Election Board has introduced new guidelines for poll workers that could cause delays in the certification of results and require the hand-counting of ballots, both potential violations of existing Georgia law. Now the board is considering rules that would make it more difficult for counties to reject mass challenges to voter rolls, often made on flimsy pretexts.

In a close election, as all swing state elections are, casting doubt on the validity of the electorate is an easy way to cast doubt on the outcome of the election. We will also likely see the tried-and-true claims from 2020 that involve conspiracy theories about voting machines and the security of ballots. It doesn’t matter that these claims were proven false in 2020 because the Trump faithful still accepts them as true. They will believe them again. They’ll believe whatever Trump tells them.

Trump will almost certainly lose the lawsuits. Some will be dismissed on procedural grounds, but other courts will rule on the merits of Trump’s claims. In 2020, even the predominantly Republican Supreme Court was not receptive to Trump’s claims. Baseless claims result in lost cases, but Trump will simply claim that the legal system is biased against him, once again playing the victim.

Trump’s 2020 scheme of having the vice president throw out state electoral votes is a nonstarter this year, not only because Kamala Harris is the vice president, but also because Congress reformed the Electoral Count Act after the insurrection. The Electoral Count Reform Act of 2022 clarifies that the vice president’s role is ceremonial and tightens requirements for challenges to electoral votes.

From there, I see two possible strategies. The first is legislative in nature. There are a few opportunities in which Trump could pressure in allies in state legislatures to find a way to throw out the state’s election results in order to select an alternate slate of electors.

Looking at the rundown of state legislatures, five swing states have Republican legislatures. Those states are Arizona, Georgia, North Carolina, Pennsylvania, and Wisconsin, but the gauntlet is tighter when control of the governor’s office is considered. Of those states, only Georgia has both a Republican legislature and governor, but Brian Kemp is no friend to Donald Trump. Clearly, getting legislatures to throw out the decision of the voters is a long shot.

The Supreme Court would frown upon such a blatantly anti-democratic tactic as well. Last year, the Court “nuked from orbit,” in David French’s words, the independent state legislature theory. This was a shot across the bow of state legislators who might be tempted to overturn the will the the voters.

A second alternative would be to cast enough doubt on the validity of the election, possibly by delaying certification past state deadlines, that the legislatures would have a fig leaf to pick an alternate slate of electors. Again, this isn’t wild speculation. It’s what the Trump campaign tried in 2020.

That year, the Trump campaign prepared fake certificates in seven states that Trump lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin) that claimed Trump picks were the duly elected electors in those states. Some of these fraudulent electors were prosecuted but many were not. Georgia’s new lieutenant governor, Burt Jones, is a fake elector who escaped any accountability for his role in what really was a coup attempt.

To have any chance of either plan working, Trump would have to rely on intimidation. That’s where the army of MAGA supporters comes in.

I don’t believe that Republicans were fully prepared for their attempt to steal the election in 2020, but they have had four years to scheme for 2024. The Stop the Steal rally was a last-minute event, but I would be surprised if post-election rallies were not more organized and pre-planned this time.

There is also the potential for more violence. Many of the January 6 insurrectionists paid a price for their crimes in terms of jail time, fines, or both, but the Republican Party has spent four years rationalizing their actions and turning them into “heroes” and “political prisoners.” When you encourage, applaud, and excuse violence, you get more of it, and political violence would feed into Trump’s agenda of intimidation and chaos.

State lawmakers and governors would be pressured by crowds, threats, and possibly actual violence. Again, this is based on MAGA actions in the past. MAGA supporters have threatened government officials from poll workers to FBI agents to congressmen. My congressman reported receiving threats during the campaign for Speaker of the House.

The fallout may last beyond Inauguration Day. West Virginia Republicans have preemptively introduced a resolution that would prevent the state from recognizing “an illegitimate presidential election,” which presumably means any Harris victory. Such a resolution would be blatantly unconstitutional, but an injunction forcing the state to follow the Constitution and the will of the people would be seen as tyrannical by Trump supporters and might spark additional violence.

I would not be surprised to see other red states pass similar resolutions in their attempt to outdo each other in showing their loyalty to Trump. Would anyone be surprised, now that West Virginia has broken the seal on the idea, if Alabama and Texas didn’t follow suit?

One big unknown is how other Republicans would respond. In 2020, many prominent Republicans distanced themselves from Trump’s attempts to contest the election. Within a few months, however, they were once again lining up to kiss the ring. While it’s possible that Republicans would be more antagonistic to Trump after another loss, I think the opposite is more likely. The GOP is more thoroughly corrupted than four years ago, and I wouldn’t be surprised if more prominent Republicans get on board a second attempt to overturn election results.

But Dave, you might ask, what about Kamala? Again, I don’t know how the election will turn out, but I’d oppose Harris if she refused to concede a clear loss and contested the results based on half-baked conspiracy claims. I haven’t seen any evidence that Harris would do that. I’ve heard some speculation that whoever the loser is, they will claim the election is stolen, but Harris does not have a track record of doing so. Trump does.

For those who doubt that Donald Trump would engage in rhetoric that encourages political violence and risks ripping the United States apart, I have only one thing to say: He has already done it. It isn’t a question of whether he would do so again. The only question is exactly how.

We, as a nation, have to decide whether to accept election results or not. If we continue in the tradition of accepting the will of the people unless there is actual evidence of fraud that will stand up in court, then we will preserve the 200-year-old tradition of peaceful transfers of power. If we choose to accept only those election results that we like, that choice will take us down a long, dark, violent road. That road does not lead to making America great again, but rather, to making America a shithole country.