Democracy & Government

The Election-Go-Round: Democracy in Peril

The Election-Go-Round: Democracy in Peril

A voter returns his vote-by-mail ballot in the 2006 General elections in Lane County, Oregon. (CC 2.0, Flickr)

Trump knows he will lose the election. He is decisively behind in the polls in swing states. Many in his base are hurting or disillusioned. COVID-19 and the sunken economy have finished him off. So, he has torn a page from the Roy Cohn playbook, “If you are losing the game change the rules.”

Trump has no legal right to delay the federal elections without the consent of Congress, but his lack of legal authority has rarely stopped him. We know he will do almost anything to work the system and stay in power, and he thinks he can rely on the conservative majority in the Supreme Court to back him up.

As by now, almost everyone knows, he tweeted last week:

With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???

According to studies, all forms of voting fraud are extremely rare in the United States, and Attorney General Bill Barr testified before Congress that he had no facts indicating the possibility of voter fraud using the mail or otherwise. Besides, mail-in votes leave a paper trail making them less vulnerable to fraud.

Later, Trump dialed it back for the state of Florida where he expects many Republicans, who really live out-of-state, and claim Florida residence to avoid state income tax in places like New York and Illinois. There, he said it is Okay to vote by mail.

On August 4, he tweeted:

Whether you call it Vote by Mail or Absentee Voting, in Florida the election system is Safe and Secure, Tried and True. Florida’s Voting system has been cleaned up (we defeated Democrats attempts at change), so in Florida I encourage all to request a Ballot & Vote by Mail! #MAGA

Forget the facts, can Trump succeed in beating the system?

On July 31, Constitutional scholar Laurence H. Tribe of the Harvard Law School mischievously tweeted:

Under the 20th Amendment, the president’s term ends Jan 20 at noon. If a president & vice president haven’t been chosen by then, the Speaker of the House becomes president. Treating the Nov. 3 election as meaningless would make @SpeakerPelosi president.

Not so fast, Larry. If the federal election is somehow postponed because Trump declares a national emergency, and manages to postpone the federal elections until he says he can rest assured that we have a safe and effective  vaccine, and voters feel comfortable about going to the polls, there will be no congressional election either, and there will be no Speaker of the House on January 20 to succeed Trump. Nancy Pelosi will not become president, but under the 20th Amendment, Charles Grassley, the Republican president pro tem of the Senate will take the office. Democrats will have to go to court to oppose this action, and the issue could be tied up in litigation for months. Or Trump could defund the Post Office, delaying the delivery of mail-in ballots, thereby suppressing putative Biden votes, and delaying the outcome until after the “safe harbor” date of December 8 provided in 3 U.S.C § 5, by which time “final determination of any controversy…shall be conclusive.”

It is also possible that, because of delays in the mail and questions surrounding allegedly fraudulent ballots, various swing states with Republican legislatures will declare that no clear choice has been made on November 3, and, under 3 U.S.C. §2, they may appoint electors. If that happens, Trump has once again worked the system to his advantage.

To fix the problem, Tribe argues, every state legislature should make clear NOW that its electors will be those chosen by the November 3 popular vote in that state as long as a winner can be decided in time for Congress’ January 6 joint session, even if not by the safe harbor date of December 8. Of course, this is unlikely to happen. It makes too much sense.

Interestingly, if there is no clear outcome in the electoral college on January 6, then the House of Representatives elects the president (each state delegation having one vote). There is a common misconception that Biden will win an election in the House where there is a Democratic majority, but the Constitution provides that each state has one vote when they elect the president. At the moment, the GOP has 25 states, and the Democrats 24, with Pennsylvania a tie, even though California has 53 members and Montana one. If the election is thrown into the House, unless there is a dramatic shift in the partisan affiliation of the state delegations on January 1, Trump wins.

In a recent op-ed in the Washington Post, Alexander Vindman, a key figure in the Trump impeachment, sees America as reminiscent of an authoritarian regime. He writes:

“At no point in my career or life have I felt our nation’s values under greater threat and in more peril than at this moment.”

It’s time to wake up to what is going on lest we slide into authoritarian rule, as was the case in Poland and Hungary. They too had elections.

Are we becoming like Russia and Turkey, which hold elections, but still have entrenched authoritarian regimes? Are we no longer a nation that is of the people, by the people and for the people? The result of Trump’s musings about ballot fraud and delaying the election is a nightmare, and bodes a horrific defeat for democracy. The founders brilliantly created a Constitution with checks and balances and a division of power for the very reason that they didn’t want a king or a man on horseback. But they never visualized a rogue president like Donald Trump who would press the limits of his unchecked power and use it to ride roughshod over the will of the people.

James D. Zirin

James D. Zirin, a lawyer, is the author of the recently published book, “Plaintiff in Chief, -A Portrait of Donald Trump in 3500 Lawsuits.”