Tomorrow's the day. Wednesday is also the day. And so is Thursday. Though Election Day is technically Nov. 3, it's likely that we won't have full election results until days, or even weeks later, due to under-resourced boards of elections overloaded with returned absentee ballots. More importantly, it's likely that President Trump, who is more committed to winning than to protecting the right to vote, will wage an assault on election results. So what will happen after Election Day if there's a contested election?
First off: For many, it's less of a question of if Tuesday's election will be contested, but rather it will be. Democratic candidate Joe Biden reportedly has a team of lawyers in infamous Florida who are ready to work should there be any perceived shenanigans there. Trump, meanwhile, has promised that he'll win, and based on recent statements it's possible he will declare victory despite what actual results say — or possibly before there are any real results at all. He's also refused multiple times, in multiple venues and in various ways, to commit to a peaceful transfer of power should he lose the election.
So, for the first time in modern American politics, a peaceful transfer of power is not guaranteed, because the incumbent might refuse to leave office. Trump has refused to say that he'll accept the election results, and he's tried to cast the routine counting of absentee ballots as some kind of insidious voter fraud, a refrain that may be indicative of a long and difficult battle to convince Trump and his supporters of two things: First, that it's unlikely that we'll have a confirmed result Tuesday, and that's completely valid; and secondly, it's possible that a sound, accurate election count ends with Trump losing.
So, if after the American people have spoken, it's clear Trump has lost, what happens if he refuses to concede the election?
An independent coalition of ex-campaign and government officials called the Transition Integrity Project pondered these same questions. In June, the TIP convened teams to model what the post-election period might look like. The experts suggested that in the event of a result that does not please the president, he'll leverage any number of federal agencies to support his protesting of the election results. They posited that Trump might call on federal troops to monitor enraged cities, as he did earlier this year, or that he'll deputize the Department of Justice to assist with ballot-counting, which many would call an abuse of executive power. In each of the scenarios, one event remained constant: A Trump campaign or GOP loyalist will likely allege massive voter fraud, without evidence. Then, the Trump administration could use the DOJ to launch baseless investigation or to look for ways to shield Trump and affiliates from legal actions. It's even possible Trump may encourage his supporters to violence by riling them up over an imagined electoral conspiracy against him.
Legal battles are not the only concern. Whether or not Trump accepts the election results, the outcome will also impact how voters interact with each other. After all, election-related violence is very, very American. "In 1834, during clashes between Whigs and Democrats in Philadelphia, an entire city block was burned to the ground," Jelani Cobb wrote for The New Yorker. "In 1874, more than 5,000 men fought in the streets of New Orleans, in a battle between supporters of Louisiana’s Republican governor, William Kellogg, and of the White League, a group allied with the Democrats." We're already seeing the 2020 version of this history play out: As The New York Times wrote Monday, "These dyspeptic final days have been marked by threats of violent skirmishes and street demonstrations in places like [affluent Los Angeles neighborhood] Beverly Hills. Store owners are putting plywood on their windows, anticipating a return of this summer’s unrest."
The most recent example of a post-Election Day feud between political parties is, of course, the 2000 election. Issues with paper ballots in Florida led to unclear results, causing tens of thousands of ballots to be rejected. A court battle to recount ballots by hand ensued, given the margin between candidates Al Gore and George W. Bush was a few hundred votes.
But when Republican activists stormed the Miami-Dade County election office, where the recount was taking place, screaming "Stop the voter fraud!," the mere perception of impropriety incited local elections officials to change course mid-count. On Dec. 12, five Supreme Court justices ordered that the counting must stop, handing Florida's electoral votes — and the presidency — to Bush, even though Gore received 540,520 more votes overall.
Ian Haney López, the director of the Racial Politics Project at the University of California at Berkeley, tells Mic that the 2000 election doesn't have to be predictive of how the 2020 election will play out. Rather, Haney López says, we can use that event as an instruction manual about how to push back against efforts to undercut the vote.
"We can expect things to unfold that will be legal in the sense that they are undertaken by democratic institutions in an institutionally recognizable form ... But [they may] nevertheless constitute gross abuses of power."
"I think we're in much different terrain than 2000," Haney López says. "Trump has already clearly telegraphed the way he intends to claim victory, when actual victory is a very remote possibility." Despite the fact that the odds are stacked against Trump, Haney López says "we can also see that he is laying the groundwork for a seemingly democratic argument for why he should remain in power."
Why "seemingly democratic?" Because arguments against voter access played out in the courts are "abuses of power [wrapped] in a facade of legality," Haney López says. "We can expect things to unfold that will be legal in the sense that they are undertaken by democratic institutions in an institutionally recognizable form," he explains. For example, the Supreme Court ruling on a case is a by-the-book instance of our democracy as it's designed. "But [they may] nevertheless constitute gross abuses of power."
To wit: Haney López says the court system has already been weaponized against the vote. "We've seen an unprecedented number of emergency appeals to the Supreme Court," he tells Mic. "We've seen tremendous amount of litigation in state courts, including state supreme courts. We've seen numerous efforts to involve the federal courts and widely divergent opinions between ... appellate court, district court, supreme court." Fighting against the right to vote in the court system might seem legitimate, but it in reality can reek of foul play.
Trump has campaigned on a platform that mail-in ballots can't be trusted (they can be), that voter fraud is rampant (it's not), and that Joe Biden will win only if Democrats somehow cheat (not true). He's prioritized this baseless fearmongering while a pandemic has killed more than 231,000 people in the U.S under his watch. Now, he's trying to convince voters he deserves to be in office for four more years — and that he's earned it so much so that any results to the contrary are some sort of fraud.
"This is where we are," Cobb wrote. "At the perilous logical extension of all that Trump represents."