29 March 2020. The Atlantic: “How Donald Trump Could Steal the Election” By Jeffrey Davis.
Even under a normal president, the coronavirus pandemic would present real challenges to the 2020 American election. Everything about in-person voting could be dangerous. Waiting in line, touching a voting machine, and working in polling stations all run afoul of social-distancing mandates. Already, Maryland, Kentucky, Georgia, and Louisiana have postponed their presidential primaries, while Wyoming, New York, and Ohio have altered their voting procedures. Of course, other democracies face similar problems; the United Kingdom has postponed local elections for one year.
But under President Donald Trump, the possibilities for how the coronavirus could wreak havoc on the election are all the more concerning. This is not a president who cares about the sanctity of the electoral process. After all, he has never seemed particularly concerned about Russia’s efforts to manipulate the 2016 outcome (presumably because they were on his behalf), and he was impeached for demanding Ukrainian help in his reelection efforts.
Moreover, this is a president who has repeatedly joked about staying in office past the end of his second term and has frequently embraced authoritarian leaders and policies. Making matters even worse, the Republican Party more broadly has displayed a willingness to bend the rules for its own political gain, frequently trying to suppress the vote (especially minority votes), purging voter rolls, and implementing aggressive racially based gerrymanders. Americans simply cannot trust that his administration will preserve the integrity of the 2020 election.
This puts America in a very dangerous position. Legal protections for the election do exist and are strong. The Constitution and federal law require the election of a president this November and state that the president’s term ends the following January. The Supreme Court has repeatedly held that once states grant their residents the right to vote, doing so becomes a fundamental right. Forty-nine states recognize the right to vote in their state constitutions and 26 guarantee that elections must be free and open. Any attempt by the president or state legislatures to deprive people of the right to vote, in order to ensure Trump’s reelection, would blatantly violate these rights. But a lot could still go wrong, especially at the state level.
The danger begins with the fact that, regardless of what people believe, the Constitution does not give Americans the right to vote for their president. Rather, the Constitution says that a college of electors votes for the president, and Article II of the Constitution gives states nearly unlimited power to decide how these electors are chosen. In the early years of the American republic, many state legislatures decided which presidential candidate the state’s electors would support. South Carolina used this method until 1868. Today, all 50 states grant their residents the right to vote for president, and the people’s vote determines which electors from each state will select the next president. However, any state could change its law and instead allow its legislature to decide which electors will choose the next president.
In other words, states have a lot of power in deciding how the election will run. Today, Republicans control 30 state legislatures and Democrats only 19, with one state divided. (Nebraska technically has nonpartisan legislators, but it is a reliably red state, so I include it with the Republican states.) These red-state legislatures control 305 electoral votes, and only 270 are needed to secure the presidency. Presumably, most red states, if not all, would appoint electors who would elect Trump for another four years. Of those 30 states, 22 also have Republican governors, which means in those states there would be no Democratic governor to veto Republican legislation taking away the people’s opportunity to vote for president. Those 22 states represent 219 electoral-college votes—perilously close to the 270 required for Trump to be reelected.
Could states really deprive Americans of the right to vote for their president? In Bush v. Gore, a conservative majority on the Supreme Court held that the state “can take back the power to appoint electors” at any time. And the Court is even more conservative today than it was in 2000, as Justice Brett Kavanaugh has replaced Justice Anthony Kennedy.
The more complicated question is not whether states can do this, but whether they would. Republican lawmakers have been steadfastly loyal to Trump throughout his tumultuous tenure. If Trump were to ask states to appoint electors instead of having an election, they certainly might follow his request, especially those states where the president enjoys wide popularity. In 24 of the 30 states with Republican legislatures, a majority of people approve of the president’s job performance, according to last month’s Gallup survey. Those states control 224 electoral votes—enough to throw the election’s results into doubt. States could also wreak havoc on the election by not taking steps now to prepare for voting during a pandemic. If only a few states allowed their legislatures to appoint electors, or postponed electoral selection indefinitely, the November election could result in no candidate receiving a majority of electoral-college votes.
This is a real concern. If no candidate wins a majority of electors, the Twelfth Amendment empowers the House of Representatives to decide who will be president. Although the House is controlled by Democrats, predicting the outcome is not that simple. The Amendment requires the House to choose the president by voting as states, not as individual members. So, instead of 435 individual votes, there would be 50 state votes.
The Amendment does not say how the representatives for each state should decide their state’s vote. If the current House were tasked with selecting the next president, and states with more Republicans than Democrats in their delegation voted for Trump, he would win 25 votes. Twenty-three states have more Democratic House members than Republican, so the Democratic candidate would likely receive 23 votes. Florida and Pennsylvania are evenly split between Democrats and Republicans, leaving their presidential votes up in the air. Whether the District of Columbia would be allowed to vote at all in this circumstance is not entirely certain. The text of the Twelfth Amendment suggests that only states can vote, but the Twenty-Third Amendment gave D.C. electors who vote for president and “perform such duties” as required by the Twelfth.
If Trump tries to use the coronavirus to manipulate the election, and if states help him do so, disputes may arise about whether a state’s presidential electors are valid. This kind of dispute happened after the 1876 presidential election. Democrat Samuel Tilden won the popular vote by 3 percent over his Republican opponent Rutherford B. Hayes. As a result, Tilden took 184 electoral votes to Hayes’s 165. However, the parties in four states could not agree on which candidate won the 20 remaining electoral votes. Days before inauguration, in a sordid backroom deal, Democrats agreed to allow all 20 of these electors to cast votes for Hayes in exchange for the assurance that the Republican administration would withdraw federal troops from southern states.
After this debacle, Congress passed laws to deal with disputed slates of electors. Then in 1933, the Twentieth Amendment gave Congress more power to establish rules for counting electoral votes and resolving disputes. The resulting law still gave states almost complete power to determine the outcome of a presidential election, however. It requires Congress to accept electors if their state has followed the proper procedures to resolve any disputes and certified them six days before a specified date in December—the so-called safe-harbor date.
During the controversy over Florida’s presidential vote in 2000, the Supreme Court’s conservative justices argued that because Florida could not manually recount its ballots before that election’s safe-harbor date, December 12, 2000, trying to do so would risk disenfranchising all Florida voters. Their ruling in Bush v. Gore decided the election for the Republican candidate, George W. Bush. Dissenting justices pointed out that Congress would be free to accept Florida’s electors, even if the state certified them after that date. After all, they noted, in 1960, Hawaii selected two different slates of electors and Congress chose to count a slate that was appointed well after the safe-harbor date.
Under these statutes, if some red states decide to appoint electors (perhaps at Trump’s prompting) in light of the coronavirus, and voters challenge the validity of those electors, state decisions on that dispute would probably be conclusive as long as the state followed its legally prescribed procedures. And Republicans control enough states to exceed or come very close to the 270 electoral votes required to elect a president.
Despite these weaknesses, the Supreme Court’s decisions to protect the equality of votes provide some safeguards. The Court has ruled that once state legislatures give people the right to vote in an election, the state cannot interfere with the exercise of that right or dilute the weight of peoples’ votes. In 1964, the Supreme Court considered whether Alabama’s refusal to reapportion its legislative districts to reflect major changes in its population violated voters’ rights. The most-populous districts had up to 41 times the eligible voters of the least populous.
The Supreme Court held that electing our public officials “in a free and unimpaired fashion is a bedrock of our political system,” and found that Alabama had unconstitutionally diluted votes in the most populous districts. Two of the smaller districts had populations of between 13,000 and 15,000 people and sent two senators each to the Alabama Senate, while the two largest districts had 300,000 and 600,000 thousand people and sent only three senators each. Thus the votes of people in the least populous (and whiter) districts were many times more powerful than those of people living in denser districts. With this ruling, voters in any state that were to deprive them of the right to vote for president could launch a powerful legal challenge claiming that their right to equal voting power had been violated. They could argue that their votes had been unconstitutionally diluted, like those of the voters in Alabama, because they would be able to express their preference for president only vicariously through voting for their state representatives. The votes of those in nearby states voting directly for their state’s presidential electors would be exponentially more powerful.
America must protect the election from interference—not just Russian, this time, but also domestic. Already, proposals exist to do so. On March 16, Senators Amy Klobuchar, Democrat of Minnesota, and Ron Wyden, Democrat of Oregon, introduced the Natural Disaster and Emergency Ballot Act of 2020 to ensure the integrity of this year’s election. The proposed law would encourage states to make early voting more widely available, make it much easier to vote by mail, and require states to create contingency systems for voting and counting ballots during a period of emergency. As these senators pointed out, the country is meant to elect 35 Senators, 11 governors, and 435 House members in addition to the president this November. Beyond implementing the reforms in this legislation, states should make mail-in and absentee ballots universally available.
Americans have successfully conducted elections in crises. Voters went to the polls during the Civil War, World War II, and Vietnam. New Yorkers voted in municipal elections just two weeks after the 9/11 terrorist attacks. In this country, the right to vote is sacred. African Americans have risked and even sacrificed their lives to vote, and women struggled for more than a century to claim their right to do so. To honor that legacy, we must confront this challenge and provide safe and easy ways for Americans to vote this November.
Jeffrey Davis, a Professor of political science at the University of Maryland, Baltimore County
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.