Even if Donald Trump is not on the ballot, American elections are divisive. The United States is the only legitimate presidential democracy where the person who gets the most votes does not necessarily take power. The two-month gap between voting and the certification of the election in Congress is longer than anywhere else. Complexity invites legal disputes, which add to the complexity. For all these reasons, American elections require patience and trust. Unfortunately, we rank last among the G7 for trust in our judiciary and last for trust that our elections are being conducted fairly.
And then there’s Trump. In a debate in Philadelphia this week, the former president appeared angry and indignant. He repeated his false and outrageous claim that the 2020 election was stolen, a claim that roughly 70% of Republicans say they support. He and his party are poised to wage another post-election battle. Each side argues that a victory for the other would threaten American democracy. For Trump personally, the stakes are even higher: he could go to prison if he loses. If the election isn’t close, America might be able to avoid another damaging transfer of power. Unfortunately for America’s increasingly beleaguered democracy, by our calculations, this presidential election is the closest since polling began.
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How confusing would it be? There are three possible outcomes. Let’s start with the extremely unlikely one: Kamala Harris and Trump get a tie in the Electoral College. If that happens, the next president would be chosen by the House of Representatives, with each state getting one vote. Even if Harris wins the popular vote on November 5, Trump would almost certainly become president. That would be fair in the sense that it follows the rules, but Democrats would be furious.
The second outcome is a Trump victory. Democrats could file lawsuits in close states where Harris lost. Some of these lawsuits could go to the Supreme Court, where three Trump-appointed justices would decide their merits. Three of the conservative justices were on George W. Bush’s legal team in Bush v. Gore in 2000. It would be hard to convince Harris supporters that a ruling in favor of the Trump campaign would be fair. After the Supreme Court’s decisions on abortion and presidential immunity, Democrats have come to see the justices as Republican politicians in robes. That said, most elected Democrats are likely to accept the ruling, albeit more reluctantly than in 2000.
But if enough Democrats are truly convinced that the court acted improperly, they could follow the precedent Republicans set in 2021 and try to block the certification of the results in Congress. Then, 139 House members and eight Senators (all Republicans) voted to reject the results. An amendment to the electoral count law passed two years ago would raise this threshold, requiring 20 Senators and 87 House members to object. In the unlikely scenario that these primary votes pass, Democrats would likely lose the ensuing general votes in both chambers. All of this could happen, but if Trump wins the election, the most likely outcome is that Harris concedes defeat, discouraging Democrats from challenging the results.
If Harris wins, Trump will not be so forgiving. In this third scenario, the complexities of the US voting system collide with the MAGA conspiracy machine. The Republican National Committee has pre-filed over 100 election lawsuits in states to build up paper trail in preparation for contesting the election results. As a legal strategy, it will probably fail again, as it did in 2020. Fortunately, the governors of key battleground states are not election deniers. Lawyers who might be tempted to take conspiracy theories to court should be deterred by the example of Rudy Giuliani, Trump’s litigious booster. If some cases make it to the Supreme Court, John Roberts and the three Trump-appointed justices may be tempted to show their independence by rejecting weak challenges. Democrats may come to see the Supreme Court as a guarantor of democracy.
But the new “Stop the Steal” movement may succeed politically but fail legally. In the last election, a surprising number of House Republicans voted to reject the results. Since then, the party has only grown more beholden to Trump. Its members either genuinely believe they can only win if the other side steals the election, or publicly go along with that idea. Rejecters Liz Cheney, Mitch McConnell, Mike Pence, and Mitt Romney have been sidelined. Even if congressional Republicans actually had the votes to overturn the results, they would probably lose. But the circulation of conspiracy theories could further solidify the myth of a stolen election.
One possible outcome of this myth is political violence. Security at the Capitol will be tight in January 2025 to ensure that nothing like the January 6th riot happens again. But local police, the Secret Service, and the FBI must prepare for protesters storming state capitols and the risk of assassinating lawmakers. About 20% of American adults say they accept the possibility of using violence for political ends. In a large, well-armed country, the threat doesn’t have to be so strongly motivated for it to be frightening.
Chief of the fraudsters
Another consequence of the allegations of election fraud is the continued deterioration of American democracy. To be clear, America will experience a peaceful transition of power in January 2025. Neither side can defy the rules and install a defeated president in office. But that is a minimum definition of a successful democracy. In a broader sense, elections are meant to generate public consent to govern, even if the president is one they did not vote for. To do that, voters need to believe that the electoral process is fair and credible, so that their side has a good chance of winning four years from now. Every time people feel that an election is illegitimate, it brings us closer to the day when one side will not accept the results and will defeat the system.
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