Edward Foley has a nightmare. It’s a poli-sci horror tale. A professor of constitutional law and elections expert at The Ohio State University’s Moritz College of Law, Foley foresees a scenario for the coming election that could tear apart American democracy.
Peer ahead to election night and imagine a close contest between Donald Trump and the Democratic presidential nominee, so close that the results in Pennsylvania will decide the winner. As the evening proceeds, Trump is narrowly ahead in the Keystone State, with the news networks tallying the incoming votes. When 100 percent of the precincts report, Trump is up by 20,000 votes, and he tweets: “The race is over. Another four years to keep Making America Great Again.” But hold on. The next day—and in the days ahead—as the counting of absentee and provisional votes occurs in routine fashion, Trump’s lead declines. The election is being stolen, Trump proclaims. His devotees take to the streets. The final result comes in: The Democrat triumphs by several thousand votes. “THIS THEFT WILL NOT STAND,” Trump tweets, and he declares political war.
In a 55-page law review article published last year, Foley depicts in granular detail what could happen at this point, if Trump and the Republicans opt to challenge the Pennsylvania results. Here’s a spoiler: It’s a damn mess with no clear outcome. And this one case study of how the 2020 presidential race could become a disaster has caught the attention of academics, former government officials, and policy advocates who have been banding together in different forms to try to address the many ways the election might be disrupted or contested.
One such group is the ominously named National Task Force on Election Crises, a bipartisan collection of experts who are plotting out potential calamities and exploring possible remedies before anything hits the fan. This outfit is not predicting chaos, but it has considered dozens of scenarios beyond the Pennsylvania standoff in which the election could go awry and yield chaos and, perhaps, no easy resolution. It’s hair-raising stuff, and the fact that a number of the nation’s leading experts on elections are alarmed (to varying degrees) about what might transpire in November is in itself frightening.
There are laws and constitutional provisions that cover the management of a presidential election, but Foley, in this one example (which could apply to states other than Pennsylvania), shows that these measures are profoundly inadequate for resolving the sort of dispute that he envisions. In his thought experiment, the Democratic governor of Pennsylvania determines the Democratic candidate has won the state and certifies the Democratic slate of electors, sending that notification to Congress. But the GOP-controlled state legislature has other plans: It insists Trump is the true victor, and it forwards the Trump slate of electors to Congress. The House and Senate in early January must decide which slate to accept. (It is the new Congress elected during the November balloting that will be in charge, though Vice President Mike Pence would still at this stage be president of the Senate.) If the party makeup of the two chambers has not changed, the Senate, ruled by Republicans, could well accept the Trump slate, and the House, in Democratic hands, would presumably approve the Democratic candidate’s slate. In the meantime, there could be both state and federal court cases related to the competing slates, with the matter perhaps landing before the Supreme Court.
Foley teases all this out and describes the various court challenges and legal arguments each side could deploy. He points out that in 2016, Trump’s election-night lead in Pennsylvania of 67,951 ultimately dropped to 44,292. So it is not hard to envision that this time an apparent election night win could turn into a loss. In fact, this happened in several congressional races in 2018. Foley makes it plain that the path forward in such a circumstance is not self-evident. The Electoral Count Act of 1887, which governs the process for tallying votes within the Electoral College, is imprecise. Under this law, Republicans could even argue that the very existence of competing slates ought to invalidate Pennsylvania’s votes, if the Democratic candidate needs that state to win.
“It would not take an extraordinary calamity, like a foreign cyberattack, for there to be conditions enabling partisans to dispute the result,” Foley writes. “Instead, a dispute engulfing Congress could arise from a situation as routine as [a vote count shift]. Given this possibility, it is truly irresponsible that Congress has not attempted to eliminate—in advance of the 2020 election—the ambiguities that plague the Electoral Count Act.” In other words, the nation could be screwed.
Foley is hardly alone in forecasting a possible fiasco. In October 2018, shortly before the congressional midterm elections, Norman Ornstein, an expert on government and a resident scholar at the American Enterprise Institute, wrote an op-ed for the Washington Post that raised a simple question: “What do we do if a national election is disrupted?” Weeks earlier, Hurricane Michael had slammed into the Florida Panhandle, and Ornstein wondered what might happen should a natural disaster strike during an election. If a storm—or an earthquake or a volcano eruption or wildfires—prevented voting, what could be done? States can reschedule state elections, but federal contests cannot be postponed. “We have no Plan B to take the impact into account if a national election is disrupted,” Ornstein bemoaned. “There are no do-overs and no mechanism in place to ameliorate the effect.” And Ornstein had in mind much more than Mother Nature: “What if, for example, China or Russia knocks out the electrical grid in one region of the country on a presidential Election Day? A hundred or more electoral votes would be disrupted, leaving the election outcome unsettled (along with many House, Senate and other elections).”
Neither the US Constitution or any law offers a plan for a makeup election. And what would be fair? Rescheduling voting in those areas that went dark, though voters there would now know the results of the votes cast elsewhere? Or a new vote across the nation? And if the election was thrown to the House of Representatives to settle—without a full House, due to the disrupted elections—would the president picked by this body be considered legitimate? Ornstein noted there was “no easy answer” of how to address a major disruption. What was needed, he contended, was to move quickly on possible reforms “before an event happens.”
Around this time, a nonprofit group based in Washington, DC, called Protect Democracy was engaging in likeminded worrying. The organization was founded in early 2017 by former executive branch officials, many hailing from the Obama administration, with the aim, according to its website, “to prevent American Democracy from declining into a more authoritarian form of government.” The group has a progressive bent, but its advisers include conservative commentators Linda Chavez and Mona Charen and Matthew Dowd, the chief strategist for the 2004 Bush-Cheney campaign. In the fall of 2018, its officials posed a question: What would occur if there were an aggressive hack of a voting system that prompted serious uncertainty about the results? It could be an attack that causes some units to malfunction. Or a hack of registered voter databases that leads to significant voting problems on Election Day. What would come next? “It caused us to think that we’re not ready for that,” says Ian Bassin, a co-founder of Protect Democracy and a former associate counsel in the Obama White House. “Can we get together people who would be called on in an election crisis and try to develop a consensus?”
Protect Democracy assembled a crew of election and legal experts that now numbers several dozen and dubbed it the National Task Force on Election Crises. The task force includes Foley and Ornstein, as well as Michael Chertoff, the former secretary of homeland security who served in the Bush-Cheney administration, Lanhee Chen, the policy director for the 2012 Romney-Ryan campaign, Paul Rosenzweig, a deputy assistant secretary at the Department of Homeland Security during the Bush-Cheney years, Michael Steele, a former GOP chair, María Teresa Kumar, president and CEO of the Voto Latino Foundation, and Sherrilyn Ifill, president of the NAACP Legal Defense Fund. The task force recently added Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota. It held its first meeting in June 2019 at Georgetown University, with an ambitious four-point agenda: identify crises that could happen; derive best-case scenarios for addressing them; consider what could be done in advance to give those remedies a shot of succeeding; and weigh actions that could lessen the chances of a crisis.
As part of this process, Protect Democracy last year enlisted students at a Harvard law school clinic it runs to envision for the task force possible crises that could threaten the 2020 election. They cooked up 65 potential disasters—a list that was winnowed to the 15 crises deemed the most likely and most disconcerting. And that lineup was trimmed again. (In this culling process, the possibility of a pandemic was removed as a contender. It was not considered one of the more feasible disturbances.) These possible debacles were termed “Magellan scenarios” because they each involved uncharted waters. And the assortment has included the Foley scenario, natural disasters, a foreign attack on the power grid, a hack on voting systems, violence or the threat of violence interfering with people’s ability to vote, a state or federal official misusing emergency powers to mess with the election, the deployment of law enforcement or immigration enforcement at polling locations to intimidate voters, the Justice Department mounting politically motivated investigations or prosecutions of a candidate, and the refusal of a candidate to concede. The National Task Force on Election Crises began working through these scenarios, looking to see if it could reach agreement on the best ways to avoid these calamities and on how to respond should the worse come to pass.
At first, the task force’s work was behind the scenes. There was no intent to publicize its existence or deliberations before the election. Its organizers were proceeding on a simple assumption: Should a crisis hit, the country might better be able to handle it if a group of experts of different political pedigrees could address the controversy at hand with a single voice. No doubt, in such a time, there would be a cacophony of outrage and opinions spreading across the media and through the national political debate. At what might be a perilous moment, the group, according to one participant, could be “the political anchor of conventional wisdom.” The theory was that the existence of a broad consensus on a key point—say, this group had already determined that an important part of the Electoral Count Act of 1887 should be read a certain way—could ease the way to a resolution and make it tougher for a bad-faith political actor to exploit the situation. For this plan to work, there was no need to reveal the group’s existence before the election went south.
Then the coronavirus struck. “We went from a world with an election crisis possible to one where there is an election crisis,” Bassin recalls.
The task force revealed itself in March. It started a Twitter account and put up a website, noting, “Disruptions to elections can come from natural disasters or human-made disasters such as cyber attacks or improper interference by elected officials. In any event, it’s critical to know the proper steps forward in dealing with a crisis to ensure a free and fair election.” The group began releasing materials on how states should handle elections in the time of a pandemic. It published a coronavirus guide for election officials, recommending they immediately start preparing for wide-scale voting by mail and make plans to provide safe voting (including curbside voting and early voting) and to communicate to voters about changes in voting procedures. It sent a letter to governors, secretaries of state, and state election directors urging them to “implement the Task Force’s recommendations, accelerate planning for the general election, and request additional funding from the federal government if necessary to fund the new initiatives your state will need to undertake for the November election.” The task force released a statement noting that the president cannot cancel a national election or change its date and that “under no circumstance can any president’s term be extended past noon on January 20th without amending the Constitution.”
Task force members, through several working groups, have continued to ponder what could go wrong on November 3, 2020, and what would be the right responses. “As we considered the scenarios, many of us had an instinct to deny the hypotheticals,” Bassin recalls. “We didn’t want to contemplate that these nightmares could happen. The lawyers in the group sought legal answers only to find that the law sometimes does not provide clear answers. In those cases, are there principles that can guide us toward a consensus? If so, forcing people to consider in advance what those are and what should happen seemed a better thing to do than to wait until a crisis strikes.”
In this realm of what-ifs, there is one huge X factor: Donald Trump. How could this group—or anyone—game out what he could do to destabilize the election? He has already proclaimed that the Democrats intend to “steal” the election from him. He has repeatedly decried an increase in mail-in voting, signaling he might not accept the results of such balloting. Last week, Trump, referring to expanded mail-in voting, proclaimed, “This will be, in my opinion, the most corrupt election in the history of our country. And we cannot let this happen.” Might he call on supporters to show up at voting locations as protesters or self-appointed poll observers? Might they do so on their own? Might some come armed, as did Trump devotees who descended on state Capitols to protest the coronavirus lockdown orders? What would happen if violence breaks out at polling stations on Election Day and voters cannot exercise their franchise?
“A few instances of violence erupt, and you can imagine Trump saying, ‘Send in the troops,'” Ornstein says in an interview. He adds that he loses sleep over “a million nightmare scenarios.” Yet Ornstein notes that there are some obvious steps to take in advance. One is that the media, especially the news networks and the Associated Press, must inform the public ahead of voting day that the results on election night might not be the final count—and that is not immediate cause for suspicion.
There are plenty of early warning signs to prompt concern, Ornstein says. The Wisconsin and Georgia primaries this spring were marred by voting problems. Georgia polling stations could not handle the turn-out—which was far less than what is expected for November. Kentucky had similar problems. New York State has been unable to process its large number of absentee ballot requests. “If there is an uptick of COVID in the fall, counties and states may limit the number of polling places, especially in cities, which tend to be Democratic areas,” Ornstein remarks. “We could end up with all sorts of question marks.” He has called for making absentee ballots available at polling places on Election Day, in case of long lines and other disorder. Another important front, he points out, is enlisting the major social media outlets to do what they can to prevent the spread of election-related disinformation and any messages that could inspire violence or sabotage at polling paces. Ornstein also hopes the task force and others can pressure Congress to increase election funding for states and localities, especially those that will be working with new systems this fall. “Some states are used to votes by mail to come in at 5 to 6 percent of the full count,” he says. “What happens when you go from 5-to-6 percent to 60 percent?”
Paul Rosenzweig, a Republican (until 2017) who worked on voting security at the Department of Homeland Security and who now is a senior fellow at the R Street Institute, points out that Georgia, with its recent election, moved from 40,000 mail-in voters to 1.25 million. “Even the most competent and the most well-meaning government cannot choke down a change like that without disruption,” he says. He acknowledges that malicious actors do pose a threat to the 2020 election. Hackers could try to mess with voter databases or results. The Russians and Chinese or others could aim to use social media to increase political divisions. But he is most worried about the impact of changes related to the coronavirus pandemic. He refers to a colleague who is researching the affect of cleaning voting machines: “What if we use cleaning fluid on every machine after every voter? They are not designed to be cleaned 500 times a day.”
The natural uncertainty than comes with new voting procedures, Rosenzweig observes, can be exploited and exacerbated by anyone with a desire to undermine the legitimacy of the election: “We could see disinformation campaigns from the Russians, the Chinese, the North Koreans, the Iranians, or Americans.” On a scale of 1 to 10, he says, his level of worry is now a 4 or 5, mainly because he believes there is still time to deal with potential pitfalls and problems “In August, I’ll either be at a 3 or a 7,” he says. In the months ahead, he hopes the task force can derive clear answers about the legal issues that could arise and provide assistance to local election officials. He says the group plans on war-gaming various Magellan scenarios: “Let’s say there is a hurricane in Florida, or a BLM protest in Oklahoma or a Boogaloo protest in Oakland interferes with voting, or a cyber hack takes down voting rolls in Durham, North Carolina. What do you do? If you game-play it out, you’re in a better position.” Ideally, he notes, the federal government would be running table-top exercises like these. As far as Rosenzweig knows, it isn’t. (Though Trump’s top intelligence officials have publicly stated that Russia is already intervening in the 2020 campaign, Trump has not taken any public steps to thwart the Kremlin’s covert interference.)
The ultimate goal, Rosenzweig says, is to position the task force so it can be provide a voice in any chaos that ensues: “With the right preparation, it can serve as a counterweight to claims the election was not free and fair, assuming we agree it was legitimate. One of the things I am struggling with is coming up with a feasible definition of what I consider a legitimate concern or not a legitimate concern.”
This spring, a separate group of academics—also including Foley and Ornstein—tried to get a jump on possible election chaos and contemplate how best to avoid or manage a crisis. This band was organized by Rick Hasen, a professor at UC Irvine School of Law, who in February published a book titled Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy. In this work, Hasen tracked how the confidence of Americans in the fairness of elections has been decreasing over the past 10 years, and he proposed several medium- and long-term reforms to address that. But, he realized, there was an immediate challenge posed by the current election. He rounded up two dozen experts on elections and in late February held a conference called “Can American Democracy Survive the 2020 Elections?”—just as the coronavirus pandemic was striking.
In a report issued in April, Hasen’s ad hoc committee presented 14 recommendations, some of which overlap with the ongoing work of the task force. It calls for states to improve their procedures for handling absentee and provisional ballots and to develop robust plans for voting during a coronavirus spike. It urges legal experts to resolve the ambiguities of the Electoral Count Act before any disputes occur. Media outlets, it notes, should prepare Americans to be patient for final results. Paper ballots ought to be maximized. “Social media companies have a unique responsibility to prevent the use of their platforms for efforts that would suppress votes through the spread of misinformation about voting,” the report says. (Hasen fears a last-minute barrage of disinformation falsely claiming polling places are being moved because of COVID-19.) This is a list of well-founded should-do’s that included increasing federal assistance for the coming election from $400 million to $2 billion.
One question is who is listening to the concerned experts of the task force and Hasen’s committee. Republicans in Congress so far do not seem eager to spend more money on election management and security. Perhaps the media and social media companies can be nudged in the right directions. But given Trump’s past and present comments—when he thought he might lose the 2016 election, he claimed it was being “rigged”—he obviously has no interest in promoting or following any of these recommendations. “Trump is a symptom more than a cause of our election problems,” Hasen says. “But he has exacerbated things and brought us to a dangerous point.”
Bassin notes that in the weeks and months ahead, the National Election Crisis Task Force will press to build consensus among its experts regarding what could—or should—be done in the assorted break-glass situations. But as this prep work is done, the experts who fear electoral hell breaking loose in November share one hope: The election is not close. A landslide could surmount particular problems that occur on Election Day. If votes are not cast or counted in a particular spot, but the amount of such votes is not decisive, then it will be harder for anyone to claim (justifiably) the election results are not sound. Ornstein frequently talks to election officials, and they share the same mantra; “Dear, Lord, please let it be a landslide.” He explains, “They don’t want to be in a situations where it’s close.” The narrower the race, the greater the likelihood a disruption could affect (or be perceived as affecting) the outcome. “The election has to go smoothly enough,” Hasen says. “If it’s not particularly close, we will still have problems, but I hope these are problems that don’t lead to questions of legitimacy. If it is very close, we’re in big trouble.”
The policy wonks and advocates anxious about the tumult that could erupt on Election Day are hoping discussions and debates before the fact can help the country navigate a crisis. “Every election has errors, but most are not of a sufficient scale to call into question the results,” Rosenzweig says. “In this environment, irregularities become magnified and people are increasingly skeptical. So the question is whether we can be effective in helping.” Speaking for himself and not the task force, Rosenzweig notes there are no guarantees that a bipartisan and nonpartisan collection of knowledgable and somber-minded experts will be able to save the nation from political turmoil. “We’re assuming the national political discussion will be highly dysfunctional, and we are assuming this group alone won’t be able to break through the noise,” he comments. “Others in the world of media and politics will have to be brought in. And even then maybe there will be too much noise. How much can we break through and move the needle? If there is a broken election and a broken populace, there is no magical mechanism.”
