Contemplating the Ifs
by David Bernell and Ambassador Thomas Graham
The presidential election on November 5, 2024 is going to be close. The only decent prediction any expert or casual observer can make at this point is to say that the race is a tossup. This circumstance seems not only surprising, but unfathomable. Kamala Harris is a conventional politician well within the mainstream of American politics and government. She has very good experience in a variety of elected offices, and a record of accomplishment in carrying out her duties in office. Moreover, her policy positions put her largely in the left-center of American politics, nowhere near the extreme.
Donald Trump, by contrast, is a convicted felon, has been found liable for rape, is a pathological liar, has spoken repeatedly of his admiration and affinity for dictators, failed spectacularly as a leader when the pandemic struck, sought to have the U.S. military fire upon non-violent protesters in the wake of the death of George Floyd, and most worrisome for our democracy, is an anti-democratic insurrectionist who tried to overturn the 2020 election with violence when he lost. And to add to his list of faults and failures, his own former Chief of Staff John Kelly spoke out publicly only two weeks before the 2024 election, issuing a warning to voters by saying that Trump, “certainly falls into the general definition of a fascist, for sure.” This view that Trump is a threat to the Constitutional order in the United States is consistent with Trump’s own remark that he would like to be “a dictator on day one” himself.
In spite of these significant differences, which would seem to make Harris the obvious choice, the race remains extremely tight. It seems that the United States has failed in numerous ways to prevent such an obviously unfit person from getting this close to the White House…again. The Republican party has abdicated its role of partisan gatekeeping, allowing a candidate like Trump to capture their nomination. The cowardice and fear that kept many Republican officeholders to from saying publicly for years what they really believed about Donald Trump has allowed his appeal and stature to grow. And in 2021, the failure of Republicans in the U.S. Senate to vote to convict Trump after his second impeachment, and instead assume they could leave the job to others to keep Trump out of presidential politics, allowed him to stage his comeback. The weakness and fear of the GOP also precluded any cross-party pro-democratic coalition to form. Such a coalition would have demonstrated to Trump-leaning politicians and voters across the country that it would be permissible for Republicans to oppose Trump in both the primaries and the general election this year. In a similar fashion, civil society in the United States has never seemed to muster a robust response to Trump. As a recent op-ed argued in the New York Times, “When the constitutional order is under threat, influential groups and societal leaders — chief executives, religious leaders, labor leaders and prominent retired public officials — must speak out.” Instead, many major business, religious and labor organizations have largely avoided the political arena.
This leaves the election at this time with both campaigns trying to get their evenly-numbered voters to the polls. At the same time, in a series of worrisome but expected developments, the Trump campaign and many of its supporters around the country, including election officials responsible for certifying election results in swing states and numerous counties, are looking to discourage and suppress voting among Democratic constituencies, disqualify Democratic votes once they have been cast, create uncertainty and chaos around the vote count (which is likely to extend for at least a few days beyond November 5, but could be even more seriously delayed by their actions), and possibly reverse results that have Kamala Harris winning in several key jurisdictions. The Trump campaign has already filed dozens of lawsuits challenging election procedures and rules to secure advantages in the vote counting when it happens.
One major effort prepared for by the Trump campaign involves the many dedicated followers of Trump who have been elected or appointed to serve on election commissions around the country. These commission members are expected – or may be openly directed by Trump and the campaign in the days after the election – to take steps to challenge, delay and confuse election results to the maximum extent possible and refuse to carry out their duties that would prevent the vote for president from being counted or certified in their state or county.
In the midst of these concerns about the election, and the swirl of articles and videos and social media posts about what might happen on and after November 5, there seem to be at this time a few likely scenarios.
In the first, which Democrats are hoping for, but which seems least likely, Harris not only wins the popular and electoral votes, but does so by a big enough margin to preclude a serious post-election challenge by Trump. This would take enough energy out of efforts to generate high levels of uncertainty, accusations of cheating, chaos and conflict, legal challenges in court, and efforts among MAGA election officials to try and reverse the results by refusing to certify the vote count.
Current polling doesn’t suggest this outcome will be the case, but surprises sometimes happen (such as the election of Trump in 2016). A result such as this would mean that polling missed the enthusiasm of the anti-Trump coalition in American politics, or didn’t accurately account for new voters turning out in large numbers for Harris, or didn’t see undecided voters breaking largely for Harris, or got things wrong because some groups of voters (maybe suburban women) told pollsters they were likely to vote for Trump but in the end voted for Harris.
A bigger margin than the polling predicts in the popular vote would then translate into electoral college votes. Swing states often tend to move together. In recent elections it has been the case that states considered to be very close tended to have the vote break toward one candidate in a somewhat lopsided manner. In 2000 places like Ohio, Florida, New Hampshire, and Tennessee all were considered up for grabs, and all went to George W. Bush. In 2008 close states such as Ohio, Florida, Virginia, Iowa and Colorado all went for Barack Obama. Trump in 2016 took Michigan, Wisconsin and Pennsylvania out of the Democratic column. If Harris commands even a slightly larger popular vote than anticipated, this could mean that as many as five or six of the tossup states this year (Pennsylvania, Michigan, Wisconsin, Georgia, North Carolina, Arizona and Nevada) could go her way.
The value of this type of outcome for Democrats would be that it makes their feared scenario of post-election chaos, uncertainty and conflict much less likely. It’s one thing for Trump to try to secure one close state in the days after the election. The election in 2000, which came down to a few hundred votes in Florida, created a situation in which the Supreme Court could and did decide the election outcome. It’s quite another for this same thing to happen in five or six states. The process of counting and certifying votes is so decentralized in the United States that a series of challenges across multiple states is poorly suited as a strategy for flipping election results. This is why the electoral count was not in great doubt in 2020 once Biden was declared the winner, and why Trump had to resort to attempting a coup on January 6 to try and stay in office.
In short, a popular and electoral vote count tilting far enough in Harris’ favor means that Democrats would have to stay vigilant and fight back against any legal or political challenges posed by the Trump campaign. However, the GOP would have very little recourse to change the overall outcome. They would certainly engage in lawsuits and refusals to certify votes in some jurisdictions, but these actions would be seen as fruitless shenanigans that amount to very little.
A second scenario is that Harris wins by a small margin. This result probably has a 50-50 chance of happening. National polling averages show Harris about 1.5 percentage points ahead of Trump, and in the states of Pennsylvania, Michigan, and Wisconsin, polling shows her ahead in each by less than one percent. If Harris were to win those three states and all the other places where she’s now further ahead, she would win 270 electoral votes, the exact minimum number needed to win the presidency.
This outcome would put the country in a difficult and dangerous situation. Republicans would most certainly engage in the full court press effort they have been preparing for. They would seek to get votes for Harris challenged, thrown out, or not counted, and they might refuse to certify election results in places where they can attempt this, creating chaos and division and uncertainty, and filing lawsuits to try to get courts to approve their efforts. At the same time, of course, the Democrats would mobilize all their own efforts to challenge Trump and the GOP, trying to stop any effort to have Trump declared the winner in any state where a small Harris victory was being challenged.
This is a situation that presents the greatest possibility of significant post-election conflict and peril. Going down this path to “contemplate the ifs” could lead to surprising places. (At this point, we shouldn’t be shocked by surprises. Did anyone really expect the Capitol to be attacked on January 6?) It’s not difficult to imagine a situation in which Trump declares victory in the midst of disputes over an uncertain count in one or more states, and tells his supporters on election commissions to prevent Harris from stealing the election. This would also probably be a situation in which serious allegations of illegal behavior are made. Suppose that in the event of court battles there were findings of illegal behavior by Trump partisans to improperly impact the electoral outcome – these findings would certainly be considered by Trump and MAGA to be an illegitimate action by Biden or “the deep state” – where would the conflict stop? The language of insurrection is already used to describe January 6. Such language does not seem all that different from “rebellion,” so consider this: the writ of habeas corpus is used by a court to require someone to be released from prison when government has illegally arrested that person. However, Article I of the Constitution permits the government to suspend habeas corpus in cases of rebellion or invasion if public security demands it. Could/would President Biden find a “rebellion” to exist at some point? Could local MAGA election officials refusing to certify vote counts (or Trump himself, encouraging these actions), be taken into custody for inciting rebellion by interfering with requirements that have Constitutional impacts? Unlike what occurred during the Civil War, when President Lincoln suspended habeas corpus without major repercussions when he ordered the military to arrest southern sympathizers, we would not see any such action as this happen without plenty of controversy and clashes.
Another possible, and more likely, outcome in an unsettled vote count could be that one or more swing states could not or would not certify the election. This could further mean that any such states would not appoint electors, and this could prevent either candidate from winning an electoral college majority. This might be good for Trump, and it’s an outcome he and his campaign could be very happy with if he doesn’t win the election outright. If this were to happen, it could throw the vote to the House of Representatives, which would select the next president. The Constitution specifies that each state gets one vote per for president in the event no candidate wins an electoral college majority of 270 or more votes. This would be enough to bring about a Trump victory, since there are (and probably will be in January 2025, when a new Congress convenes) twenty-six states where Republicans make up a majority of state Congressional delegations.
Twice in the history of our country the presidential election was decided by the House of Representatives. The first was in 1800 when Thomas Jefferson defeated his own running mate Aaron Burr under older electoral college rules, and the second was in 1824 when John Quincy Adams was selected over Andrew Jackson, who won a plurality of the popular vote. In 1876, a dispute over competing electoral votes in three states led not to a vote in the House, but to Congress establishing an electoral commission that determined how to award the disputed electoral votes. The majority Republican commission gave all the contested electoral votes to Republican Rutherford B. Hayes, amidst a compromise that gave the Republicans the White House while giving Democrats an end to Reconstruction and removal of the last federal troops from southern states. These historical instances suggest that there could be more than one path in 2024 to deciding a disputed election in which no candidate wins a majority of the electoral college. These precedents also suggest that there could be multiple paths to conflict and chaos.
A close Harris victory presents another problematic situation that makes a replay of Florida in 2000 much more likely, such that the Supreme Court could rule Trump the winner of the election. This is because a very close electoral college count allows a reversal of the results in any one state to tilt the entire election toward one candidate or the other. If Harris were to win 270 electoral votes at first, but then lose any state via a judicial ruling, this would hand the election to Trump. The very conservative Supreme Court (one third of which was appointed by Trump) has already ruled favorably for Trump several times in cases he has been involved in, including the decision to give the former president legal immunity from any lawbreaking if it was done in his official duties. Therefore, it would not be surprising to see this same Supreme Court find some type of justification to declare Trump the winner if a case involving the vote count were to come to them.
A third scenario is that Trump wins the election, either by securing both a popular vote and electoral college victory, or more likely with only an electoral college majority, as happened in 2016. This scenario of a Trump victory also seems to have a 50-50 chance based on current polling. In this situation, the most likely response would be that both supporters and opponents of Trump would accept the results if the election seemed to be fairly won. However, the Democrats would vigorously contest the results in court if there appeared to be evidence of wrongdoing that led to Trump’s victory. Then if Trump became president, his opponents would continually try to fight back against Trump’s policies and blunt their adoption, implementation, and impacts for the next four years. This opposition would be particularly intense regarding any actions it sees as moving the country further away from democracy. The goal and hope of Trump’s opposition would be to prevent their worst-case scenario of strongman or authoritarian rule emerging in the United States (maybe with some assistance and advice from Vladimir Putin, a person who Trump has repeatedly praised and said he trusts more than American intelligence agencies), and preserve enough of a recognizable American republic so that by 2028 they can try again to take the White House.
The considerably less likely response by Democrats to a Trump victory would be to try to prevent a victorious Trump from ever taking office. Any such challenge would be grounded in the idea that people who want to protect democracy have an obligation to do so by preventing someone from coming to power who would destroy or diminish that democracy. This is a weighty question: Is it legitimate for those who want to preserve democracy to use non-democratic means to preserve that democracy? Considering that Trump has said things along the lines of, “vote for me once and you won’t have to do it again,” that he will take “revenge” on his political enemies and be his supporters “retribution,” and that he thinks it might be necessary to use the military against the “enemy within,” these statements provoke a tangible and well-grounded fear that Trump would take actions that mirror those of authoritarian and fascist governments. It is not only Democrats, but a number of “never Trump” conservatives such as former Republican member of Congress Liz Cheney, who worry that a victory for Trump could be “the last election you ever get to vote in,” and that the United States would become something far different than it has ever been, while Trump cemented control for the foreseeable future for himself and his allies.
While this may be a weighty question, it’s not a practical one. The Supreme Court in its 2024 decision on the scope of presidential immunity has given the president broad, sweeping immunity from legal accountability to act in an official capacity, not only to protect the Constitution and the country, but in any manner that is a function of the president’s official duties. While some might appreciate the irony that a legal decision meant to protect Trump could be used against him in some way by President Biden, taking such a step would be problematic and carry serious consequences for the country. It would prompt far greater division than already exists, and might make the United States ungovernable. This is not a viable or realistic option. Not to mention that any action such as this would be highly inconsistent with President Biden’s own words and deeds. He’s a genuine democrat (small “d”) who wouldn’t be the person to wound American democracy in this way.
One final point is that any of these scenarios – and the iterations that could follow down any of the paths described above – could create the possibility of violence and armed resistance, depending upon what kinds of actions are taken in response to a vote count that is problematic, uncertain, or going in a direction a particular campaign does not like. The trigger could be one of many things – a victory awarded to Trump by the Supreme Court, a razor-thin Harris victory that Trump refuses to accept, MAGA election officials preventing certification of a vote count, an impasse that sends the election to the House of Representatives or some ad hoc Congressional commission to sort out an electoral mess. The possibilities for reactions and counterreactions to escalate are very real, and represent a danger to the country.
The situation that has the greatest chance to allow for a democratic, peaceful outcome is a free and fair vote that is counted carefully and certified legally with a high level of transparency throughout the process.
And in the end, there is only one acceptable scenario and one outcome that keeps the United States safe and secure: a decisive Harris victory at the polls.