Here’s What’s Coming at Us
    in the Election from Hell

Well before midnight on November 3rd, Donald J. Trump will declare victory. Votes from the high percentage of Republicans who went to the polls will have put the president in the lead at that hour. Votes by Democrats, a high percentage of them mailed in, will have as yet barely been counted.

Trump will be following his rule. By end July he began insisting that the winner be declared on election night. “Must know Election results on the night of the Election, not days, months, or even years later!”, he tweeted. He had inserted himself into the Florida primary to say,
Voters on a gym floor

with no evidence, "[M]any ballots are missing or forged. An honest vote count is no longer possible...Must go with Election Night!”.

That Democrats are forecast to be the biggest users of mailed ballots means totals for Democratic candidates are expected to rise in the days after November 3rd — the so-called "blue shift". But Trump's voter base will have embraced his claim of election night victory, just as his instant claim of "exonerated" displaced the facts of the Mueller report ahead of its release. They will rebel against ongoing changes in the vote count because the president has told them that mailed ballots are rife with fraud. FBI Director Christopher Wray says, "We certainly have seen very active efforts by the Russians to influence our elections" and the expectation is that they will flood social media with the same message — that Trump has already won on election night. Trump believers will have joined the Russians against the rest of America.

By now the public is very much aware of the president's months-long tirade that calls voting by mail a "catastrophic disaster", "INACCURATE AND FRAUDULENT", "an easy way for foreign countries to enter the race". He even managed to insert unsubstantiated claims of fraud into the first debate, with no objection from moderator Chris Wallace of Fox News. “There is tremendous evidence of fraud whenever you have mail-in ballots,” he says, contrary to the experience of states that for years have conducted elections solely by mail. He has raged against mail voting all year, tweeting that “there is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent.” Over the summer, he claimed that Nevada and Michigan had “illegally” sent absentee ballots to voters, and complained that "the 51 Million Ballots that are being sent to people who have not even requested them...are setting the table for a BIG MESS!”. But none of these were ballots. (The conventions had not even taken place yet.) They were only forms for requesting a ballot, once ready, and were sent only to registered voters. The first actual ballots were not sent out until mid-September, by North Carolina. Thus has Mr. Trump been working to undermine Americans' confidence in the electoral process.

Fraud, which is vanishingly small, of course is not the reason. Trump cares not at all for fraud, knowing it is a fiction. The real reason is that the Republican Party has worked doggedly to hinder or prevent access to the polls by blocs that it perceives vote Democratic — blacks, Latinos, college students. And now, suddenly, along comes a threat to make it easier for them to vote by simply mailing in a ballot. Those extra votes from people who would have found it difficult or costly to get off work to go to a polling place would, for Trump, who thinks out loud and gives the plot away, cause "levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again”.

States are well aware of the dilemma they face. At greater risk from the pandemic, the older people who traditionally man the voting booths — 58% of poll workers are 61 or

older — are staying away. States saw that in the Wisconsin primary Milwaukee's 180 polling places were reduced to five because poll workers were too fearful. States are trying to attract younger people to the job to prevent a disastrous meltdown at polling places.

To bypass what they fear will be a clogged postal system, states are positioning ballot drop-off boxes. In 2018 in Colorado, which votes nearly entirely by mail, 75% of ballots were returned to a drop box or at a polling place rather than mailed. But that goes against the Trump campaign which has sued states, fighting any steps that diminish in-person voting at poll sites. The campaign is working to enlist 50,000 volunteer poll watchers to catch "all the thieving and stealing and robbing they do", said the president at a late-September rally, meaning Democrats. Donald Jr. has a television ad out asking for "every able-bodied man, woman to join the army for Trump's election security operation. We need you to help us watch them". Note the word "army". We will be watching his army intimidate voters, especially in Black districts.

By August the Trump campaign and the Republican National Committee were involved in 40 lawsuits in 17 states, part of some 160 lawsuits filed by party organizations, campaigns, and interest groups across the country, "efforts to throw tacks in front of the tires to make it so states can’t run their elections", as Michael Waldman, president of the Brennan Center for Justice, put it.

Out of overall turnout that could reach 150 million, somewhere north of 80 million ballots are expected to be cast by mail. Processing this quantity against voter rolls and comparing signatures will be slow, even though many states begin before Election Day — 14 days before the election in Arizona and 22 days in Florida, for example. So just how soon after November 3rd we will see various states reporting their counts is difficult to assess.

With his relentless inveighing against mailed ballots, Trump has been setting up the expectation of fraud, just as he constantly said in 2016 that a Democratic win would mean that election was "rigged". As "blue shift" sets in, the president will unleash a tirade of ALL CAPS Twitter blasts from the Oval Office as the counts rise for Biden. His "base" will agree because Trump has been indoctrinating them with a steady cascade of misinformation. They will agree when he tells them it is "the most corrupt election in the history of our country, and we cannot let this happen”. He has already said that. The president has accused Democrats five times of “rigging” the election through mail-in voting. By staying away from the polling places and instead using the mail, Democrats will be “using COVID to defraud the American people, all of our people, of a fair and free election."

But Democrats worry that a sizeable segment of the public, dismissive of "blue shift“ claims, will reject the growing Democratic count in the days after the election, as we posited above. "It may start to look as if, when an election goes into extra innings, one of the two teams is given extra at-bats,” wrote Edward Foley, an election expert at Ohio State University, and Charles Stewart, a political scientist at M.I.T. Here is where violence will break out. The Proud Boys, told by Mr. Trump to "Stand back and stand by", will decide this is their moment.

Mr. Trump has made it clear he will not hesitate to go to court if he does not like the result in states where the vote is close. This is also the moment when Attorney General Barr will step in with civil suits claiming fraud and announcing investigations to tie up the election.

Early on, the two of them settled on the notion that the source of mail-in balloting corruption would be foreign. We reported in "To Stay in Power Will He Steal the Election?" that as far back as April Barr speculated that "foreign governments might conspire to mail in fake ballots". In one week in June, Trump tweeted four times of foreign sabotage. “Ballots will be printed by foreign countries, and others. It will be the scandal of our times!". This has been a steady theme ever since — repeated so often as to be an invitation to “foreign powers who don’t want to see Trump win”, as Trump tweeted. It brings to mind his "Russia, if you're listening" entreaty to the Kremlin to find Hillary Clinton's missing e-mail.

Why foreign? The fraud they will claim — and it is certainly their plan to do so else why the commotion about mailed ballots — needs substantiation. It will be difficult to fabricate frauds generated by actors within the U.S. and sizeable enough to make a difference in key battleground states. “Imagine if you tried to change the outcome in Pennsylvania; you’d need a widespread conspiracy,” said Richard Hasen, an election law expert at the University of California, Irvine. Instead, the amorphous notion of a deluge of phony ballots from outside the country — China, one can guess, which presumably prefers Joe Biden.

We won't see these ballots. They'd be too difficult to falsify. How could the conspirators get voter registration information and signatures before knowing in what state the counterfeits would be needed to sway the election? So the "rigged" ballots will be held under wraps, highly classified, "under investigation" by Barr's Justice Department while the law suits block any resolution of Electoral College delegates in states where fraud is claimed.

Under federal law, the slate of electors, Republican or Democrat, in each state must vote on December 14th to select the new president and vice president according to which have won in their state. The date can’t be changed without an act of Congress. But what if, thanks to legal attacks on the election outcomes, the results are disputed? What if a Republican-led state legislature uses the Trump fraud lawsuits as justification not to certify a Democratic elector slate, or a Democratic governor, disgusted by Trump's obstruction, refuses to sign off on the slate passed by a Republican-controlled legislature?

Under the so-called safe harbor provision, states have until December 8th to resolve disagreements, meaning only five weeks after the election. If a dispute isn’t resolved by then, a state's legislature has until the December 14th deadline to determine how to select its electors else forfeit its electoral votes. It was on that deadline that the Florida recount was halted by the Supreme Court in 2000, handing the presidency to George W. Bush who held a mere 537 vote lead, but was 544,000 votes behind Al Gore in the national vote.

Nothing compelled Gore to honorably concede in 2000. That Trump would do the same is inconceivable. In 2020, what if instead of one Florida, we have a dozen Floridas?

The Supreme Court may be leery of another 2000 debacle, but if it does step in to decide campaign lawsuits, it will be after the utterly devoid of scruples Mitch McConnell has pushed through Trump's replacement of Justice Ginsburg, Amy Coney Barrett. Trump tweeted, "We have this obligation, without delay!", though he spoke of no such obligation in 2016. McConnell blocked for almost a full year any consideration of Barack Obama's choice of Merrick Garland for the court on the grounds it was an election year; what a surprise he has abandoned that violation of the Constitution in this election year. With a 6-to-3 conservative-to-liberal imbalance there will no longer be a possible ethical swing vote from Chief Justice Roberts.

If the Court doesn't step in, and there are states missing from the Electoral College vote resulting in neither candidate amassing a majority of votes, we could have two self-declared presidents on the eve of next year's inauguration. That throws the decision to the House of Representatives which "shall choose immediately, by ballot, the President", as called for in the Constitution's 12th Amendment (1804). Assuming the Democrats still control the House after the election, Biden is voted the next president of the United States, yes? Well, no. It doesn’t work that way. The Amendment gives each state a single vote, making the smallest red states equal to the largest. How a state votes is controlled by which party in that state has the most representatives: 26 states have a majority Republican House delegation, 23 states have a majority Democratic delegation. Pennsylvania is evenly split. Trump wins, 26 to 23. "Any victor who emerged from such chaos would serve under a cloud of illegitimacy, promising four more years of political instability", write David Rivkin and Lee Casey, who both practice appellate and constitutional law, in a Wall Street Journal op-ed.

But Donald Trump, with Bill Barr coaching, may not want to risk the dicey procedural tangle of the Constitution. More ominous than another election decided by the Supreme Court, or by the House, is what we reported a while back — that Bill Barr, who thinks the president should have near absolute power, was having his Justice Department pull together all the emergency powers available to the president and simultaneously developing "a Justice Department opinion arguing that the president can exercise emergency powers in certain national security situations", as reported by Newsweek.

What is that about?

A year ago January, we laid out what is known about those emergency powers. Congress itself early in the last century legislated various statutes expressly kept secret and dormant, to be awakened only when a president decided there was a national emergency to deal with. Once activated, these powers have stayed active, passed from one president to the next.

The Brennan Center for Justice at New York University has compiled "an extensive list of presidential emergency powers that might be inappropriately invoked in a national security crisis".

They are secret, and the Center could only divine what's in the estimated 50 or 60 documents largely through the cracks in Freedom of Information requests of FBI memorandums. Those peeks have shown mention of suspension of the Constitution, curfews, suspension of habeas corpus, voiding of Americans’ passports, warrantless searches, the imposition of martial law, and an FBI “Security Index” of more than 10,000 persons considered to be subversive and subject therefore to detention.

These items have never been invoked, but now Donald Trump is president. He has shown an appetite for them, but we weren't paying much attention. On March 12th he spoke of his “strong emergency powers” and declared, “I have the right to do a lot of things that people do not know about.” A week later he told us his thinking: “When somebody’s the president of the United States, the authority is total. And that’s the way it’s got to be.”

Beneath his subdued demeanor one can see Barr is angry. He exhibits a paranoid vision of where the country is headed, evidenced in his speeches, such as last October at Notre Dame found here. He blamed increasing secularism for every social pathology in America today and espoused a "need for a resurgence of Catholic education — and more generally religiously-affiliated schools". He is alarmed that with Biden as president the country would be "on a path to socialism". He seems ready to take drastic action to keep Trump in power; his interest in emergency powers raises the prospect of having the president put them to use.

In the midst of several states deadlocked in the certification process, might that be when Trump, schooled by Barr, declares a national emergency, suspends the election, institutes a number of the powers listed, and — as those who fear for this democracy do not think outlandish to suppose — declares martial law in place of constitutional law, with himself continuing as president for as long as he decides the emergency exists? Thus, to avoid socialism, would Barr destroy our democracy, and with the full concurrence of Donald Trump, who has no ideology, shows no concern for the nation's constitutional foundation, and has no other goal than to stay in power.

The ensuing riots would tear America apart. Trump has said,

"I have the support of the police, the support of the military, the support of the Bikers for Trump — I have the toughest people, but they don't play it tough — until they go to a certain point, and then it would be very bad, very bad".

White supremacist militias, eager to perpetuate Trump's anti-immigrant policies, would face off against outgunned ordinary citizens. The 240-year American experiment in democracy will have come to its end. When Benjamin Franklin walked out of Independence Hall after the Constitutional Convention in 1787 and someone shouted, “Doctor, what have we got? A republic or a monarchy?”, Franklin supposedly responded, “A republic, if you can keep it.” We are about to see whether we can still keep it.