The Trump Campaign’s Potential Electoral Strategy

9.29.20

Number of Words:

· 749 excluding the last paragraph

· 828 including the last paragraph

We learned last week for the first time in detail about the Trump campaign’s contingency plans for circumventing the popular vote in some states due to alleged fraud from massive mail-in voting. We also have learned how vulnerable Georgia is to the Republican Party’s plans.

In an article published last week in the The Atlantic, entitled “The Election That Could Break America,” Barton Gellman described plans that could apply in those states where: (1) Joe Biden wins the popular vote and (2) Republicans hold the majority in both houses. The plans call for Republican operatives, where deemed necessary, to challenge the Democrats’ slates of electors with alternative slates of their own.

Sound crazy? Constitutional scholars contend these plans are not only conceivable; they could succeed.

The Constitutional and Statutory Framework

The Founding Fathers provided in the Constitution brief instructions on how states will select their slates of electors. Article II, Section 1 simply states that each state legislature shall appoint electors “in such manner” as it may direct. The number of electors shall be equal to the number of the state’s Congressional delegation. By law or electoral practice, all states assign their electoral votes based on the popular vote.

Relatively few issues have arisen regarding these appointments; however, in the Hayes-Tilden Presidential election of 1876, questions arose when parties in three states submitted alternative slates of electors. Since no procedure set forth the means for resolving the issue, Congress assembled a bipartisan electoral commission that ultimately awarded Rutherford Hayes the electoral votes in an unfortunate deal that reversed post-Civil War rights in the South.

To avoid a repeat of this situation, Congress passed the Electoral Count Act. Professor Edward Foley, one of this country’s leading election experts, describes the Act as “convoluted” and “one of the strangest pieces of statutory language ever enacted by Congress.” Unfortunately, it also failed to resolve these elector conflicts.

As Gellman points out, confusion reigns. When one party challenges the electors of the other, one statutory interpretation calls for the governor to certify the electors unless the House and Senate agree otherwise. In the case of Georgia, Governor Kemp could certify the Trump electors, but the House would clearly object. Another interpretation of the Act would allow the Vice President to discard both contested slates, thus creating a variety of other unresolved issues. Many other interpretations exist, but if the dispute makes its way to Congress, literally “anything could happen.”

Trump’s Public Statements

For months, the President has railed against the “massive fraud” that will result from the increase in mail-in ballots. First, he contends without evidence that mail-in ballots pose issues of domestic and foreign manipulation, forgery, and illicit voter harvesting. According to Trump, such ballots provide the only way he could actually lose the election. Yet, he claims, a simple solution exists: “Get rid of the [mail-in] ballots” and he will continue in office.

Second, he objects to states allowing ballots to be postmarked as of election day with subsequent days allowed for their review and counting. Third, the delay caused by the second objection will necessarily prevent America on election night from “actually hav[ing] an evening where we know who wins.” His supporters have even suggested that we simply quit counting votes on election evening and anoint the candidate on top at that time.

Georgia’s Perfect Storm

Georgia has become a swing state in this election and threatens to raise all three of Trump’s concerns. First, in the June primary this year, 1.1 million mail-in ballots were cast (with even more expected in the general election), compared to 227,000 absentee ballots in 2018. A Monmouth poll from July indicates that 60% of Georgia Democrats plan to use mail-in voting while only 28% of Republicans have such a plan.

Second, on August 31, a Federal District Judge overruled the Georgia law requiring mail-in ballots to be received and counted by election day. Ballots postmarked on or before election day and received within three days following the election shall be counted.

Third, the judge’s ruling will necessarily delay the final results beyond election night.

So, What Will Happen?

No one knows for sure, but the possibility of a Constitutional challenge to Georgia’s electors might happen. Gellman simply states that if the Democrats win the House and Senate and if the election outcome depends on the issues discussed above, Joe Biden will win. Professor Foley’s article describes a dizzying number of questions and resolutions, but most options will certainly involve litigation.

We should, however, not overlook the obvious. The safety of mail-in voting is not a documented issue. A reasonable delay in announcing a winner, regardless of the time it takes to count the ballots, should likewise not create aberrations in our republic. These are the obstacles and sacrifices of democracy that we, at times in our history, must address. As James Madison warned, in Federalist №10: “Enlightened statesmen will not always be at the helm” of our government.