Preventing a Disrupted Presidential Election and Transition
August 3, 2020
In June 2020 the Transition Integrity Project (TIP) convened a bipartisan group of over 100 current and former senior government and campaign leaders and other experts in a series of 2020 election crisis scenario planning exercises. The results of all four table-top exercises were alarming. We assess with a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape. We also assess that the President Trump is likely to contest the result by both legal and extra-legal means, in an attempt to hold onto power. Recent events, including the President’s own unwillingness to commit to abiding by the results of the election, the Attorney General’s embrace of the President’s groundless electoral fraud claims, and the unprecedented deployment of federal agents to put down leftwing protests, underscore the extreme lengths to which President Trump may be willing to go in order to stay in office.
In this report, TIP explains the basis for our assessment. Our findings are bolstered by the historical experience of Bush v. Gore (2000) and other U.S. electoral dysfunctions. The closest analogy may be the election of 1876, a time of extreme partisanship and rampant disenfranchisement, where multiple states proffered competing slates of electors, and the election was only resolved through a grand political bargain days before Inauguration—one that traded an end to Reconstruction for electoral peace and resulted in a century of Jim Crow, leaving deep wounds that are far from healed today.
Among the findings we highlight in the report:
- The concept of “election night,” is no longer accurate and indeed is dangerous. We face a period of contestation stretching from the first day a ballot is cast in mid-September until January 20. The winner may not, and we assess likely will not, be known on “election night” as officials count mail-in ballots. This period of uncertainty provides opportunities for an unscrupulous candidate to cast doubt on the legitimacy of the process and to set up an unprecedented assault on the outcome. Campaigns, parties, the press and the public must be educated to adjust expectations starting immediately.
- A determined campaign has opportunity to contest the election into January 2021. We anticipate lawsuits, divergent media narratives, attempts to stop the counting of ballots, and protests drawing people from both sides. President Trump, the incumbent, will very likely use the executive branch to aid his campaign strategy, including through the Department of Justice. We assess that there is a chance the president will attempt to convince legislatures and/or governors to take actions – including illegal actions – to defy the popular vote. Federal laws provide little guidance for how Congress should resolve irregularities when they convene in a Joint Session on January 6, 2021. Of particular concern is how the military would respond in the context of uncertain election results. Here recent evidence offers some reassurance, but it is inconclusive.
- The administrative transition process itself may be highly disrupted. Participants in our exercises of all backgrounds and ideologies believed that Trump would prioritize personal gain and self-protection over ensuring an orderly administrative handoff to his successor. Trump may use pardons to thwart future criminal prosecution, arrange business deals with foreign governments that benefit him financially, attempt to bribe and silence associates, declassify sensitive documents, and attempt to divert federal funds to his own businesses.
These risks can be mitigated; the worst outcomes of the exercises are far from a certainty. The purpose of this report is not to frighten, but to spur all stakeholders to action. Our legal rules and political norms don’t work unless people are prepared to defend them and to speak out when others violate them. It is incumbent upon elected officials, civil society leaders, and the press to challenge authoritarian actions in the courts, in the media, and in the streets through peaceful protest. Specific recommendations include:
- Plan for a contested election. If there is a crisis, events will unfold quickly, and sleep-deprived leaders will be asked to make consequential decisions quickly. Thinking through options now will help to ensure better decisions. Approach this as a political battle, not just a legal battle. In the event of electoral contestation, sustained political mobilization will likely be crucial for ensuring transition integrity. Dedicated staff and resources need to be in place at least through the end of January.
- Focus on readiness in the states, providing political support for a complete and accurate count. Governors, Secretaries of State, Attorneys General and Legislatures can communicate and reinforce laws and norms and be ready to confront irregularities. Election officials will need political and public support to see the process through to completion.
- Address the two biggest threats head on: lies about “voter fraud” and escalating violence. Voting fraud is virtually non-existent, but Trump lies about it to create a narrative designed to politically mobilize his base and to create the basis for contesting the results should he lose. The potential for violent conflict is high, particularly since Trump encourages his supporters to take up arms.
- Anticipate a rocky administrative transition. Transition teams will likely need to do two things simultaneously: defend against Trump’s reckless actions on his way out of office; and find creative solutions to ensure landing teams are able to access the information and resources they need to begin to prepare for governing.