What if Trump won't go? Legal scholar Lawrence Douglas on the "world of hurt" that could follow

The "Will He Go?" author explains how ill-equipped our system is to handle a worst-case election scenario

Published November 3, 2020 8:00AM (EST)

Donald Trump (Jabin Botsford/The Washington Post/Getty Images)
Donald Trump (Jabin Botsford/The Washington Post/Getty Images)

Lawrence Douglas saw it all coming. 

Long before the pandemic, before mail-in voting became a crucial part of the 2020 election, before the Postal Service was deliberately slowed, before hundreds of election-related cases were filed with the courts, the Amherst College law professor recognized that Trump didn't seem the type to share a limo ride down Pennsylvania Avenue with his successor and take part in a peaceful transfer of power. And so he asked a simple question: What guardrails exist if the election is close and Trump refuses to go? 

The answer, laid out in his punchy and essential new book "Will He Go? Trump and the Looming Election Meltdown in 2020," disturbed him. There weren't many. Our constitution, Douglas discovered, does not secure the peaceful transfer of power but rather assumes it as a given. The system was protected by politicians and parties that had internalized the norms of a democratic process.

But when norms no longer constrain a president or his party? All bets are off. The laws are a muddle. The nightmare scenarios are real. And what Douglas imagined as an intellectual exercise has become a horror show: His worst-case possibilities could actually be in play.

We talked last month about those nightmares, how little we can do to fix it, and perhaps most importantly, what Douglas will be drinking this evening. You also might want to start early.

Our system is clearly ill-prepared for the challenges of this moment. Here's a simple question: Why? How is this possible?

You're right, the constitution and our system of federal law doesn't secure the peaceful succession of power, they presuppose it. On one level you can say, "Why is that the case? Why don't they do more to actually secure it?" And I'm not sure they necessarily could. Any political system — any kind of system, even any game, it always presupposes that the principal actors are behaving in good faith, and that they've internalized the norms.

No legal system can secure itself. A legal system always needs some kind of deeper normative fabric or structure to rely on in order for it to work. And if that normative fabric starts to fray, then the system really can't protect itself. And I think that's what we've really seen very, very disturbingly, is the way in which that normative fabric has frayed.

That fraying, of course, runs deeper than Trump — but sets the table for this moment.

Yes, completely. They've been distorting and deforming those norms for a long time. Then, suddenly, you have a Trump, who just kind of smashes through them. 

One might expect that there would be a price to pay for smashing norms. But that hasn't happened for Trump. What does that say about norms?

Norms are different from laws. If they're broken, you don't necessarily face legal sanctions, but you would expect to feel political sanctions. There would be some kind of political price to pay. This is one of the most shocking things about his presidency, the way in which he's been able to smash through these norms with absolute impunity. The only way he could do that is because of the cover, protection and support that he gets from his other Republican lawmakers.

And with three cheers from conservative media. What role have Fox News and others played here?

The only way that Trump could continue to get the reliable support of these Republican lawmakers is to continue to have the reliable support of the Republican base. And he would not have been able to maintain the reliable support of the Republican base without right-wing media, and his megaphones in the right-wing media, like the likes of Sean Hannity. When people talk about the hyper-partisan politics of the moment, it makes it sound as if there's a symmetry between the polarization, which is simply untrue. It's very asymmetrical. The Republicans have, really, kind of a radical party. It's not a conservative party. I think people need to appreciate that.

We have a similar nightmare scenario for November 3: That it takes days and weeks to count mail-in ballots, that Trump declares victory, everything heads into the courts, and Republicans tee up Bush v Gore-style cases in a handful of states. Then if things remain unsettled as December nears, there could be wholesale chaos with electors and state legislators, under the worst-case scenarios. Tell us what worries you most?

It's exactly that. If you just look at the way balloting is going to break down on election day itself, potentially a lot more Trump supporters will be willing to vote in person than Biden supporters. It's not unlikely that Trump could have a lead on November 3rd. The thing that I worry about is that Trump is going to try to leverage whatever lead he has on November 3 into a claim that he's been re-elected. And that, as that lead erodes in the subsequent days, as the mail-in ballots start to get counted, that he will claim that, "Yeah, exactly. This is just everything that I've said coming true. That the Democrats have corrupted these mail-in ballots, it's all fraud."

Fox News will amplify it, naturally.

Yes, Fox repeats and amplifies it. You can reliably add Russian disinformation campaigns on social media. And then you could probably add in some genuine chaos when it comes to the counting of mail-in ballots. Chaos that results from human error, and chaos that results just from the litigation teams that are going to be descending on all these swing states, in particular. I mean, one of the statistics from the recent primary season in Pennsylvania, Wisconsin and Michigan, there were around 60,000 mail-in votes that were disqualified. And that's almost the same margin by which he carries those three states in 2016.

Trump has been making these claims of voter fraud since the beginning of his presidency. He claimed, baselessly, that he would have won the popular vote except for voter fraud. He had an entire Keystone Kops commission searching for voter fraud, the Kobach/Pence commission, which finds no proof and disbands ignominiously. And you started thinking about this book as far as back as that — you noticed something in his willingness to talk about fraud that raised worrisome questions.

Exactly. I'm sure lots of other people saw this as well. But the very first piece that I wrote for The Guardian was exactly on his claim that, but for the three to five million phantom voters, he would have won the popular vote as well. People think of this as Trump being kind of extravagantly narcissistic, that everything he does has to be bigger and better than everyone else's. But imagine the politics behind that kind of claim — and imagine what kind of damage you could do if you were to trot out that argument to challenge the results.

And then you started looking into the constitutional safeguards and laws surrounding this, and you became greatly comforted and relieved that the founders had thought about this in advance and had it all covered.

(Laughs.) I thought of it as a thought experiment. What would happen if he were to challenge the result, and how well is our system designed to troubleshoot a scenario like that? And of course the answer that I learned was, "Oh, it's not well-designed at all."

Was that a holy shit moment? Were you surprised by how little protections you found?

I think that's fair to say. "Well, wait a sec, there's got to be more here than this." 

Perhaps the key piece of legislation is the Electoral Count Act of 1887. Tell us about that.

Congress passed this in the wake of the disastrous electoral dispute of 1876. It's meant to guide Congress in dealing with any kind of future electoral dispute that lands in its lap.

I would say the best way to describe it — besides that it's impenetrable in its language, it's impossible to make sense of the words on the page — is that to the extent that it supplies any kind of advice, it says the best way for Congress to deal with an electoral dispute is to make sure it never lands in Congress's lap in the first place. "States, you figure it out yourself, and we'll just give you a date by which you need to figure things out." That's the most we can say for the ECA, because when it starts coming down to its more specific provisions, they're kind of gibberish. They lend themselves to so many conflicting interpretations that they provide very little guidance of how to get out of this kind of problem.

And this is the set of laws that we'll be counting on, that the courts and Congress will be looking to, to guide them through chaos?


Nonsensical gibberish.

Right. Precisely. That's our great statutory savior.

The laws governing states and state legislatures are also unclear. I read an interview with one of the pre-eminent election law experts recently, and someone asked him, well, say state legislatures attempt to name electors. Would that be subject to veto by the governor? And he threw his hands in the air, and said, "I've been studying this for decades. I don't know. Nobody really knows."


So what do we know? Walk us through what could happen, say, if Pennsylvania's count stretches past a week, courts get involved, the state legislature gets restless, Fox News goes 24/7 on voter fraud in Philadelphia. The legislature says, "We're going to name electors." And the Democratic secretary of state and governor say, "No, it's pretty clear that the popular vote went to Biden." You could have two different slates of electors looking to be seated.

That's right. If the state count gets slowed down as a result of human error, litigation, a fresh breakout of COVID — there are all sorts of ways that could really kind of slow down the count in states — then it could start pushing against the so-called safe harbor date of December 8, which is when, basically, the Electoral Count Act tells states, "Please figure out who has carried your state by then." If it looks like the margins are pretty narrow and the count is caught up in delays and confusion, yes, you can have conflicting electoral certificates submitted to Congress — and that's a world of hurt.

Then Congress needs to sort it out?

The new Congress that is inaugurated on January 3. If that remains divided, then it's just stalemate. There is hope. I mean, if that happened and the Senate was captured by Democrats, it would save us from that particular calamity. But the other thing we also bear in mind is, the same kind of confusion that could envelop the count of a presidential vote could also involve the count of all these down-ballot races.

What's the best case scenario to hope for if we want to avoid this? A big win that takes all the wind out of the "fraud" sales?

I think so. The best thing is to hand Trump a really decisive defeat, and that decisive defeat, obviously can't simply be in the popular vote. It has to be in the Electoral College and it has to be in the swing states as well. And the other thing is that the contours of that defeat need to be pretty clear, pretty early on. It's unlikely that we would know that on November 3, but it would be very helpful if we got the sense that Trump was heading towards a major defeat pretty quickly thereafter.

Would a big repudiation at the polls help create a Republican party that's less willing to ride the system off the rails?

I hope so. Maybe it would be a real gut check to the Republican party and show them that Trumpian politics has been very powerfully repudiated and they need to change. Hopefully it would encourage new Republican leaders to come to the fore who don't share contempt for democracy.

If this election is simply a close call, and we all breathe a sigh of relief, is there a way to strengthen these procedures so it can't happen next time?

I'm not sure about that. I don't think we would be worried about this election nearly as much as we are, if it weren't for the electoral college. I mean, the electoral college is tailor-made for someone who wants to engage in this kind of constitutional brinkmanship, because all you do is try to contest the vote in a handful of swing states. It's very hard to kind of cast doubts on — even though Trump tried, of course — to cast doubt on losing by 5 million votes. It's not going to be that hard to cast doubt if the election turns on 10,000 votes in Pennsylvania. And so if we just had a national public vote, I think that would be a very healthy step in the right direction. Not easy to achieve, but it would be nice.

What are you drinking on election night?

Pretty potent stuff.

By David Daley

David Daley, former editor-in-chief of Salon, is the author of the national bestseller “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.”

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