Donald Trump’s strategy for holding onto power is hardly hidden. Nor is what he might do unknown. Vice President Joe Biden now has an opportunity to set the ground rules. He should take it.
In the middle of the night, in his sanctuary in the residence of the White House, at 2:40 a.m., Friday before the election, Trump began his latest rage tweeting. First, he retweeted from a hashtag #bidencrimefamily a cartoon depicting him catching Joe Biden, Nancy Pelosi, John Kerry, and Mitt Romney with their hands in a jar labeled “Ukraine Cookies.” Then, seconds later, he tweeted again. In the wake of Supreme Court decisions provisionally allowing the counting of mail-in ballots in Pennsylvania after election day, he threatened the Court’s Justices. He warned them that by allowing vote counting the Court would be responsible for Biden’s winning the presidency and Biden in turn would “destroy” the court. “Don’t let this happen!” he instructed. He cautioned the conservative justices, three of whom he has appointed, that if they “helped make such a ridiculous win possible” they “would be relegated to sitting on not only a heavily PACKED COURT, but probably a REVOLVING COURT as well. At least the many new Justices will be Radical Left!”
Then, in another flurry, just after 9 a.m., he tweeted: “SUPREME COURT!” He followed a minute later with another tweet: “SECOND AMENDMENT!”
Trump has stated he would refuse to accept the results of the election if he lost (because he’s said it is impossible for him to lose with a free and fair election), and he would not agree to a peaceful transition of power. He has called mail-in voting fraudulent and a “scam.” He has said that the only way Biden could win is by rigging the election. He urged that the election day be postponed. He has hired teams of lawyers who have filed suits challenging the full counting of ballots past election day. He has called for 50,000 partisans to monitor polls while people vote (naming these recruits the “Army for Trump”). He has incited armed paramilitary white “militias” to intimidate elected officials.
Trump’s strategy is clear. He has ominously issued directions to the Supreme Court’s conservative Justices. He hopes to use his lawyers to thwart the full counting of votes. He intends to prevent certification of state results, forcing state after state into indecision in the courts. He hopes to bring cases before the Supreme Court, where he depends upon a conservative majority to rule in his favor. He wishes to frustrate not only a popular majority but also a resolution of the Electoral College. Instead, he wants to drive the election into the House of Representatives, where it would be decided by a one state/one vote rule, in which the Republicans currently control 26 out of 50.
On election night, Trump may launch this sequence of tactics by declaring himself the winner preemptively. Before the mail-in ballots can be counted, a “red mirage” of Trump same-day voters may create the perception that he has majorities in various swing states. Trump’s former campaign manager, Stephen K. Bannon, (under indictment for financial fraud and other felonies), laid out the game-plan: “At 10 o’clock or 11 o’clock… on November 3, Donald J. Trump is going to walk into the Oval Office, and he may hit a tweet before he goes in there… and he’s going to sit there, having won Ohio, and being up in Pennsylvania and Florida, and he’s going to say, ‘Hey, game’s over.’” Trump’s lawyers will then fan out to key swing states trying to stop the vote count. They will wave before the media a recent opinion by Justice Brett Kavanaugh, no matter how flawed and how inapplicable to their cause, as Justice Elena Kagan pointed out. Kavanaugh’s opinion suggests that states are well-reasoned not to count ballots after election day to avoid “the chaos and suspicions of impropriety” and “potentially flip the results of an election.”
Before Trump launches his scheme, Biden, the candidate himself, and not any campaign spokesperson, should declare that Trump must not take actions to undermine a free and fair election. Biden must be specific in his warnings. He must describe them in terms that pledges himself to the terms he sets for Trump. He must make clear that these are fundamental conditions to avoid the sabotage of democracy. Indeed, these are conditions that all presidential candidates should explicitly and easily accept in this and future elections.
Here are the commitments for maintaining a fair and free democratic election that Biden should advance before the election:
- No candidate should do anything to prevent votes from being counted, however long that process takes.
- No candidate should declare himself the victor on election night before the race is called by a consensus of professional news organizations.
- No candidate should attempt to slow or halt states from proceeding in certifying the results.
- No candidate should urge anyone to commit any interference with voting, or to engage in any threats, intimidation or acts of violence in connection with the election.
- No candidate should approve of carrying firearms or other weapons into areas where people are voting, counting votes or certifying votes.
- No candidate should be charging the other side with acts of voting fraud if local officials have not made such findings with a presentation of evidence.
- No candidate should be sending campaign officials, teams of lawyers or political operatives across state lines in any effort to slow or halt states from counting ballots.