Americans will almost certainly go to bed on Nov. 3 without knowing who won the presidential election. Since millions of people will vote by mail, constraints on time and resources will slow ballot counting into potentially a weeks-long process. Voting patterns suggest it’s likely that President Donald Trump could end Election Day in the lead in certain key states, only to be overtaken by Democratic opponent Joe Biden when more votes are tallied.
This could create a nightmare scenario during the three months stretching from Election Day to the Jan. 20 inauguration: a battle on the state and congressional level over who is the legitimate winner. This could include Congress reconvening on Jan. 6, presided over by Vice President Mike Pence, with no consensus over its potential role in choosing the next president.
This is arguably the most likely of the contested-election narratives, and now the Supreme Court — which would likely have to rule on the legal arcana at issue in this epic battle — has been thrown into its own nightmare scenario with the death of Justice Ruth Bader Ginsburg.
Trump is already setting the stage to declare that anything but a victory for himself means the election is rigged. His penchant for conspiracism and open contempt for American democracy, combined with this procedural confusion, could lead to a genuine democratic crisis. That may not lead to the sort of authoritarian takeover that some, such as Trump’s former top political adviser Roger Stone, have dreamed of. But Trump could use the courts, along with Republican allies at the state level and in Congress, to cling to power.
“Trump is a norm breaker,” Rick Hasen, an election law expert at University of California-Irvine and the author of “Election Meltdown.” “He has lied repeatedly about the security of mail-in balloting. He has made numerous unsupported claims about how the only way he could lose his election is if it is rigged against him. And so, he’s been actively casting doubt on the election process and creating the conditions where I think both sides believe the other side is primed to steal the election.