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OPINION

Trump might try to steal the election, but he probably wouldn’t succeed

Even if he claims on election night that he won, a lot of other things would have to happen for him to get away with it.

Broward County Mayor Dale V.C. Holness helped load vote-by-mail ballots onto a truck headed to a post office in Lauderhill, Fla. Florida is one of the states where mailed-in ballots will be counted even before Election Day, which might make it less likely that the outcome will remain unknown for long.
Broward County Mayor Dale V.C. Holness helped load vote-by-mail ballots onto a truck headed to a post office in Lauderhill, Fla. Florida is one of the states where mailed-in ballots will be counted even before Election Day, which might make it less likely that the outcome will remain unknown for long.Lynne Sladky/Associated Press

After four years of shredding practically every democratic tradition in American politics, President Trump’s actions last week represented a dangerous new front. On successive days, he refused to commit to the peaceful transfer of power should he lose the presidential election, because — according to Trump — the widespread use of mail-in ballots will be unfair to him. This comes on the heels of a major article in the Atlantic that lays out a strategy Trump and his GOP enablers could use to, in effect, steal the election.

The collective freakout that followed is understandable, but it feels disconnected from reality. The fact is, to steal the election Trump would have to rely on an extraordinary confluence of events — dominoes lined up one after another and falling in precise order.

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For example, one scenario being floated imagines that Trump is leading in key battleground states on election night and declares himself the victor before all mail-in ballots are counted. Then he questions the legitimacy of those ballots and tries to get Republican legislators in battleground states to appoint pro-Trump electors to the Electoral College, irrespective of the final outcome.

To call this far-fetched is putting it mildly. Nearly every poll, going back to the spring, shows Trump losing badly to Joe Biden. If Biden wins by a significant margin there’s a good chance we’ll know that on election night, making any effort to steal the election largely moot.

As Michael McDonald, a professor of political science at the University of Florida, told me, in states such as Florida and North Carolina, early and mail-in voting results will be known on election night. Like 38 other states, these two have processes in place to count ballots before Election Day. McDonald notes, tongue in cheek, that since those early results in Florida will likely favor Biden, he should immediately name himself the winner and if the Trump team cries foul, Biden could happily endorse his opponent’s new position of waiting to count every vote before declaring victory.

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In Michigan, Republicans in the state legislature agreed last week to a series of measures that would ensure state workers have more time to count votes before Election Day, minimizing the possibility of a significant delay in knowing the winner. There are perhaps only two toss-up states, Pennsylvania and Wisconsin, where Trump could be ahead on election night and at least theoretically able to call himself the winner before all the votes are counted.

Let’s say that happens. Then Trump would need Republican state legislators to go along with a strategy of declaring him the winner and appointing pro-Trump electors. But there’s a number of problems here, too. First, states already have rules in place for appointing presidential electors, and any effort to change them could run into a veto from those states' Democratic governors. Republican state lawmakers could try to argue that Article 2 of the Constitution allows Legislatures to choose electors in any manner they decide, but that would necessitate a lengthy legal fight that appears dubious, and a governor could appoint a set of Biden electors based on the actual election results.

Consider as well that to take such a step, Republican state legislators would have to vote en masse to reject the will of the voters of their state — an effort that also could put their own election victories in doubt. They could only really do this if vote counts were delayed not by days but by weeks, because only in the latter case would there be much confusion about the actual winner. Then they would need to find compliant judges to go along with their reading of the law. And they would likely need to do this in multiple states. Is any of this possible? Perhaps. Is it likely? No.

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Other doomsday scenarios that have been discussed include the Department of Justice, under Attorney General Bill Barr, seeking to impound mail-in ballots, which would require a court order and would be logistically intractable since such ballots would be spread out all over a state.

Even if all that happens, the election could be thrown to the House of Representatives . If a state sends multiple sets of electors, the House, which is controlled by Democrats, could choose to reject the pro-Trump electors and certify a Biden victory.

If one domino is out of place in these potential schemes, the whole thing doesn’t work. It also bears noting that few elected Republicans have reiterated Trump’s attacks on mail-in balloting. Indeed, Republicans in battleground states are urging their supporters to vote by mail — as is, ironically, the president’s campaign. Few members of Congress have been wiling to endorse his refusal to accept a peaceful transition of power. No state legislators are saying, on the record, they would go along with a plan to appoint pro-Trump electors. The defining characteristic of Republican fecklessness in the Trump years is inertia or the path of least resistance. Stealing an election is the path of most resistance.

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To be sure, Trump’s rhetoric is incredibly dangerous. The president is threatening to cast permanent doubt on the outcome of a presidential election, which could have troubling long-term ramifications. But we play into Trump’s hands by treating his bluster as determinative. In addition, we don’t do the American people any favors by elevating what are likely 1 percent outcomes to the realm of the likely. There are plenty of good reasons to be outraged by Trump’s behavior. Let’s stick to those rather than creating new ones.


Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.