THE COUNT A practical guide to defending the Constitution in a contested 2020 election by Zack Malitz, Brandon Evans, and Becky Bond
Last updated October 14, 2020
Contact us at hello@thecountguide.com
PREFACE
“Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer,
frankly. There will be a continuation.” – Donald Trump, September 23, 2020
“Rule #1: Believe the autocrat.” – Masha Gessen, Autocracy: Rules for Survival
Introduction written October 11, 2020
We are days away from the most important election of our lifetimes.
If everyone is able to vote and every vote is counted, Donald Trump will lose this
election. But, if Joe Biden doesn’t win in a landslide, a narrow margin of victory may not
be sufficient to ensure that Biden is sworn in as our next president.
We believe that in a close election, Trump is likely to try to overturn the results of the
election by disrupting the normally perfunctory process of casting and counting
Electoral College votes. If that happens, we will be in dangerous and uncharted waters.
Many people are skeptical that it will come to this. They argue that Trump will try to
save face by claiming the election was rigged against him but won’t try to hang on to
power after losing an election.
After all, there’s no precedent for a president attempting to seize power in spite of
losing an election. In the United States, none of our elections have been fully free and
fair – many people have been and continue to be denied full voting rights – but after
every presidential election in our history a loser has conceded to a winner and worked
to accomplish a peaceful transition of power.
Further, the skeptics argue, Trump can’t steal the election by himself. He’ll need lots of
Republican accomplices and a few Democratic appeasers in swing states and
Congress.
As public concern about the possibility of a disputed election has grown, many of those
Republicans have been unequivocal in promising to respect the results of the election
and to ensure a peaceful transition of power.
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We hope they will, and we hope that whoever the winner is the 2020 election ends
with both candidates accepting the results of the election.
But we aren’t optimistic. Over the last four years, whatever anti-Trump opposition
existed in the Republican Party before the 2016 election has collapsed. Republicans at
all levels of government have defended Trump and loyally advanced his agenda. In fact,
they seem to fear his base.
As for Trump, it’s clear that he’s willing to do anything to win.
The premise of this guide is that we should take Donald Trump’s threat that he
won’t accept the results of the election at face value and prepare for a protracted
conflict after Election Day. This is a guide to the constitutional crisis we’ll face if Trump
follows through on his threats and Republicans back him, and a strategy for how
ordinary people and Democratic elected officials can stop an attempted coup.
We would like to believe that if Trump and the Republicans attempt to overturn the
results of the election, the law and shared political norms will be enough to stop him.
But it would be dangerous to believe such a thing.
Our system runs on mutual good faith, on the shared commitment of leaders in both
parties to prioritize national unity over partisan goals. Trump’s presidency has shown
that political norms and even the laws themselves are only as durable as those elected
to uphold them. Trump has open contempt for democracy and, so far, our laws and
norms haven’t restrained him.
If the results of this election are contested, it won’t be a legal battle that determines the
outcome. It will be a contest of political will and power. Pleading with courts and
Republican officials to do the right thing is akin to continuing to play a board game
that the opposition has set on fire.
We aren’t confident that Democratic officials at any level of government – from Joe
Biden and the DNC to local election administrators – are prepared for this kind of
conflict.
In 2000, the last time the country had a contested presidential election, Democrats put
their faith in the courts while Republicans fought a dirty war to prevent Democratic
voters’ ballots from being counted. The result was eight years of George W. Bush in the
White House.
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This time, Democrats need to be prepared to play hardball: If Trump tries to overturn
the results of the election, 2020 will no longer be an election between two
candidates. It will be an all-out war between the American people and a would-be
autocrat seeking to destroy our country. Democrats must be prepared to use all the
legal tools at their disposal to ensure that the election results reflect the will of the
people.
We want to be very clear: The nightmare scenario we describe below isn’t inevitable. If
there’s one thing that we’ve learned in the last four years, it’s that none of us has a
crystal ball. Our claim isn’t that the Republicans will inevitably try to overturn the results
of the election – only that it’s possible that they will, and that if they do we have to be
ready.
The thought of a disputed election is disturbing, even terrifying. It should be. But we
want to be clear: Don’t despair. We have the power to stop Trump from stealing the
election. We can win this fight.
Trump’s most dangerous weapon is paralysis induced by shock and chaos. The
purpose of this guide is to help our readers – from ordinary people to Democratic Party
officials at every level – prepare psychologically and materially for a high stakes battle
to defend our constitutional government.
To save our country in a crisis, we will need to act quickly and decisively. And to do that
we need to have a clear understanding of Trump’s strategy and what we can do to
counter it.
If millions of ordinary people organize their communities, protest at an unprecedented
scale, and execute a targeted strategy to win, and if Democrats in swing states and
Congress take determined action, we will thwart Trump’s autocratic ambitions. As
concerned as we are about the odds of the crisis described below, we are just as
certain that a supermajority of Americans will fight to defend the Constitution – and
win.
In solidarity,
Zack Malitz
Brandon Evans
Becky Bond
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WHO WE ARE
If you want to contact us for any reason, please email hello@thecountguide.com .
Zack Malitz has helped lead advocacy and candidate campaigns for climate justice, civil
liberties and racial justice for the last 10 years. He’s a partner at The Social Practice and
a co-founder of the Real Justice PAC. In 2018, he ran Beto O’Rourke’s record breaking
statewide organizing effort, and previously worked as the Deputy Distributed
Organizing Director for Bernie 2016.
Brandon Evans advises elected prosecutors across the country who are trying to
reform the criminal legal system as the national political director of Real Justice PAC.
Previously Brandon managed campaigns for Philadelphia Mayor Jim Kenney and
Philadelphia District Attorney Larry Krasner, and was the director of Working Families
Party Pennsylvania.
Becky Bond is a veteran of political campaigns and the co-author of “Rules for
Revolutionaries: How Big Organizing Changes Everything” about her experiences on
Bernie Sanders 2016 presidential campaign. She is the executive director of Real
Justice PAC and a partner at The Social Practice.
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CONTENTS
PREFACE 1
WHO WE ARE 4
CONTENTS 5
KEY DATES 6
I. Understanding the System: How the United States Actually Elects Presidents 7
THE ELECTORAL COLLEGE 7 What If Neither Candidate Wins? The Disputed Election of 1876 8 NOVEMBER 3 – ELECTION DAY 9
The “Blue Shift” 10
DECEMBER 8 – SAFE HARBOR DEADLINE 11
DECEMBER 14 – THE ELECTORAL COLLEGE MEETS 11
Faithless Electors 11
JANUARY 6 – CONGRESS COUNTS ELECTORAL COLLEGE VOTES 12
How Does Congress Resolve Disputes Over Electoral College Votes? 12
JANUARY 20 – INAUGURATION DAY 13
FLORIDA 2000 – A CAUTIONARY TALE 14
II. Understanding the Threat: How Trump Could Disrupt the Election
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NOVEMBER 3: VOTER SUPPRESSION 16
Action Steps Before the Election 17
DECEMBER 8:
DISRUPTING THE BALLOT COUNT 18
DECEMBER 8 THROUGH DECEMBER 14:
THE ELECTORAL COLLEGE 21
How Will We Know Biden Won If All the Votes Aren’t Counted? 21
Action Steps Between November 3 and December 14 23
JANUARY 6: CONGRESS AND THE ELECTORAL COLLEGE COUNT 27
The Electoral Count Act of 1887 28
What About the Supreme Court? 29
Action Steps Once the Fight Moves to Congress 31
III. Conclusion: Defending Democracy 33
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KEY DATES
NOV 3 Election Day: In a close election, we are unlikely to know
which candidate won on election night.
DEC 8 The “Safe Harbor” Deadline: States must resolve disputes
over which ballots to count and report final vote totals or risk
their Electoral College votes not being counted by Congress.
DEC 14 Deadline for Governors to Report Election Results to
Congress: In each state, the governor must send a “certificate
of ascertainment” to Congress reporting which candidate won
the state and which slate of electors has been appointed to
the Electoral College.
The Electoral College Meets: In each state, the winning
candidate’s slate of pledged electors meet, cast their votes,
and send a record of their votes to Congress.
JAN 3 Start of the 117th Congress: All newly elected or reelected
senators and representatives are sworn in.
JAN 6 Congress Counts Electoral College Votes: Congress
convenes in a joint session held in the House chambers to
count Electoral College votes and choose the next president.
JAN 20 Inauguration Day: The newly-elected President is sworn in. If
Congress hasn’t chosen a new president, the newly-elected
Vice President is sworn in as the acting president. If Congress
hasn’t chosen a new Vice President, the Speaker of the House
is sworn in as the acting president.
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I.
Understanding the System: How the United States Actually Elects Presidents
THE ELECTORAL COLLEGE
“According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly.” – Barton Gellman, The Election That Could Break America, The Atlantic, September 23, 2020
Donald Trump knows that he’s losing. According to the polls, he’s likely to lose both the
popular vote and the Electoral College vote – possibly by huge margins.
Assuming the polls are correct, the only option he has left if he wants to stay in office is
to cheat. Unfortunately, there’s a real possibility that Trump and his allies can overturn
a Biden victory.
In a country with universally well designed and competently administered processes for
voting and counting ballots, it would be impossible for a candidate like Trump to
overturn the results of the election.
But that isn’t the country we live in. The combination of an arcane system by which
Electoral College votes are cast and counted, the administration of ballots and elections
by individual counties instead of the federal government, and a global pandemic make
our system vulnerable to a candidate like Trump who will do anything to win.
There are two common misconceptions about how presidential elections work: (1) that
the candidate who receives the most votes wins; and (2) that each voter votes directly
for a presidential candidate. Neither of these are true. Under our Constitution, citizens
don’t vote directly for a presidential ticket, even if that is the box they check on their
ballot. They vote for what are called electors.
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Electors are actual people chosen by the chairs of state political parties who have
pledged to vote for that party’s presidential candidate in what is called the Electoral
College. When you cast your ballot for Joe Biden, you are actually voting for a
state-level slate of Biden electors who, when the Electoral College votes on December
14th, will cast their votes for Joe Biden.
There are 538 total Electoral College votes and a candidate needs a majority to win. As
we know from George W. Bush’s victory in 2000 and Donald Trump’s in 2016, a
candidate can receive fewer votes nationally than their opponent, even millions fewer,
and still win if they receive a 270 vote majority in the Electoral College.
WHAT IF NEITHER CANDIDATE WINS?
It’s unlikely that neither candidate gets 270 electoral college votes, but you’re still
likely to hear a lot about this scenario. Even Trump has mentioned it.
If neither candidate gets 270 electoral college votes, the Senate votes to choose the
vice president and the House of Representatives votes to choose the president. In
this special House vote, members don’t cast votes individually; instead each state
delegation gets a single vote.
Although Democrats have a majority in the current Congress, Republicans control 26
of the 50 state delegations, meaning in 26 states there are more Republican
members of the house than Democratic members. While Democrats may control
more state delegations after November 2020 than they do currently, even in the most
optimistic scenario they are unlikely to control more than 25.
If the House vote is a tie – as it likely would be if Democrats and Republicans each
controlled 25 delegations – the vice president chosen by the Senate would be sworn
in as acting president on January 20.
In almost every case, after a state finishes counting its ballots, its governor certifies the
results and sends an official document to Congress notifying it of which electors will
vote in the Electoral College. The winning candidate’s electors meet, vote, and send a
record of their vote to Congress, which counts the votes and determines which
candidate won the Electoral College vote.
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This whole process is largely ceremonial and uncontroversial – except when it isn’t. In
very rare but important instances, there has been serious disagreement over the
outcome of the election in a given state. In these cases, state legislatures have
appointed a second, competing slate of electors in addition to the slate appointed by
the governor. Both slates of electors vote and send their votes to Congress, forcing
Congress to decide which Electoral College votes to count and who will be the next
president.
This isn’t how it’s supposed to work. It’s a violation of the normal process and, in many
cases, state law. But there’s nothing that can stop a state legislature from appointing a
competing slate of electors and, once it does, Congress can determine which slate of
electors should be counted to determine who wins the presidency. A candidate’s
electors can even meet on their own authority to cast their votes for the candidate to
whom they’re pledged. It’s rare, but it’s happened before.
THE DISPUTED ELECTION OF 1876
It may seem implausible that Republican legislators would appoint fraudulent
electors, but it’s happened before. In 1876, the country faced a major constitutional
crisis after multiple states sent competing slates of electors to Congress.
That year, Florida, Louisiana, and South Carolina sent competing sets of Electoral
College votes to Congress, each with one set pledged to Republican Rutherford B.
Hayes, and the other to Democrat Samuel Tilden. Oregon also had a dispute over the
eligibility of one of its electors.
At the time, no law addressed how Congress should decide which slates to accept
and the country faced a real risk of not being able to choose a president. Following
protracted negotiations, which concluded only days before the Inauguration,
Congress reached a political compromise to determine the winner. Hayes was sworn
in as president in return for withdrawal of federal troops from the South – thus
effectively ending Reconstruction and ushering in a century of Jim Crow.
When we talk about Trump refusing to accept the results of the election, many people
imagine his refusing to leave the White House and being dragged out by the Secret
Service. That won’t happen. If Trump overturns the results of the election, his coup will
be spun as a fair and legitimate legal process.
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This is the nightmare scenario: Trump disrupts and delays the ballot count in order to
undermine public faith in the election and create a perception of chaos and fraud.
Republican state legislatures in key swing states like Michigan, Wisconsin, and
Pennsylvania – each of which has a Democratic governor and a Republican-led state
legislature – will declare that the election has been corrupted by fraud, that an accurate
ballot count is impossible, and that Trump is the rightful winner based on the partial
count. They’ll use this pretext to send a second, fraudulent slate of electors to
Congress.
To prevent this Republican strategy from succeeding, we have to understand the
system that it’s designed to exploit and five key dates: November 3, December 8,
December 14, January 6 and January 20. Those five dates and the 77 day period
between Election Day and the Inauguration could determine the future of our
democracy.
NOVEMBER 3 – ELECTION DAY
Unlike most recent presidential elections, we most likely won’t know the winner of the
2020 race on election night. The reason is simple: because dramatically more people
will vote by mail in this election as a result of the COVID-19 pandemic.
In recent presidential elections, it’s been possible to declare one of the candidates the
winner on election night because there haven’t been enough outstanding mail-in
ballots in battleground states to affect the outcome of the election.
This year, however, the mail-in ballots will be a large enough share of the total votes
that a candidate could win the Election Day count but lose by a large margin once all of
the ballots are counted.
And it’s almost certain that Biden will win a substantially larger share of mail-in ballots
than Trump.
Some key states, like Florida, begin counting mail-in ballots before November 3, and
many of these votes will already be tabulated by election night. In other key states, like
Pennsylvania and Wisconsin, election officials are prevented by law from even
beginning to process mail-in ballots before Election Day. Michigan can only start
preprocessing mail-in ballots 10 hours before Election Day.
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Assuming a close election, it’s likely that there will be enough mail-in ballots to make it
impossible to know the winner until they’re all counted in the days and weeks after
November 3, making it nearly impossible to declare a winner on election night.
Because the American electoral system is highly decentralized and run by state and
local authorities, this counting of votes takes place in thousands of different county
boards of elections offices across the country. This means that Republicans have
hundreds of opportunities to disrupt and delay the count in key states.
We are used to the scenario in which enough of the total ballots are counted on
election night in order to let us know who will win the presidential election. That may
not be true this year. Due to the unprecedented number of mail-in ballots, a full and fair
count of all votes may take up to several weeks or longer to complete. This unavoidable
time lag between when votes are cast and when we will know the results is one of the
key vulnerabilities that Trump and the Republicans will almost certainly exploit to
destroy confidence in the election and hold on to power.
THE “BLUE SHIFT”
In recent elections, Democrats have been far more likely than Republicans to vote by
mail. As a result, the vote count shifts in favor of Democratic candidates as mail-in
ballots are counted after Election Day. This phenomenon is called the “blue shift.”
For the 2020 election, many more Democrats than Republicans have requested
mail-in ballots, strongly indicating that Democrats will again be more likely to vote by
mail than Republicans. Consequently, in a close election, it’s likely that the November
3 count will show Trump leading – and that Biden will take the lead as mail-in ballots
are counted.
Trump has already been peddling a conspiracy theory that the blue shift is evidence
of non-existent voter fraud and that the election night returns – which are likely to
show him in the lead – should be certified and used to decide the election.
This narrative is central to his strategy for creating chaos and confusion after the
election and for attempting to overturn the results.
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DECEMBER 8 – SAFE HARBOR DEADLINE
Each state is required by federal law to resolve any disputes over which ballots qualify
and to finalize a ballot count by December 8 or risk not having its Electoral College
votes counted.
If a state hasn’t counted all ballots by this date and certified a winner, its Electoral
College votes are in danger of not being counted by Congress.
This date is referred to as the “safe harbor” deadline, meaning that if a state completes
its count and certifies its results by this date, its electoral votes are “safe” and will be
included in the tally that elects the president.
This deadline is a key pressure point that Trump and the Republicans can use to create
chaos and prevent every ballot from being fairly counted. Between Election Day and
December 8, we should expect a multi-state legal battle over which ballots to count
and which to throw out. In key swing states, it may even be possible for Trump’s
campaign to use legal and administrative challenges to delay the complete ballot count
until after the December 8 deadline.
DECEMBER 14 – THE ELECTORAL COLLEGE MEETS
Each state’s governor must certify the official results of their state’s election by
December 14. They do this by sending what is called a “certificate of ascertainment” to
Congress, notifying it of which candidate’s slate of electors will vote in the Electoral
College, a vote which takes place on this same day.
The winning slate of electors meets on December 14 in each individual state – not as a
collective national group. They vote for the presidential candidate they are pledged to,
and they send a record of their vote to Congress.
If Republicans appoint a competing, fraudulent slate of Trump electors, those electors
will meet separately and vote on this day, as well. At that point, the fight moves to
Congress, which ultimately chooses the president.
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FAITHLESS ELECTORS
One subject that has received a lot of attention is so-called “faithless electors.” These
are people who pledge themselves to vote for Biden or Trump in the Electoral College
but change their minds and cast a different vote. The Supreme Court recently ruled
that states can prohibit electors from doing this, although not all states have laws
that do prohibit it. Pennsylvania, for example, allows faithless electors. Still, faithless
electors are very rare and it’s extremely unlikely that they will play a decisive role in
the 2020 election. Other dangers to the vote counting itself and the Electoral College
process are far more likely to be determinative.
JANUARY 6 – CONGRESS COUNTS ELECTORAL COLLEGE VOTES
The vote of the Electoral College is not the moment either Biden or Trump will legally
win the presidency. All electoral votes must still be accepted as qualifying votes and
then counted.
In our Constitution, this power belongs to the Congress. On January 6, 2021, the new
Congress elected in November 2020 – not the current Congress – will hold a joint
session of the House of Representatives and the Senate in the House Chamber.
During this session, Congress officially accepts the Electoral College votes of each state
and counts them. Under ordinary circumstances, this is a ceremonial event in which the
already-settled results of the November election are made official.
But let us be clear: there is nothing ceremonial about the power being exercised on this
date. It is the result of this vote count, and no other, that determines who will be the
next president.
Congress – not voters, not county election officials, not governors and legislatures –
ultimately chooses the president. If the election is disputed, the final battle will be
fought in Congress.
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HOW DOES CONGRESS RESOLVE DISPUTES OVER
ELECTORAL COLLEGE VOTES?
Congress chooses the president by counting Electoral College votes and determining
who won the election.
Normally this is uncontroversial. There hasn’t been a battle in Congress to decide the
outcome of a presidential election in over a century – but it has happened.
The Constitution provides no guidance in a situation where Congress is faced with
competing slates of electors from a single state. The Twelfth Amendment is the only
part of the Constitution that addresses the counting of Electoral College votes. What
it says is quite limited: “The President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and the votes shall
then be counted[.]”
After the contested 1876 election, Congress passed the Electoral Count Act which
was intended to create a process for settling disputes over competing slates of
electors.
Unfortunately, the law is famously convoluted and virtually untested. Legal scholars
disagree on how to interpret it and it has never been invoked to settle a disputed
election. Some legal scholars even argue that it is unenforceable or unconstitutional.
So how does Congress resolve disputes over Electoral College votes? The answer is:
we just don’t know, but it’s likely that politics and public perception will play a key
role in shaping how Congress and the Supreme Court interpret the Electoral Count
Act and the Twelfth Amendment.
JANUARY 20 – INAUGURATION DAY
At noon on January 20, 2021, the next president will be sworn into office. If Congress
hasn’t finished counting Electoral College votes, the Speaker of the House – Nancy
Pelosi – will be sworn in as the acting president.
If it is not possible for the rightfully elected president to be sworn in on January 20, and
faced with an alternative of allowing Trump to win an illegitimate victory, Democrats
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should ensure that the Electoral College count cannot be completed by January 20 so
that Nancy Pelosi becomes president.
Trump must not be allowed to win an illegitimate victory under any circumstances. To
stop him, Democrats will have to be prepared to go as far as Republicans in casting
aside political norms and playing political hardball – something they’ve failed repeatedly
to do when it matters most.
Over the last decade, Republicans in Congress, led by Senate Majority Leader Mitch
McConnell, have effectively shut down the legislative branch. While Democrats have
attempted to negotiate bipartisan compromises, Republicans have shut down the
government, blocked virtually every piece of legislation Democrats have proposed,
rammed through massive tax cuts for millionaires and billionaires, packed the federal
courts with ultra-conservative judges, and even denied President Obama the
opportunity to appoint a justice to the Supreme Court in 2016.
Republicans have shown that they’re more willing to be ruthless, to play hardball, to
violate political norms to win, and to take advantage of Democrats when they try to
negotiate in good faith.
We don’t have to speculate about how this dynamic would play out if Trump tries to
steal the 2020 election. It’s happened before, in Florida in 2000, when George W. Bush
stole the presidential election from Al Gore.
Before we move on to describe in detail what Trump could do to steal the election, we
want to pause and draw some lessons from recent history.
FLORIDA 2000 – A CAUTIONARY TALE
The outcome of the presidential election in 2000 hinged on Florida. We now know that
Al Gore won more votes in Florida than George W. Bush did. If all of the votes had been
counted, Al Gore would have been sworn in as our 43rd president.
But that’s not what happened. Bush’s team waged a scorched-earth campaign to
overturn the will of Florida voters by preventing all of Gore’s voters’ ballots from being
counted – and, by doing so, stole the 2000 election.
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The day after the 2000 election, Florida election officials announced that Bush’s
razor-thin margin of victory was small enough to trigger an automatic machine recount,
which further narrowed his lead to a mere 327 votes.
Gore’s campaign requested a manual recount in four counties where over 170,000
ballots couldn’t be read by machine. Bush’s campaign sued to stop the manual recount.
Gore’s campaign put its faith in the legal system and urged Democratic organizations
not to organize mass protests because Gore feared it would undermine public faith in
the legal system.
Bush’s campaign, on the other hand, knew that it was in a battle of political will and
public perception, not a legal battle. It launched a national public relations campaign to
paint Gore as a sore loser. The Republican Party even flew in paid Republican
operatives to a violent riot at the Miami Dade Board of Elections – an event now
referred to as the “Brooks Brothers Riot” – which is widely seen as a pivotal moment in
publicly discrediting the recount.
On December 12, the Supreme Court halted the recount, ensuring that Bush retained
his narrow lead. The next day, intent on maintaining national unity following a
bitterly-contested election, Gore conceded.
It didn’t have to be this way. Many of Gore’s advisors, including his top lawyer Ron
Klain, wanted to convene Gore’s electors to cast rival votes to Bush’s and take the fight
to Congress.
We don’t know what would have happened if Gore had matched Bush’s determination
to win and willingness to take the fight to the streets and to Congress. What we do
know is that Gore fought at a major disadvantage because he valued national unity
and political norms over the voters who cast a ballot for the Democratic ticket
– voters whose families would bear the brunt of the worst abuses of a Bush
administration, from austerity at home to wars of choice abroad. Meanwhile, Bush
fought dirty to win, and his supporters were rewarded with tax cuts, deregulation, and
corporate welfare.
There’s no limit to what Trump will do to win. If Democrats aren’t willing and ready to
go as far as Trump will to win, they are doomed to repeat the mistakes of the past and
suffer the very real consequences.
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II.
Understanding the Threat: How Trump Could
Disrupt the Election
“[T]he most direct threat to the electoral process now comes from the president
of the United States himself.” – David E. Sanger, Tuesday’s Debate Made Clear
the Gravest Threat to the Election: The President Himself, The New York Times,
September 30th, 2020
If Trump and the Republicans attempt to overturn the results of the election, we know
what playbook they will use:
1. Make it harder for Democrats to vote, create violence at the polls, and intimidate
voters.
2. Prevent Democratic votes in swing states, especially mail-in ballots, from being
fully and accurately counted. They can do this by exploiting legal and
administrative processes to challenge ballots, delaying the count past the
December 8 safe harbor deadline, and even physically disrupting the vote count.
3. Convince Republican legislators to overturn the results of the election by
appointing fraudulent competing slates of Trump electors in order to throw the
election to Congress.
To stop this plan, we need to protest by the millions, but that won’t be enough. Joe
Biden, along with Democratic elected officials in swing states and Congress, will need
to play brutal hardball. If they flinch, they’ll lose.
There are three steps Democrats must take to win:
1. Democrats must fight to ensure that every ballot is accurately counted by
December 8. Unless and until a fair and complete vote count shows that Biden
lost the election, he must not concede to Trump.
2. If Republican legislators try to stop Biden from winning a state’s Electoral
College votes by appointing fraudulent Trump electors, the Democratic governor
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in that state must appoint a competing slate of Biden electors, even if
Republicans succeed in preventing all of the ballots from being counted and
Trump has a lead based on the partial count.
3. Democrats in Congress must use every procedural and legal means available to
ensure that Biden wins the Electoral College vote count. If that is not possible,
they must ensure there is a deadlock and the Speaker of the House becomes
president on January 20.
The following section describes what the Trump campaign and its allies could do at
each step of the process between Election Day and the Inauguration to overturn the
results of the election, and what Democrats must do at each stage to fight back.
This scenario will play out in one or a handful of swing states that, individually or in
combination, will decide which candidate wins the election.
Throughout this section, we will assume that the contested states that will decide the
election are some combination of Pennsylvania, Michigan, and Wisconsin.
All three states have a Democratic governor, who is responsible for reporting to
Congress which candidate won the state. Pennsylvania and Michigan have Democratic
Secretaries of State, who are responsible for compiling and reporting the final vote
count. Wisconsin has a six-member Elections Commission that is split 3-3 by party and
is responsible for compiling and reporting the final vote count. Each state also has a
Republican-controlled legislature that, for Trump to overturn the results of the election,
would have to vote to appoint fraudulent Trump electors before December 14.
In the sections below, when we refer to “vote counts” or “the popular vote,” we mean
the voting results in contested swing states, not the national popular vote. As he did in
2016, Trump will almost certainly lose the national popular vote, and he’ll again likely
blame non-existent voter fraud, but the national popular vote is immaterial to who wins
the election. All of the action that matters will happen in a handful of contested swing
states.
NOVEMBER 3: VOTER SUPPRESSION
Republican efforts to suppress the vote are nothing new. A cornerstone of the
Republican Party’s electoral strategy is to make it harder for people of color, young
people, and poor people to vote. They’ve done this by passing strict voter ID laws,
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closing polling locations, purging voter rolls, erecting barriers to voter registration,
stripping people with felony convictions of their right to vote, and gerrymandering
legislative and congressional districts.
Trump, however, has supercharged the Republicans’ voter suppression strategy. In
2016, Trump’s campaign ran a massive digital misinformation and disinformation
program intended to convince Democrats not to vote. Since COVID-19, Trump and the
Republican Party have launched a scorched earth legal campaign to block the
expansion of mail-in voting.
Meanwhile, Trump’s campaign is recruiting over 50,000 “poll watchers” – likely
including people drawn from the military and law enforcement – to intimidate voters at
the polls. In the first presidential debate, Trump even called on his supporters “to go
into the polls and watch very carefully.”
While we can’t predict the scale of disruption that right-wing vigilante “poll watchers”
will cause at the polls or while states are counting ballots, we should expect many of
them to be armed and to engage in illegal voter intimidation.
Again, Republican voter suppression is not new, even if the Trump campaign is taking it
to new levels. Voter suppression can chip away at Biden’s margin of victory, but it can’t
on its own reverse the results of an election. Democrats can overwhelm voter
suppression with massive voter turnout. We do it in elections all the time.
But what chaos and violence at the polls can do is begin to create a pretext for
Republican legislators to appoint fraudulent electors. Actually suppressing votes is a
secondary goal. The primary goal is to undermine public faith in the election.
Trump supporters will instigate chaos and violence at the polls. Trump and his allies will
immediately claim that it’s actually “Black Lives Matter,” “antifa,” or some other
convenient scapegoat that is instigating violence, and that his supporters are acting in
self-defense. Right-wing media will amplify these assertions while mainstream media
draws false equivalencies between right-wing militias and progressive protesters.
Chaos favors Trump, even if his supporters are to blame. Anything that casts doubt
on the integrity of the election is a step towards justifying intervention by
Republican legislators. To counter this strategy, we must ensure that voter turnout is
historically high and maintain calm in the face of right-wing intimidation.
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ACTION STEPS BEFORE THE ELECTION
For Democratic officials everywhere:
—Prepare the public: Publicly acknowledge the danger that Trump and the
Republicans will try to overturn the results of the election. Speak with your
constituents, members of the media, other government officials, and your staff about
the possibility of a contested election. Your voice carries further than most, and you
have a responsibility to psychologically prepare people in your community for a
constitutional crisis. Encourage people to vote no matter what. Massive voter turnout
is the best way to avert a crisis.
—Pledge to defend the Constitution: Publicly pledge to use all of the powers of your
office to protect ballots and protesters from right-wing extremists and from illegal
action by the federal government.
—Pressure Republicans: Make your Republican colleagues take sides publicly.
Republicans should state plainly that every ballot should be counted, that mail-in
ballots are safe and secure, that concerns about fraud are unwarranted, and that
Republican legislatures in swing states should not intervene in the election. Paying lip
service to a “peaceful transition of power” isn’t enough. Republicans must make
specific, concrete commitments to ensuring that this is a fair and free election.
For the rest of us:
—Vote: Vote however is most convenient for you as early as possible. Encourage and
help your neighbors, friends, and members of your community to vote. The best and
only antidote to the first phase of Trump’s campaign to disrupt the 2020 election is
for us to vote in massive numbers.
—Volunteer as a poll worker: The COVID-19 pandemic may make it harder to fully
staff the polls with volunteers. If you can do so safely, volunteer to become a poll
worker.
—Volunteer: Support Get Out The Vote and election protection efforts in all swing
states. If Biden wins in a landslide, Trump won’t be able to overturn the results of the
election.
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—Remain calm and challenge misinformation and disinformation: Republicans are
spreading lies and conspiracy theories about voter fraud and barriers to voting. Only
repeat information about voting that comes from credible sources.
—Prepare for a contested election: Share this document with your friends, family,
and people in your community; read and discuss it together.
DECEMBER 8: DISRUPTING THE BALLOT COUNT
“The Florida Election should be called in favor of Rick Scott and Ron DeSantis in
that large numbers of new ballots showed up out of nowhere, and many ballots
are missing or forged. An honest vote count is no longer possible — ballots
massively infected. Must go with Election Night!” – Donald Trump, November 12,
2018
“The only way they can take this election away from us is if this is a rigged
election.” – Donald Trump, August 24, 2020
Trump is already accusing Democrats of rigging the election. He has repeatedly said
that the only way he will lose is if Democrats commit massive voter fraud with mail-in
ballots, and that he may not accept election results that show him losing to Biden
because, he says, they will be fraudulent.
This is all a ridiculous conspiracy theory and a transparent attempt to undermine faith in
the election, but if Trump convinces enough people that it’s true he will create an
opening for Republican state legislatures to steal the election.
The key period during which Trump can undermine public faith in the integrity of the
election is between Election Day and December 8 while the ballots are being counted.
December 8 is the deadline for states to certify the results of the election. The more
chaos Trump can create while the ballots are being counted the more likely people are
to believe that the results are fraudulent.
In a close election, Trump may lead Biden in must-win swing states on election night
because so many Democrats are voting by mail and mail-in ballots will take longer to
count in key swing states. Only after mail-in ballots have been counted in the following
days and weeks will it become clear that Biden won the battleground states.
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If the election night totals show Trump in the lead because Democratic mail-in ballots
haven’t been counted yet, he will likely demand that those results be certified and that
the election be called in his favor. As mail-in ballots are counted and Biden takes the
lead, Trump will accuse Democrats of fraud and double down on his demand for the
election night results to be certified.
This is exactly what Trump did in 2018 during a statewide recount in Florida. As the
recount was underway, Trump called for election officials to certify Ron DeSantis and
Rick Scott as the winners in the gubernatorial and senate races because they each held
a lead over their Democratic opponents on election night.
During the ballot count, Trump will have two goals. Achieving either one will help him
cast doubt on Joe Biden’s victory:
First, create delays and prevent as many Democratic voters’ ballots from being
counted before the December 8 deadline as possible. If he does this on a large
enough scale, the partial count on December 8 may even show him ahead in
some states that he actually lost to Biden. This is what George W. Bush did in
Florida in 2000 and, by doing so, he won the electoral college vote.
Second, create a perception of chaos to delegitimize the election results. If he
fails to stop Democratic voters’ ballots from being counted before the deadline
he can still kick up enough dust to create a perception that the final ballot count
is illegitimate and fraudulent.
Unfortunately, there’s a lot that Trump and his allies can do to disrupt and delay the
ballot count:
● Launch an onslaught of legal and administrative challenges to disqualify mail-in
ballots and demanding recounts.
● Convince election administrators in Republican-dominated counties to
prematurely halt their ballot count.
● Order the Department of Justice, US Post Office, or other federal agencies to
open investigations into election administrators, Democratic organizations, and
elected officials. Trump may even order federal agents to halt ballot counts or
seize ballots.
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● Encourage his supporters to organize armed protests to intimidate election
administrators or directly disrupt ballot counts.
● Declare martial law and deploy federal troops in response to protests.
Some of these actions are illegal, but it may not matter to Trump or to those who
enable him.
There will also be situations where administrative barriers create delays in Trump’s
favor. For example, in response to the COVID-19 pandemic, Pennsylvania changed its
voting rules and adopted a process for counting a large number of paper ballots. As a
result, the state took several weeks to count the 2020 primary ballots. It may simply not
be possible for Pennsylvania to complete a presidential ballot count before the safe
harbor deadline because the state has been prevented by Republican lawsuits from
beginning the count of paper ballots before November 3. If a ballot isn’t counted before
December 8, there’s no do-over, even if the delay was a result of illegal action by the
Trump campaign.
We want to be clear: What matters most in this period may not be how many ballots
are counted, but public perception of the integrity of the election . Republican
legislators can send slates of electors to Congress even if Trump loses the popular vote
in their state. And a state’s electors can even meet on their own and send a record of
their votes to Congress independent of the governor or state legislature.
Winning the ballot count by preventing Democrats’ votes from being counted is a
political tactic not a legal strategy . Public perception of who won a given state may
matter more to Republicans in a power struggle over elector slates than who actually
won the December 8 ballot count.
If Trump loses a complete ballot count but the public believes that he lost because of
fraud, he has achieved his goals.
If, on the other hand, Trump wins an illegitimate and incomplete ballot count, but the
public knows that Trump cheated to take the lead, we still have a chance to stop him.
Republican legislators will be far less likely to intervene in the election if a huge majority
of Americans understand that Trump lost and is trying to steal the election.
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Even federal judges and the Supreme Court are sensitive to public pressure, and if it is
clear that the country is unified in outrage at what Trump is doing it’s unlikely that even
conservative judges will save his doomed campaign.
DECEMBER 8 THROUGH DECEMBER 14: THE ELECTORAL COLLEGE
By December 8, all states are required to resolve disputes over which ballots to count
and to complete their ballot count or risk having their Electoral College votes not
counted by Congress, so we should expect a statewide vote total to be certified in
every state by this date. States are allowed to complete their counts before this date,
but December 8 is the deadline to ensure that their Electoral College votes are counted.
The Electoral College meets to vote on December 14. Before that happens, the
governor of each state must notify Congress of which candidate won the state.
Hopefully, every state will have finished a complete and accurate count of every ballot
by December 8, but we have to be prepared for a scenario in which some states only
partially count their ballots because Republicans succeed in delaying the disrupting the
count.
If most of the ballots are counted and Biden holds the lead on December 8, we can
assume that Democratic governors will follow the rules and appoint Biden’s electors.
If, on the other hand, the counts have been sufficiently disrupted and Trump holds an
illegitimate lead in the count at this date, Republicans will pressure the Democratic
governor to appoint Trump’s electors to the Electoral College.
Even Democratic governors may be tempted to appoint Trump’s electors if he holds
an illegitimate lead in the count on December 8. We can’t let that happen. In any fair
game, cheating disqualifies you. Our elections should operate on the same standard.
If Trump takes the lead by preventing all of Biden’s voters’ ballots from being counted,
the Democratic governor in Pennsylvania, Michigan and/or Wisconsin must appoint
Biden’s electors to the Electoral College. If they cave to Republican pressure not to, we
lose and Trump gets to steal the election.
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HOW WILL WE KNOW BIDEN WON IF ALL THE VOTES AREN’T COUNTED?
Pre-election polls have consistently shown Biden in the lead in key swing states, so
it’s very unlikely that Trump will win a majority of votes in these unless he cheats and
stops a large number of Democratic voters’ ballots from being counted. Pre-election
polls shouldn’t be used to decide the winner of the election – that responsibility is
reserved for each state’s governor and, ultimately, Congress – but if Trump prevents
us from counting all of the ballots, the pre-election polls can give us some indication
of whether Trump won a state legitimately or through fraud.
Further, if Trump succeeds in preventing all of the ballots from being counted before
December 8, Democrats should demand that the count continue after the safe harbor
deadline. Ballots counted after December 8 may not be included in the official
statewide count, but even a complete, unofficial record proving that Joe Biden won
can be taken into account by Congress when it counts Electoral College votes on
January 6.
However, if the count is never completed, the uncomfortable truth is that we won’t be
able to prove for certain that Biden won. There are two reasons why Democratic
governors should nonetheless move swiftly to appoint Democratic electors if Trump
disrupts the ballot count:
First, appointing electors doesn’t mean that Biden will be awarded the state’s
electoral college votes when the votes are counted. It is up to Congress to count
votes and make the final decision about who won the state. Even if it is not yet clear
which candidate won the majority of votes in a contested battleground state, sending
a slate of Biden electors to Congress gives Congress the option to determine that
Biden was the valid winner.
Appointing Biden’s electors even though it is not yet certain that Biden won is an
unusual action to take. But it is fully justified and necessary if the count hasn’t been
completed because Trump and his allies deliberately prevented the ballots from being
counted. In that scenario the only responsible thing for a governor to do is give
Congress more time to consider which candidate is the rightful winner by giving it the
option to award the state’s electoral votes to Biden.
Second, if Trump disrupts the election, if he takes deliberate actions to prevent
everyone’s ballots from being counted and every voice from being heard, and he
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does it because he wants to prevent Joe Biden from winning the election, he is
effectively forfeiting his right to be awarded an Electoral College majority by
Congress.
Even brutal dictatorships hold sham elections and report vote counts that purportedly
show the dictator winning a majority of the votes. That doesn’t mean that the dictator
is democratically elected. The only ballot count that counts is one that’s fair and free.
If it becomes impossible to hold a fair and free election because Trump disrupts the
ballot count, Democrats must take every available action to prevent him from
usurping the presidency.
American democracy can only survive if our leaders want it to. A presidential
candidate who takes premeditated action to usurp the presidency, circumvent the will
of the people, undermine our institutions, and short circuit democratic processes
ceases to be a legitimate presidential candidate and becomes a threat to the
American people. Such a candidate cannot be allowed to win.
Trump’s goal in this phase is to ensure that, no matter how many votes he wins or
which ballots are counted, electors meet on December 14, vote for him, and send a
record of their votes to Congress.
This phase of the fight is likely to be confusing, but the most important thing to
remember is that Congress makes the final decision about which Electoral College
votes to count and which ones to discard . The Constitution gives Congress the power
to decide if a slate of electors was legally or illegally appointed.
There are three important scenarios that may result in Congress needing to use its
power to settle disputes about electors:
First, a governor may not award the state’s electors to the candidate who won
the most votes. That governor may act unilaterally to send a different candidate’s
slate of electors to Congress.
Second, no matter who wins the election or what the governor does, the state
legislature may convene and vote to appoint a second, competing slate of
electors, who will then vote for the candidate to which they are pledged.
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Third, a given candidate’s electors may meet without being authorized by either
the governor or legislature, vote, and send a record of their vote to Congress,
even if their candidate lost the election.
To be very clear: These actions may be illegal or merely outrageous and unfair, but
that doesn’t mean they won’t happen. All three of these things happened before. In
these scenarios, majorities in Congress can act decisively and decide which Electoral
College votes to count.
The specific trigger for a constitutional crisis is if, in a state that Biden wins, Trump’s
electors – likely illegally appointed by the state legislature – meet, vote for Trump,
and send a record of their votes to Congress.
This may happen after the Democratic governors in contested states certify that Biden
won the election, or Trump and his allies may act preemptively. In either case, once two
groups of electors have met and voted in the same state on December 14, the battle
moves to Congress, which makes the final determination of who the next president is.
ACTION STEPS BETWEEN NOVEMBER 3 AND DECEMBER 14
For Democratic officials everywhere:
—Biden must not concede: Unless it is clear that Biden lost a fair election,
Democratic officials must publicly call on Biden not to concede. If Biden concedes, we
all lose and millions of voters’ voices will never be heard.
—Declare victory: Unless it’s clear that Biden lost, immediately declare that Biden
will be the winner once all of the ballots are counted. Elected officials should also
advocate for every vote to be counted, but we will be at a major disadvantage if
Trump declares victory while we say it’s not clear who won or that we should let the
process play out. We have to say that Biden is the winner and that the final count will
prove that. All the polls and what we know about the blue shift indicate Biden will be
the eventual winner of a fair vote count, even if Trump leads in the election night
count. It is essential Trump not be allowed to entrench the narrative that he won
while Biden and his allies wait for the process to play out.
—Call out Republican fraud: Cry foul as soon as Trump or the Republicans attempt
to disrupt the vote count and appoint fraudulent electors. Explain that what Trump
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and his allies are doing is an attempt to steal the election.
—Protect ballots: Democrats must do everything to the limit of their power to ensure
a full and accurate count of all ballots, in-person and mail-in, including physically
preventing right-wing militias from halting vote counting, and continuing any
Republican-delayed vote counts after December 8th until they are complete.
—Protect the First Amendment: Democrats must defend the rights of
pro-democracy protesters in the streets and also in and around government
buildings. This includes not prosecuting nonviolent protesters and/or bringing
charges against federal agents who break local law by harming or kidnapping
protestors. Join protests and make your presence known by alerting reporters and
posting pictures and videos on your social media accounts.
—Rally the public: Democrats must say clearly that this battle will be unlike anything
we have seen in our lifetimes and that extraordinary measures may be required to
prevent authoritarian rule.
—Speak out against Republican election fraud: If Trump succeeds in preventing all
of the ballots from being counted before the December 8 deadline and an incomplete
vote count shows him leading Biden, Democrats must make it clear that Trump didn’t
win and that he committed fraud. They must explain to the American people that
committing fraud disqualifies him from winning, and that the only way to honor the
will of the people is to appoint Biden electors even if a complete ballot count is no
longer possible.
For Democratic officials in swing states:
—Count the ballots: Demand that the ballot count be completed even if it must
continue after December 8 so that Congress can take the complete results of the
election into consideration when deciding which slates of electors to count in January.
The American people deserve to know who won every single state and by how many
votes.
—Protect ballots: Democrats must do everything to the limit of their power to ensure
a full and accurate count of all ballots, in-person and mail-in, including physically
preventing right-wing militias from halting vote counting, and continuing any
Republican-delayed vote counts after December 8 until they are complete.
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—Governors: If it becomes impossible to complete a ballot count by December 8 or
Republican legislators appoint their own slates of electors, governors must appoint a
Biden slate of electors so that Congress has the option of giving the state’s electoral
college votes to Biden.
—State legislators: Use every procedural tactic available to stop Republicans from
voting to appoint Trump electors. If it’s not possible to stop them, try to delay votes
until the December 14 deadline has passed. If you can’t delay the vote past the
deadline, shut down the chambers by assisting nonviolent protesters in taking over
the building. If you can’t stop the vote, boycott it to deny quorum or, at the very least,
signal the vote isn’t legitimate.
—Investigations: State and local authorities should open investigations into
right-wing militias and illegal actions by Republicans to suppress the vote and
prevent ballots from being counted.
For people everywhere:
—Protest: Don’t wait for advocacy groups, Biden’s campaign, or the Democratic
Party to take the lead. Organize protests in your community immediately. Prepare
yourself for the long haul: sustained, daily pressure will be required until Trump
publicly concedes or leaves office
—Organize: Connect with all groups you are part of – political, civic, professional,
religious, work-based – and implore them to join you in public protest. We need
participation by people from all walks of life if we want to demonstrate that the public
will not tolerate Trump’s fraud.
—Hold teach-ins / political education: Use this guide to educate others in the
community about how the process works between November 3 and January 20,
where the levers of power are, and how everyone can play a role in stopping Trump
and Republicans from stealing the election.
—Local elected officials: Urge your city and county governments to pass a resolution
denouncing Trump and the Republicans for attempting to overturn the results of the
election. We need local elected officials in every community in the country to express
solidarity with protesters.
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—Congress: Urge your Representative and Senators to open investigations into
Trump and the Republicans’ efforts to prevent every vote from being counted.
—Law enforcement: Call your police chief, county sheriff, and local National Guard
Bureau and urge them to protect protesters’ First Amendment rights. Specific things
you can ask for include: protect protesters from right-wing militias and give them
medical care if they’re injured; do not use chemical weapons (e.g., tear gas, pepper
spray) rubber bullets, or crowd control measures intended to induce pain or
discomfort; do not arrest nonviolent protesters; do not use surveillance technology to
identify protest participants or to spy on organizers; and do not open investigations
into protest leaders.
—District Attorney / County Prosecutor: Your district attorney or county prosecutor
decides who to charge with a crime, what to charge them with, what plea offers to
make, and what sentence to seek. Prosecutors have the power to decline to
prosecute any protester and to prosecute federal agents who break the law. Call
them and urge them to do so.
—Boards of Elections: Call your local board of elections and urge them to make a
complete, impartial, and timely count of all ballots cast in the election.
—Federal Courts: Call the federal district and circuit courts that serve your
community, as well as the Supreme Court. Urge them to respect a fair and impartial
process of counting ballots and not to intervene on Trump’s behalf.
For people in contested swing states:
—Your governor: If Republicans make it impossible to count every ballot or move to
appoint illegitimate electors, call on your governor to honor the will of the people by
sending a Biden slate of electors to Congress.
—Your state legislators: Call your state legislators and tell them not to appoint
fraudulent electors to the Electoral College.
—Write to your local paper: Send a letter to the editor of your local paper calling for
every ballot to be counted and denouncing Republican efforts to disrupt and delay
the count.
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—Local government: Urge your city and county governments to pass a resolution
calling for every ballot to be counted and denouncing Republican efforts to disrupt
and delay the count.
—Board of elections: Organize rallies at your local board of elections and call on
election officials to count every ballot. If there is a process to do so, volunteer to help
“cure ballots” which often involves collecting additional information from voters who
were forced to vote provisionally or whose vote-by-mail ballots need additional
verification.
—Mayor and city council members: Ask your local elected officials to take their case
to the local media, appearing on television, radio and in print declaring victory for Joe
Biden and explain how Trump and Republicans are delaying the count in order to try
and steal the election.
JANUARY 6: CONGRESS AND THE ELECTORAL COLLEGE COUNT
On January 3, each newly elected or reelected member of the Senate and House of
Representatives is sworn in and seated, and the 117th Congress begins.
It’s the 117th Congress, not the current Congress, which meets on January 6 in a joint
session held in the House chamber to count the Electoral College votes and choose the
next president. The current vice president – Mike Pence – presides over this joint
session.
The best case scenario is that the count in Congress is largely ceremonial, as it has
been in presidential elections going back for over a century, and the candidate who
legitimately won the election is awarded the most Electoral College votes.
But we must prepare for other scenarios, including:
● A Republican state legislature sends a competing slate of electors to Congress,
forcing Congress to choose between the Democratic governor’s slate of electors
and the Republican legislature’s slate of electors – or to discard both of them.
● A Republican governor in a state with a Republican legislature – for example,
Florida – appoints a slate of Trump electors even though Biden won the state’s
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popular vote. Biden’s electors in that state respond by meeting, voting for Biden,
and sending a record of their vote to Congress. Congress must then decide
whether to accept one of the slates or discard both of them.
● In a state that Biden won and in which state officials, including the legislature,
certify Biden as the winner through a legitimate process, Trump’s electors meet,
vote for Trump, and send a record of their vote to Congress. Congress must then
decide whether to accept one of the slates or discard both of them.
● In any of the scenarios above, Mike Pence asserts that he alone has the authority
to determine which candidate won the most Electoral College votes and asserts
that he and Trump are the winners.
● The Supreme Court agrees to consider legal challenges to the validity of the
“certificate of ascertainment” submitted by Democratic governors.
● The Supreme Court agrees to consider legal challenges to the Electoral Count
Act or to any other process Congress uses to resolve a dispute over electors.
● A Republican-controlled Senate votes to award the majority of electors to Trump
while the Democratic controlled House votes to award the majority of electors to
Biden.
The Constitution doesn’t prescribe a process for resolving a dispute over electors. The
Electoral Count Act of 1887 offers some guidance but legal scholars disagree about
how to interpret it. In the past, we’ve counted on respect for institutions and precedent
to navigate around issues of governance not clearly delineated in the Constitution. But
we cannot count on that with Trump. For example, Trump and his administration have
flat out refused to comply with subpoenas from Congress. He’s even promised to
pardon officials who break the law under his orders.
THE ELECTORAL COUNT ACT OF 1887
After the contested 1876 election, Congress passed a law called the Electoral Count
Act which was intended to create a clear process for resolving disputes over electors.
Unfortunately, the law is famously vague, convoluted, and difficult to interpret.
We aren’t legal scholars, and it is far beyond the scope of this guide to fully
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summarize the legal debates about the Electoral Count Act. For our purposes, there
are several things worth noting:
First , the Electoral Count Act is virtually untested in court and has never been used to
resolve a contested election.
Second , it’s unclear how or whether the Supreme Court would intervene to interpret
the law.
Third , some scholars argue that the law itself is unconstitutional or unenforceable.
Fourth , if there is a dispute over electors, each chamber of Congress meets
separately to vote to determine what to do with the competing slates of electors.
If both chambers agree, it’s generally accepted that their concurring decision will
determine how to count the votes in question. This makes it much more likely that
Democrats will win a congressional fight if they win back a majority in the Senate
and, as they seem likely to do, hold their majority in the House.
If the chambers disagree, most scholars argue that electoral votes certified by a
state’s governor should be counted, and the competing votes should be discarded. In
a fight over electors, it’s most likely that a Democratic governor will have appointed
Biden’s electors, so this interpretation is most likely to favor Biden.
Some scholars, however, argue that both slates should be discarded. If that happens,
it’s unclear whether the total number of electoral college votes needed to win is
reduced from 270 – or if it’s still necessary to get 270 to win.
Fifth , how the Electoral Count Act is used to resolve a contested election will be
inherently political.
The lack of legal or congressional precedent leaves a lot of room for Congress and the
Supreme Court to interpret the law in a way that responds to the mood of the
country.
If public opinion is overwhelmingly on our side, it’s more likely that the law will be
interpreted in a way that prevents Trump from stealing the election.
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A law like the Electoral Count Act of 1887 can only settle a dispute over an electoral
outcome if all parties agree to act in good faith, observe norms, and follow precedent. In
a contested election, Republicans in Congress won’t give a thought to the valid
interpretation of the law or norms of Congressional conduct.
Trump and his Republican allies have shown that they are willing to exploit not just
procedures but the law itself for political outcomes. If they have succeeded in keeping
the outcome of the election in dispute on January 6, they will advocate whichever
farfetched and unprecedented interpretation of the Constitution and federal law makes
it most likely that Congress will count Trump’s Electoral College votes and discard
Biden’s.
Democrats and their allies prefer to hold themselves above the political fray in
situations like this, delegating the fight to their legal teams while making proclamations
about letting the process work. If Democrats act like legal scholars while Republicans
fight a guerilla war to make Trump the president at any cost, Democrats will risk
losing a presidency despite winning the majority of electoral votes at the polls.
WHAT ABOUT THE SUPREME COURT?
No one knows if the Supreme Court would intervene in a Congressional fight over
Electoral College votes, but it’s not inconceivable that it would. In fact, the president
and his allies have repeatedly invoked this scenario in arguing that the successor of
late Associate Justice Ruth Bader Ginsburg must be confirmed before Election Day,
There’s a misconception that the court makes objective decisions about the law. This
is wrong. The court has become increasingly ideologically divided but at the same
time sensitive to public perception and pressure, and its decisions can be shaped by
public opinion.
The Bush v. Gore decision badly damaged its reputation and undermined the
legitimacy of the court. If the Supreme Court intervenes in the 2020 election, we need
to put overwhelming public pressure on it not to rule on Trump’s behalf.
If it does, Democrats must be prepared to adapt their strategy, abandon its
institutionalist preference, and continue the fight to prevent Trump from becoming
president, even if it means going public with growing concerns about the court’s
legitimacy.
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The court can’t give legitimacy to an illegal effort to usurp the presidency, especially if
the two, possibly three, justices that Trump appointed to the court participate in the
ruling. No matter what, we have to continue to fight, even if it leads to a high stakes
game of chicken between the three co-equal branches of government. Democrats in
Congress cannot be the first to blink.
Democrats have to understand two things to win a fight over electors in Congress:
First, Republicans will not compromise, act in good faith, give any consideration to
national unity or the stability of the country, or attempt to follow the law. Their only
objective will be to win at any cost.
Second, in a battle of political will and raw power, whoever rallies the American
people to their side will have a huge advantage in how the inside game plays out. If
tens of millions of Americans protest, strike, commit mass civil disobedience, and
demand an end to the Trump regime, Republicans will have a much harder time
exploiting arcane processes to make Trump president, either through a vote in
Congress or a ruling by the Supreme Court.
The legitimacy of a democracy rests on the consent of the governed. If Trump and the
Republicans try to destroy democracy and reorganize our government as an autocracy,
our job is to withdraw that consent and shut the country down. We have to make it
clear that if Trump usurps the presidency, he won’t be able to govern or remain in office
for long.
Joe Biden and Democrats in Congress must commit themselves to this strategy and
rally the American people. If, like Gore in 2000, they urge the public to stand down and
wait for the legal process to play out, Trump will have the advantage. We can’t treat a
Congressional fight over which Electoral College votes to count like a legitimate
legal process – it’s a coup and we must act accordingly.
Democrats in Congress must use every constitutional, procedural, and political means
necessary to delegitimize Trump’s attempt to usurp the presidency, up to and including
voting in unison against any Republican effort to count Trump’s Electoral College votes,
ordering the Sergeant at Arms remove Republicans from the House chamber,
boycotting the Electoral College count, and staging protests inside of the Capitol to
make it physically impossible for Congress to meet.
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If Democrats in Congress can’t win the fight to count Biden’s lawfully-chosen electors,
then its strategy should be to delay the count and, if possible, prevent it from ever
being completed. If the votes haven’t been counted by January 20, then Nancy Pelosi
will be sworn in as the acting president. Throughout the fight, we must demand that
Trump concede.
We hope that none of this ever happens. If it does, even defeating Trump will badly
damage our democracy. Repairing the damage will require a long period of national
healing and reform to correct the flaws in our system that made it possible for an
autocrat to attempt to overturn the results of an election. But anything is preferable to
allowing Trump to seize the presidency by force.
ACTION STEPS ONCE THE FIGHT MOVES TO CONGRESS
For Democrats in Congress:
—Use procedural tactics to delay: Democrats have a wide variety of procedural
maneuvers they can use to slow down Congressional proceedings, especially in the
Senate. They should use every procedural tactic possible to shut down Congress.
—Call a House recess and delay the count: House Speaker Nancy Pelosi should
declare that the House is in recess and order the Sergeant at Arms to remove Mike
Pence and members of the Senate from the chamber. The House should refuse to
convene until Trump concedes.
—Delay seating incoming senators: 35 Senate seats are up for election in 2020.
Those senators will need to be seated before they can vote on a dispute over
electors. Before the Senate seats those incoming senators, Democrats will briefly
have a 35-30 majority. If Democrats don’t win a majority in the Senate in this
election, Democrats should delay the seating of those senators until after the joint
session to count Electoral College votes, ensuring that Democrats have a majority in
the Senate during the Joint Session.
—Organize and participate in mass civil disobedience at the Capitol: Lead the
public in staging mass civil disobedience protests in the Capitol with the goal of
making it impossible for Congress to meet or vote.
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—Deadlock is preferable to a Trump coup: If they can’t win a vote to give Biden the
majority of Electoral College votes, Democrats’ goal should be to delay until House
Speaker Nancy Pelosi is sworn in as acting president on January 20. They should then
refuse to allow an Electoral College vote count until Trump concedes.
For Democratic officials everywhere:
—Biden must not concede: Once the fight moves to Congress, Biden should refuse
to concede under any circumstances unless a complete and fair ballot count proves
that Trump is the legitimate winner.
—Refer to Trump as a would-be autocrat, not a candidate: Do not grant Trump
legitimacy by referring to him as a candidate. If the fight moves to Congress, we are
fending off a coup by Trump and his allies not settling a legitimate dispute over a
presidential election.
—Call on Republicans in Congress to vote against Trump: We will only need a
handful of Republicans in the Senate to vote for democracy instead of Trump.
—Publicly and vocally back any tactics Democrats in Congress must use:
Democrats may have to use unprecedented procedural tactics to block Trump’s
presidency and they will need public support. Your constituents look to you for
leadership, especially in a crisis, and it’s your job to explain why Democrats are
justified in taking extraordinary measures to prevent Trump from usurping the
presidency.
—Call on the military to remain neutral and reject illegal orders: Some people may
call on the military to remove Trump from office. We should unequivocally oppose
this and urge military leaders to remain neutral while civilians settle the outcome of
the election and to reject illegal orders from Trump.
For people everywhere:
—Shut Down the Country: As the fight moves to Congress, we have to bring the
country to a complete halt with massive protests, civil disobedience and strikes. We
must remain in the streets and engage in mass civil disobedience until Trump is
removed from the White House.
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—March on Congress and the White House: Those who can should go to
Washington, D.C., to ensure there is a massive presence that Democrats and the
media cannot ignore.
—Back the Democrats in Congress: Protest alone isn’t sufficient. We need to use
protests to support Congressional Democrats’ targeted strategy to prevent Trump
from getting an Electoral College majority. We have to balance a general anti-Trump
message with a focused message supporting the fight in Congress.
—Pressure the Supreme Court to back Biden or remain neutral: Put public pressure
on the Supreme Court to stay out of the fight in Congress unless it is to support
Biden. The Supreme Court’s first duty is to the Constitution. In a fight with a
would-be autocrat, no interpretation of the law that supports the autocrat’s ambitions
is valid.
—Trump must concede: Organize your community – your elected officials, local
media, faith leaders, business owners, government officials, etc. – to call on Trump to
concede.
III.
Conclusion: Defending Democracy
“[T]his may well be a street fight, not a legal battle; technocratic solutions,
courts, and a reliance on elites observing norms are not the answer here … A
show of numbers in the streets- and actions in the streets- may be decisive
factors in determining what the public perceives as a just and legitimate
outcome.” – The Transition Integrity Project, Preventing a Disrupted Presidential
Election and Transition, August 3, 2020
As we write this, it seems likely that Biden will defeat Trump in a landslide. If that
happens, Trump will have little choice but to accept the results of the election. He may
not go quietly, but he’ll go.
But if Biden wins a narrow victory and Trump tries to overturn the results, we have to
be psychologically prepared to act quickly and decisively, and we have to have a plan.
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We encourage you to share this guide with your friends, family, and community, to read
it together and to decide now what you can do if Trump and his allies refuse to accept
the results of the election.
We’ve painted a bleak picture of post-election mayhem and subversion of democracy,
but we can’t afford to feel hopeless. Americans have faced greater challenges to our
democracy, overcome them, and built stronger, more democratic institutions.
Trump is weak and lacks political support. That’s why he’s losing. The only way he
can win is if we don’t understand the threat we face, we abandon the playing field after
November 3, and we rely on the courts, laws, norms, and Congressional procedure to
save us.
We all have a part to play. Elected officials at every level of government must do their
part to ensure that we have a fair and free election, speak out if Trump tries to disrupt
the election, and side with and protect pro-democracy protesters. The rest of us have to
make sure they do their jobs and protest by the tens of millions and stay in the streets
until Trump leaves office.
America is a democracy because people have fought throughout its history to make it
one. There’s never been a time when our country wasn’t threatened from within by
people who preferred autocracy and oppression to democracy and freedom. We’ve
defeated them before. We will do it again.
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