How to avert a post-election nightmare

A “war game” that tried to simulate the 2020 transition ended in violence. One of its organizers explains how to prevent that.

Imagine that, after a narrow Joe Biden victory in November’s election, Donald Trump refuses to concede defeat — citing, among other things, alleged voter fraud in mail-in ballots. Imagine that this goes on for months, right up until Inauguration Day in January. Imagine huge protests in the streets on both sides, massive unrest that the police are unable or unwilling to contain. Imagine that some armed pro-Trump supporters, furious with what they see as a coup attempt, take matters into their own hands.

This may sound far-fetched. But in June, an organization called the Transition Integrity Project (TIP) convened a group of more than 100 bipartisan experts to simulate what might happen the day after Election Day — running a kind of political “war game” where veteran Democrats role-played as the Biden campaign and veteran Republicans acted as the Trump team.

They simulated four scenarios: a big Biden victory, a narrow Biden win, an indeterminate result à la the 2000 election, and a narrow Trump victory. In every scenario but a massive Biden blowout, things went south.

“We anticipate lawsuits, divergent media narratives, attempts to stop the counting of ballots, and protests drawing people from both sides,” TIP writes in a post-exercise report summarizing their findings. “The potential for violent conflict is high, particularly since Trump encourages his supporters to take up arms.”

Nils Gilman, the vice president of programs at the Berggruen Institute think tank, is one of the project’s co-founders. In his view, the exercise highlighted key flaws in our electoral system, ranging from the rickety 18th-century design of the presidential election system to our modern plague of hyperpartisanship. These problems, Gilman says, make the electoral system particularly vulnerable to a catastrophic collapse in 2020 — and some of them could still be addressed before it’s too late.

Legislators in key electoral states can need to “affirm the process they’re going to use” to count votes and challenge results in advance, so everyone can agree on how to proceed after Election Day. The media needs to make sure people understand that everything may not be decided on election night, and to call false claims of fraud for what they are.

And ordinary citizens, Gilman says, “need to be prepared to take to the street in nonviolent protest” if the results appear to be corrupted — one of the last lines of defense when a political system breaks down.

What follows is a transcript of our conversation, edited for length and clarity.

Zack Beauchamp

When you started putting together the Transition Integrity Project’s simulation, what post-election scenarios concerned you the most?

Nils Gilman

I think there were two broad categories of concern.

We have this peculiarity in the American presidential system where the election happens on the first Tuesday in November, but the president doesn’t actually take power and get sworn in until January 20. So there’s this 10- to 11-week period where there’s one administration coming into power and the other one leaving. The administration that’s in power during that interregnum could potentially get up to a lot of mischief — if they’re not inhibited by either norms or their own party.

There’s this famous anecdote that when the Clinton people were leaving the White House in 2001 and the Bush people came in, they found all the W’s had been taken off the keyboards. Obviously, that’s sort of trivial, right? The fact is that there’s lots of other things that are obviously many orders of magnitude more serious that the outgoing administration could potentially do: looting, engaging in sabotage of various sorts, engaged in starting a foreign adventure, weighing poison pills for their success, particularly if they were embittered by the way in which the loss went down.

So we were concerned about those kinds of administrative transition risks. We’re also concerned, frankly, that the incumbent administration could attempt to do things using the executive power, the power of the executive branch, to basically stop the full resolution of a close election.

Imagine the 2000 election scenario, but you have an unbounded president using federal authority that he still controls to shut down the counting of votes in states where he’s got a lead on election night and he doesn’t want to see the recounts happening.

In 2000, the Democrats were in control, yet the Clinton administration didn’t try to interfere in that process, and ultimately it was resolved by the Supreme Court. But that’s not the scenario we have now. Trump himself has lots of incentives to use executive power to hold on to power for a second term.

Zack Beauchamp

Underpinning this analysis is a banal but vital point: Trump is different from past presidents.

Nils Gilman

I don’t think this would have been necessary in 2016, in 2012, in 2008, in 2004, in 2000, in 1996, in 1992. The reason I bring up all these different dates is that there were different potential parties that would lose, but one thing that Bush Sr., Clinton, Bush Jr., and Obama had is respect for the actual counting of the votes and the process. I don’t think Trump has respect for anything. I think the only thing he’s interested in is power.

Zack Beauchamp

So when you had people playing the different 2020 campaigns, reacting to different scenarios like a Biden blowout or an indeterminate result à la 2000, did the exercise play out in a way that you would have expected?

Nils Gilman

I would say that it ended up pretty close to the worst-case scenarios I had worried about. In three of the four scenarios, all but the one where Biden won big, we ended up with massive contestation in the streets where both sides called out their followers into the streets, clashing protesters. Violence, political violence. And actual contestation of the results, running down to literally Inauguration Day.

Joe Raedle/Getty Images

Zack Beauchamp

Oof.

Nils Gilman

One of the things that I learned, that I was only dimly aware of before I did this, was how many technical ways there are to contest an election. This is an artifact of the very archaic 18th-century nature of the way in which we elect presidents.

If I vote for Trump, I’m not actually directly voting for Trump. I’m voting to advocate that my secretary of state tell my state legislature that they should certify a slate of electors to support the Republican candidate, i.e., Donald Trump. Then my state legislature sends it to the governor, the governor approves that and sends it to the Electoral College, which meets in mid-December. The Electoral College then sends all their votes on to the Congress that meets on January 6 — which is, by the way, the new Congress, not the old Congress.

Each chamber of Congress, both the Senate and the House, have to certify the results from each state. The state delegation from Texas, for example, has to certify both the House of Representatives and the two senators certify the results of that state’s electors. Then it gets sent on to the sitting vice president of the United States, who gets to choose whose electors they prefer if there’s a dispute between those two parties.

So things that can happen include states putting forward multiple slates of electors. So, for example, if you look at states like North Carolina, Wisconsin, and Michigan, you have an extremely polarized situation where you have a Democratic governor and a Republican legislature and they can perhaps send separate slates of electors.

This is not just a hypothetical. This actually happened in the election of 1876, between Rutherford B. Hayes and Samuel Tilden. There were three states — Florida, South Carolina, and Louisiana — that sent in competing slates of electors. The parties were said to have planned competing inaugurations.

It was contested until literally the last day before inauguration, when Tilden gave up his claims for the presidency and told his electors to stand down — in exchange for ending Reconstruction. The integrity of the electoral process for presidents was maintained, but it came at the cost of effectively imposing Jim Crow on African Americans.

These mechanical instruments for contesting the result still exist within the constitutional process.

Zack Beauchamp

So what makes you think that, in the real world, the two major parties would be willing to exploit some of these procedural mechanisms to create 1876-style chaos?

Nils Gilman

I think there is a very sizable faction of both Democrats and Republicans who believe that the only way they lose this election is because of some sort of fraud. On the left, they’ll say it’s voter disenfranchisement. On the right, it’s ballot fraud. We can debate about how much credibility either of those narratives have, but in a sense, it doesn’t matter. The point is the narrative is there. And that narrative provides a kind of rationale for contesting a result.

Both sides also believe that if they lose and the other side is allowed to take power in 2021, or keep power in the case of the Republicans, that whoever takes office in 2021 is going to fundamentally change the rules so that they’ll never have a chance to compete effectively again. You see the president narrating this line already, saying if more people voted, “you’d never have a Republican elected in this country again.”

Ira L. Black/Corbis via Getty Images

And there are smaller factions on both sides who believe it’s literally a matter of life and death for them and theirs. There’s a faction on the far right, the kind of people who marched in Charlottesville, saying, “You will not replace us.” They believe that if the Democrats win, they will impose an order that will get them replaced.

When the stakes are that high, people will do really dramatic things. Actually contesting the electoral results is not even the thing I worry about most.

I have a background studying state failure and coups and revolutions. Every single person I know in the community of people who studies those things, people who look at indicators that those kinds of things can happen in other countries — they look at this country and they are terrified.

Zack Beauchamp

So if the flaws in our electoral system create such gigantic risks, what can be done to head off the worst-case scenarios?

The normal answer to this question is something like this: Expect participants in the electoral game to accept the rules, accept the outcomes, and avoid inflammatory rhetoric. This is the kind of statement the US State Department would issue about an election in a developing country that was likely to be contested. But we can’t expect the president to maintain his cool and accept the outcome of the election. The whole reason we’re talking about this is that we’re in abnormal times.

So what is to be done? Or, more precisely, what can be done by different actors who have roles to play that could lessen the chances of things getting really bad?

Nils Gilman

That’s a great question.

Let’s start with what ordinary people can do. I think the first thing everybody can do is you can call your senator, your member of Congress, your state legislator, your governor, and insist on a couple of basic democratic principles, which really ought to be totally noncontroversial and nonpartisan: Everybody who wants to vote should be able to, and everybody who’s voting should have their vote counted properly.

The second thing we need is for people to be prepared to take to the streets in nonviolent protest if that doesn’t happen. I want to emphasize nonviolent.

We’ve learned over the last couple of months, since the Movement for Black Lives protest really took off again in the wake of George Floyd’s murder, that taking to the streets and showing commitment to a democratic process beyond just the ballot box is a really important part of driving change. We’ve also learned that there are violent elements, both on the left and agent provocateurs on the right. Both of those things, in fact, manifested themselves in the protests that we’ve seen over the last few months.

I think if people are going to take to the streets, which they may need to do in order to insist that our democracy be maintained, then they need to be prepared to be very disciplined about insisting that it be nonviolent.

That’s what ordinary citizens can do. In terms of what people in positions of power can do, I think there’s all sorts of things.

In states like the ones I mentioned earlier — Michigan and Wisconsin and North Carolina — it would be good if there were conversations that were had and then made public by both the Republican leaders in those states and the Democratic leaders in those states that affirm the process they’re going to use, to adjudicate the outcomes in advance. In the event of a contestation, they’ve then worked out the details about how they’re going to do this, and they’re pre-committed to a process that will have legitimacy and transparency.

Second thing they want to do is be really transparent about what’s going on. One of the things you can be sure of is there’s going to be 100-plus million people who are going to vote across the country. There’s thousands of different voting jurisdictions. Will every single one of those places execute perfectly?

Will there be zero people in the whole country who are, in fact, trying to commit fraud? No, there will be a few. When you have a huge country like ours, it’s inevitable that some of that will go on, but these things, in all likelihood, will be a tiny rounding error. It should not be allowed to color the integrity of the entire process.

One of the ways we can ensure that people have confidence in that is that all of the different precincts be very transparent about the way they’re going to count the votes. That’s an important part of the process for making it happen.

The third group of people that could really help is law enforcement organizations. Obviously they’ve had a lot to contend with in the last few months, but what we’ve seen in the last few months will be child’s play compared to what could happen if you had literally millions of both Biden supporters and Trump supporters showing up in the streets in order to try to contest or support whatever result they want.

So law enforcement organizations better be planning for that kind of thing because it’s going to require a totally different kind of response than the kind they’ve been engaged in in the last months. If they don’t get it right, that will be more than an excuse — it might even be a legitimate reason for federal forces to be brought in. We’ve already seen Trump’s willingness to do that in Portland. He’s now said he’s going to deploy these [forces] in conspicuously blue cities like Detroit. So anything he could use an excuse would be something that we would want to avoid.

Zack Beauchamp

What do you think about the role of one, the national Republican Party elite, and two, the media? It seems like both of these institutions will play vital roles in the event that Trump loses.

Nils Gilman

For sure.

In some sense, Trump doesn’t need to win: He just needs to create a narrative that he didn’t legitimately lose and then has to make that narrative take [hold] in the right-wing media and with Republican elites.

There’s some indication that Republicans are willing to push back on some of his more outrageous things. When he suggested that the elections should be postponed, lots of Republicans said no. What was striking about that was that they didn’t say boo when he deployed federal forces in Lafayette Square and in Portland. They didn’t say boo when he said he might not accept the election results when [Fox’s] Chris Wallace asked him.

So they do have some limits. But the limits may not be ones that would prevent the outcome from going to the worst-case scenarios. It’s not clear to me who could play the part of Barry Goldwater in 1974, going to Nixon and telling him the game’s up, you’ve got to go. I absolutely obviously hope that senior Republican officials in states and in Washington will respect their oaths of office and try to respect the process, even if it works out against their guy. I’m not so sure I’d want to put a lot of confidence [that] when push comes to shove, they’d be willing to do that.

Zack Beauchamp

And news organizations?

Nils Gilman

I think the media in some ways has the most important role of all. If there’s a contested result, the only way that either Trump or Biden, for that matter, can effectively contest a result that goes against them is if they create a plausible narrative that is backed up by their media factions that they actually were the legitimate winners of the election. That the seeming results that went against them in fact, in some ways, are not legitimate.

You could imagine that Trump says, “Oh, guess what? Rumors of voting irregularities in Broward County. We had to throw out those votes because who knows what was going on down there? We need to throw those out until we can figure out what the hell is going on.” He just does that in Maricopa County, he does that in Milwaukee County, etc., across all these different places, and then the question is … we know his strategy: He throws stuff against the wall and sees what sticks.

There’s going to be a crazy social media firestorm going on on this, but my suspicion is that the decisive question will be, in the event of a Trump loss, how people like the evening lineup on Fox react. Do [Sean] Hannity and Tucker Carlson and Laura Ingraham accept that he lost, or do they go with the crazy conspiracies as they’re bubbling out of the fever swamps?

Jim Watson/AFP/Getty Images

Ultimately, it’s actually not them who’s going to decide. It’s actually, ultimately Lachlan and Rupert Murdoch who are going to decide. Those guys on the evening lineup check in with the boss. So the question really is, what will those senior leaders be willing to countenance?

Likewise, what is Mark Zuckerberg going to be willing to countenance in terms of the propagation of nonsense on Facebook? Right now, there hasn’t been a lot of indication from either the Murdochs or Zuckerberg that they’re willing to put any limits on what’s going to be said. So that’s a deep concern.

These people will hold the state of the republic in their hands, potentially. The question is how do they want to be remembered?

Zack Beauchamp

So this has all been pretty apocalyptic.

I want to ask one moderating question. The polls suggest a very high likelihood of a Biden win, and quite possibly a Biden blowout. Does that make you less worried? If it’s a really clear-cut scenario where Biden wins, maybe even one that’s declared on election night, do you think Trump is not likely to fight in the way you’re describing here?

Put differently, how much of what you’re worrying about is contingent on the election being really close — and how much of it is a deeper fear about the nature of our political system and the rise of hyperpartisanship, when even a clear-cut result wouldn’t be enough to get a loser to accept the results?

Nils Gilman

The one scenario that we modeled which didn’t end up in a really terrible situation was, in fact, the scenario where Biden won by a very decisive margin and it was called on election night. Trump still tried a bunch of shenanigans in order to try to negotiate a better exit package for himself in that scenario, but there was no actual contestation of the results in that particular case.

It’s just a simulation; it’s not a prediction. But if Biden wins 350 electoral votes or 375 electoral votes, Trump has lost Florida, he’s lost Arizona, he’s lost North Carolina, he’s lost maybe Georgia, maybe Ohio. Remember, the man’s not very competent; he’s not going to actually be able to probably mount the contestation of 12 states at once. So he probably goes.

But then we’re still left with a situation where people on the right think that outcome is a death sentence. And I mean that not as a metaphor.

Zack Beauchamp

Yeah. In literal terms.

Nils Gilman

I don’t know, right? It would be good in terms of maintaining the integrity of the institutions, but I’m not sure it solves the underlying social and political risks that have led us to this impasse in the first place.

Zack Beauchamp

In other words, you’re saying it’s not just Trump. Trump uniquely exacerbates a certain category of election-contestation-related risks, but the reasons the risks exist at all run deeper than him.

Nils Gilman

Trump is more of a symptom than anything else. The man, as far as I can tell, has neither ideas nor ideology — only instincts and interests. He may fade away quite quickly.

Or he may go start Trump TV. Even if he loses and even if he goes, he will still be here. Even if he’s perhaps broadcasting Trump TV from his dacha in Sochi, Russia, he still will be able to influence the political process. Then Republicans will immediately have instincts to not cooperate with Joe Biden and try to set up their electoral fortunes for 2022 and 2024.

I think one of the things that’s going to be really interesting is what happens to other Republican elites if he loses in a close election and goes. Let’s say Biden wins, the process gets resolved relatively normally, but Biden only wins 300 electoral votes. At that point, Trump goes, perhaps, but who’s going to be the successor in the party? And what is going to be their conclusion about the kind of politics they should be running in the Republican Party?

I think that what ends up happening is Josh Hawley and Tucker Carlson and Tom Cotton look at the situation and say, “Well, it’s true that Trump lost, but he was dealt a really bad hand. The Covid thing came along and he got unlucky with that and he was incontinent with his tweeting. And all we need to do is basically double down on the same formula and execute it a little bit more competently and a little bit more ruthlessly and a little bit more effectively.”

In the event of a close Trump loss, I think that’s where the Republican Party goes. In the event of a real Biden blowout, and particularly if there are deep losses in the Senate, that would be a pretty catastrophic blow and they’d be in the minority across the board. At that point, there might be a reckoning within the Republican Party, but I’m skeptical.

Obama had this theory all along that eventually the fever would break, and that’s not proven out over the last, I would say, 26 years. This process began with Newt Gingrich, and it’s just gotten more and more intense ever since. So I don’t know that necessarily even with a Biden blowout, the Republicans are going to fundamentally change their approach to politics.

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