In these unprecedented times of stress, people understandably yearn for decisive actions by their leaders to solve problems. The danger in all such situations, however, is that the leaders will take advantage of public panic and engage in actions that undermine—or even end—democracy. Presidents may be all too tempted to seize such moments to amass power.
But there are, I am happy to say, at least a few calls for political actions in response to the coronavirus crisis that, while extreme, are reasoned and very responsible. The best example of this can be found in my Verdict colleague Michael Dorf’s special column from this past Sunday, “Lock Us Down; Suspend Habeas; Save the Nation.” As the title indicates, Professor Dorf calls for truly unusual measures to deal with the current pandemic, measures he readily admits he would not favor in normal times.
What makes his call for even such extreme measures responsible is that he is calling for congressional action, not presidential overreach. He is, in other words, allowing the people’s representatives to determine the best way to deal with an unexpected crisis. And because of the fortunate fact that Democrats won back the House of Representatives in the 2018 midterm elections, any such action would have to be bipartisan.
In particular, affirmative measures by Congress to deal with the crisis would have to have substantial buy-in by both Senate Majority Leader Mitch McConnell and Speaker of the House Nancy Pelosi. Those two political leaders are not known to work well together (to say the least), and Pelosi certainly would never agree to anything that would make Donald Trump effectively a dictator.
It is thus possible, as Dorf recommends, to rely on the Supremacy Clause to allow the federal government to order the states to lock down populations, to strip the courts of jurisdiction, and to suspend habeas protections—all without putting Trump above the law. Moreover, he notes that “Congress could include a relatively short sunset provision to ensure timely re-evaluation.”
Unfortunately, responsible calls for extreme actions like Professor Dorf’s are being swamped by calls for illegal and outright scary actions by the White House, including possibly canceling the 2020 elections in the name of protecting the public. Because I have long worried that Trump would refuse to accept the consequences of losing this year’s election even if there were no crisis, this truly terrifies me.
The good news is that unless Trump (and his Republican enablers) simply ignore the Constitution and the laws entirely—which is certainly a possibility—there is nothing that Trump himself can do to shut down the 2020 election. The bad news is that a few well-placed Republican governors of blue states could effectively throw the election to Trump by shutting down their own states’ elections. Please bear with me as I explain.
The Words “Cold Comfort” Were Never More Apt
Before turning to that counterintuitive possibility, allow me to point out one excruciatingly ironic silver lining to the current situation. Many people have long worried what Trump might do in order to win in 2020, wondering how far he would be willing to go in order to save himself from defeat, humiliation, and possible post-presidential prosecution and imprisonment.
The worst-case scenario that I have been harping on for what seems like forever is, in fact, a relatively peaceful story (or it can be). After all, my prediction is that Trump will be declared the loser on November 3, at which point he will announce that the election was “rigged by the crazy Dems,” and he and the Republicans—including, but hardly limited to, those Republicans who lost their own down-ticket elections—will be happy to back him up.
I have stipulated that this could lead to violence in the streets, but Trump’s action itself would be a straightforward bloodless coup. “I didn’t lose. I won. I’m not leaving.” And Republicans would be happy to say that he was right, refusing (again) to block his unconstitutional and illegal actions.
Other commentators have wondered, with varying degrees of seriousness, whether Trump might avoid even the temporary humiliation of losing by doing something insane, such as starting a war or dropping a nuclear bomb on Iran or some other country.
With the emergence of COVID-19, however, Trump now has his excuse for rallying people around the flag to allow him to make blatantly illegal power grabs. The cold comfort, then, is that the probability of Trump doing something truly deadly in order to win reelection has been reduced significantly, but only because something deadly has already arrived.
Do you feel better? I certainly do not, if for no other reason than the sorrowful reality that the current pandemic could kill many more people than a “splendid little war” would—or even than a not-so-splendidly big war might. (Nuclear weapons, of course, would change the balance radically.) Even so, in the midst of worrying about COVID-19’s existential threats to life as we know it, it might be worth bearing in mind that at least one other terrible possibility has become much less likely.
The Temptation to Use Crises for Political Purposes
Donald Trump is not the only person who has faced the opportunity to use a crisis to grab for (or cling to) power. In 2001, Rudolph Giuliani was completing his second term as mayor of New York City, and at that time, Michael Bloomberg had not yet engaged in his own power grab by arranging for himself an exemption from the City’s two-term limit for mayors.
With the November 2001 off-year election set to determine Giuliani’s successor, the 9/11 terror attacks provided what seemed like an opening for the man who went on to become Trump’s political hatchet man. Some people suggested giving Giuliani a third term, while he suggested delaying the election or at least delaying the inauguration of his successor to give himself more time in office.
Fortunately, even in those fraught times, the rule of law prevailed. The election went on as planned, Giuliani turned over power peacefully, and democracy was saved for a bit longer—even though both Candidate Bloomberg and his Democratic opponent actually offered support for Giuliani’s talk of staying past his expiration date. Power grab averted … barely.
The Stakes Today, and the Limits of the Law
We now face the prospect of millions of Americans losing their lives in the next year or so. With the government finally mobilizing people and money to try to catch up to the pandemic (which Trump and his people had denied even existed—yet another “hoax,” he said), Trump’s supporters are starting to discuss the possibility that he would—for the good of the nation—remove the uncertainty of holding an election later this year.
Fortunately, the President of the United States does not have that power. As New York Times writer Alexander Burns wrote over the weekend, state governments—but not the federal government—have broad latitude over changing the rules for primary elections. That is why Louisiana and Georgia had already moved back their election dates, and Ohio’s governor subsequently believed that he could do the same (although that is still in dispute).
But the general election is different. For one thing, federal law requires that an election be held on the first Tuesday after the first Monday in November every four years. That could only be changed legislatively, and the House would surely never pass such a bill. Moreover, the Constitution itself requires that the new Congress convene on January 3 and that the President by inaugurated on January 20. Legislation alone cannot change those dates.
Most interestingly, however, Burns notes that “the procedures for voting are generally controlled at the state level.” While Burns talks about the various ways in which state governments could use their considerable legal latitude to expand the franchise, let us consider a more sinister and extreme measure: governors canceling elections, supposedly as a public health measure.
Strategically Shutting Down Democratic-Leaning States’ Elections
Would that be possible, and if so, could Republicans pull it off to Trump’s benefit? And if they did, what would happen then?
Currently, 26 states are served by Republican governors, and 24 states plus the District of Columbia are led by Democratic executives. Even so, the states led by Democrats have a clear majority of 291 Electoral Votes, compared to 247 for Republicans.
That is not as good as it sounds for Democrats, however, because some Trump-friendly states—Kentucky and Louisiana, for example—have Democratic governors. Even if those governors allowed their state’s voting to go forward, Trump would win those electoral votes. The issue here is whether Republican governors could somehow steal the election for Trump.
In other words, the question for Trump is whether it is possible to keep Democrats from winning a majority of the electoral votes that are cast. Note that this is not the same as Trump needing 270 for a clear win. If he has less than 270, he could still win by keeping Biden’s total under Trump’s number.
But assuming no third-party candidate is in play, is it not true that Trump would (as a matter of simple arithmetic) win more than 270 if he keeps Biden under 270? The answer is no, because the constitutional requirement is that the winner must have an absolute majority of the “appointed” electors. And if some states never appoint electors, then the total number would be less than 538, which means that an absolute majority of the appointed electors would be less than 270.
And that is where the governors could play a role. Imagine that things are looking good for Joe Biden in October, and he is set to win back from Trump the “blue wall” states of Wisconsin, Michigan, and Pennsylvania that tipped the 2016 election away from Hillary Clinton. Game over?
Not at all. Even though all three of those swing states currently have Democratic governors (who would not agree to cancel their states’ elections in order to help Trump), what Trump needs is action by Republican governors in anti-Trump states, to block Biden from winning those electoral votes. Who are those governors?
Assuming that Biden would not be flipping the other big swing states that went for Trump in 2016 (Florida, Ohio, and North Carolina), we could easily end up with a map in which Biden seems set to win 279 electoral votes, leaving Trump with 259. Depriving Biden of twenty-one of his votes could deny him the presidency.
It just so happens that Massachusetts and Maryland—bright blue states—have Republican governors and have 11 and 10 electoral votes, respectively. If both states were to shut down their elections, Biden would have 258 votes to Trump’s 259 votes among the appointed electors.
Unlikely? About as unlikely as Trump winning in 2016 with 3 million fewer popular votes, maybe? But perhaps that is a bit glib, because the governors of Massachusetts and Maryland are—of political necessity—moderate and highly critical of Trump. It does seem unlikely that they would engage in this kind of scheme. There might be extreme pressure on them to go along, however, so even this is not out of the question—especially in what might at that point be a national state of panic as more and more deaths are reported.
Beyond that, there are other ways to play with the numbers that produce different scenarios. In one, Ohio could be on track to swing to Biden while other swing states have swung toward Trump, with Biden set to break the 270-vote barrier. There, it would be a highly partisan and Trump-friendly governor (who has already pushed the boundaries of the law by stopping his state’s primary two days ago) who could claim that the Buckeye State could not possibly hold an election safely—just coincidentally giving Trump the win in the Electoral College.
I am not saying that anything is likely or unlikely. What I am saying is that, even though Trump has no legal power to cancel elections (assuming he is willing to have his power limited by mere laws), other Republicans might hold that power. Moreover, it would not take an elaborate conspiracy or a large number of rogue governors to pull this off. Two, or even one, might be enough.
My larger point, however, is that we should not assume that anything is guaranteed. Trump is desperate to stay in office. Now that the coronavirus has presented him with an excuse to further distort our democracy, we should be wary of what he and his supporters might try to do.