President Donald Trump’s continued attacks on the legitimacy of voting by mail and refusal to commit to a peaceful transfer of power has raised concerns that a bitterly contested presidential election in November could provoke a constitutional crisis.
Experts predict nearly 80 million people will vote by mail this year, and recent polling indicates that nearly twice as many Democrats as Republicans will send in absentee ballots.
Trump, who is trailing in national presidential polls, has repeatedly – and without evidence – denounced mail-in voting as fraudulent and a scam. Many states have expanded absentee voting during the coronavirus pandemic to reduce the potential for spreading the highly contagious and deadly disease.
In particular, the president has been critical of states that proactively sent mail-in ballots to all registered voters, even those that did not request one.
Twice last week, Trump refused to commit to the peaceful transfer of power if he loses the election, citing concerns over the legitimacy of mail-in ballots.
"We are going to have to see what happens. You know that I've been complaining very strongly about the ballots, and the ballots are a disaster," said Trump during a news conference on Thursday.
Democratic presidential candidate Joe Biden said he was not surprised by Trump’s equivocation on ensuring a peaceful democratic transition. “Look, he says the most irrational things,” Biden told reporters Wednesday evening. “I don’t know what to say about it. But it doesn’t surprise me.”
U.S. Senate Majority Leader Mitch McConnell and other top Republicans on Thursday reiterated their support for the democratic principle of peaceful transition, without directly criticizing the president.
Analysts note that while there is no evidence of widespread vote-by-mail fraud as the president has alleged, mail-in ballots do have a higher rejection rate, mostly because voters fail to fill them out properly.
Also there have been cases of ballots getting lost in the mail, and as happened during this year’s primary elections in the midst of the coronavirus pandemic, some states experienced long delays in counting the surge of mail-in ballots.
“The more you encourage people to vote by mail, the larger the number of people who will be disenfranchised and their votes aren’t going to count,” said Hans von Spakovsky, a former Federal Election Commissioner, now with the Republican leaning Heritage Foundation.
Von Spakovsky also raises security concerns over mail-in ballots, that they could be intercepted and altered, or that polling staff may not properly check that ballot signatures match the registration signatures on file.
Trump predicts there could be legal challenges to the ballot count that would ultimately be decided by the Supreme Court. This is one reason he has cited for his intention to nominate a replacement for recently deceased liberal Justice Ruth Bader Ginsburg before the election.
In the closely contested 2000 presidential election, the Supreme Court ruled on a vote recount dispute in Florida that essentially provided Republican George W. Bush a victory over former Democratic Vice President Al Gore by one electoral vote.
Gore then conceded, saying it was for the good of the country, despite winning the overall popular vote.
The Supreme Court’s role this year in all of this – if any – remains to be seen.
“Hopefully we won't be in a situation in which we're asking justices to rule on a case that will decide the outcome of the election. I think that would be very problematic for democracy,” said Sam Berger, a Democratic political analyst at the Center for American Progress.
One contested election scenario called the Red Mirage or Blue Shift could sow doubt over the legitimacy of the election and lead to legal challenges to mail-in voting.
A Democratic polling firm called Hawkfish projected that because the mostly Democratic mail-in ballots could take days longer to tabulate than in-person voting, Trump may take the lead on election night, but eventually lose to Biden as absentee ballots are counted.
Democrats reportedly fear Trump would claim victory early and refuse to later concede by challenging the legality of mail-in ballots.
Also, according to a report last week in The Atlantic, the Trump campaign, citing possible vote-by-mail fraud, is considering asking Republican-controlled state legislators, “to set aside the popular vote and exercise their power to choose a slate of electors directly.”
In the complicated U.S. Electoral College system that gives added weight and influence to smaller, rural states, the popular vote in each state is used to select a slate of electors who pledge to cast their ballots for the winning candidate.
Democrats would almost certainly challenge in court any Republican attempts to override the popular vote in Biden’s favor by installing electors pledged to vote for Trump.
Michael Waldman, president of the Brennan Center For Justice at New York University Law School, says there is long established legal precedent, “that made it clear that when it comes to the electoral votes, it's the voters' will, not the legislators' or the tweets of any candidate that decide."
A protracted legal battle over a contested election, analysts fear, could undermine public confidence in the American democratic system and provoke political violence from both right-wing militias and radical leftists.