Writing in Lawfare, Nov. 11, 2020, Benjamin Wittes asks, How Hard is it to Overturn an American Election? He explains that, while the vote count seems secure and definitive, the Trump administration's refusal to concede the result is dangerous. It should not be dismissed as mere sour grapes. It is an attempt to undermine the legitimacy of the democratic process and, ultimately, of the government.
And so it has come to this: the president of the United States is trying to overturn the results of a national election he unambiguously lost with a combination of petulant whining, spiteful and flailing executive action, and magic.
No, it’s not ultimately going to work, at least not if working is defined as allowing President Trump to maintain power in the face of expressed voter will.
But it is working better than I would have believed possible: in undermining confidence in American democratic processes, in damaging President-elect Joe Biden’s ability to govern in the short term, and in raising questions in the minds of the faithful as to whether Trump’s defeat was real.
Wittes concludes:
In short, the harm here is almost certainly not the threat to the fact of the transition of power. Every day that goes by, more votes come in, and states get closer to certification of results that have their own logic and momentum and will lead to Biden’s taking the oath of office on January 20.
The harm here, rather, has several dimensions.
First, it is a harm to the orderly transition of power. Merely raising the spectre of not honoring the results of an election, merely inducing democratic anxiety such that as serious-minded a person as Bill Kristol could write a piece like the one quoted above, is a democratic harm. Denying information to the Biden transition makes it harder to govern coming in. Conveying uncertainty to foreign actors is dangerous; it invites misunderstanding, and misunderstanding can be deadly.
Second, like so many aspects of Trump’s presidency, Trump’s response to the election has unsettled public expectations of what it means to lose a presidential election in the United States, what a patriotic transition looks like and what an outgoing president owes to his successor—and to the public. This is that old, pesky issue of norms. And once again, Trump is showing that presidential behaviors taken for granted are actually voluntary acts on the part of successive holders of the office—things that presidents do because they’re the things presidents have always done. [...]
Third, the president’s behavior will undermine trust among many people in the integrity of the election. It already has. An astonishing 70 percent of Republicans polled by Morning Consult report not believing the election was free and fair. Sustained campaigns to undermine trust run by entire political movements tend to work. And Biden will suffer from a lost perception of legitimacy among a major segment of the electorate as a result of this one.
Finally, fourth, there’s the chance that I’m wrong that Biden’s prevailing in the election’s aftermath—that the automatic processes I have described are just a little bit less automatic than I think they are. There’s the chance that Republicans, having dug themselves into the Trump hole, don’t stop digging when the results are certified, that they don’t quite know how to back down. There’s the chance that state legislatures are little more aggressively partisan than I imagine, or that a few courts go off the deep end.
There’s a chance, in other words, that things spin out of control.
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