Regardless of what happens in the days after Tuesday’s vote, the 2020 election has demonstrated one thing above all: American institutions may not be strong enough to cope with a candidate for president who tramples on democratic norms in the pursuit of power. The constitution was not designed for a candidate who refuses to concede defeat. It cannot function when one side is more committed to power than to democracy.
The polls currently point to a convincing win for Joe Biden. The New Statesman’s election model puts the Democratic candidate in with an 89 per cent chance of victory: not definitive, but fairly conclusive. Barring an upset greater than in 2016, Biden will win the vote on Tuesday.
There are many unknowns that follow from that, however. Could Donald Trump calling the election rigged and fraudulent day after agonising day until the inauguration of the next president on 20 January prevent a peaceful transfer of power? As set out in detail in The Atlantic, the vote totals in every state do not guarantee that state’s electors will cast their votes for the winner. Will the confirmation of the conservative judge Amy Coney Barrett to the Supreme Court a week before the vote secure the presidency for Trump if the court is called to adjudicate on a contested result, à la Bush v Gore in 2000?
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As Jonathan Gienapp, an assistant professor at Stanford, has argued, US democracy is uniquely ill-prepared for a candidate who refuses to accept the fundamental norm that the loser should concede defeat. “If we are ever forced to endure one party’s refusal to transfer power peacefully to their rival, it is hard to believe that such an event will not cause lasting damage,” he reckons. If Trump contests the result of an election he did not win – as he has indicated he would do – the US will be plunged into an unprecedented crisis lasting perhaps until inauguration day.
Even if Biden weathers the storm and is eventually inaugurated, this election will have left its mark on American democracy. It will have shown that US institutions can be tested to breaking point by a candidate unwilling to accept defeat.
Win or lose, Trumpism will outlive Trump. Think of the infamous “send in the troops” op-ed published by Senator Tom Cotton; of the politics of white resentment pushed by talkshow hosts Tucker Carlson and Laura Ingraham; of Senator Mike Lee’s statement that “democracy isn’t the objective; liberty, peace, and prospefity [sic] are.” The resentment Trump harnessed to sweep the Republican nomination in 2016, the hatred he has stoked since, and crucially the abandonment of every norm in pursuit of power – those political forces may be going nowhere. Another Trump may not ever appear, but someone similar might – and do Americans want to take that risk again in four, eight or 12 years?
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If Biden wins, his agenda must include strengthening America’s creaking institutions to ensure that no contest can be gamed by a party comfortable with trampling on democracy. The overarching priority should be abolishing the Electoral College, not for reasons of electoral fairness, although that is also a decent motive, but to avoid the possibility in future of rival slates of electors being sent to Washington, both purporting to represent the will of a state with a contested result. The Supreme Court ruled in Bush v Gore that a state may “take back the power to appoint electors”, which could empower a losing candidate to put pressure on state legislators to appoint a friendly slate of electors in cases of unclear or drawn-out results.
Whether the nightmare scenario happens after Tuesday is almost immaterial. The fact that it could too easily happen without reform should be unacceptable to small-D democrats and small-R republicans alike. Biden owes it to Americans, and to the world, to ensure that it never does.
[See also: US 2020 presidential election: Map the result]