The peaceful transfer of power from one presidential administration to the next is one of the most important processes in American democracy. Based on his language at rallies, in speeches, and during interviews, many observers believe that should President Trump lose, he might be a threat to this process, casting a longstanding tradition under the shadow of uncertainty.

GLG recently spoke about this with Lawrence Douglas, a GLG Network Member and the James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. His recent book Will He Go? Trump and the Looming Election Meltdown in 2020 addresses what could happen if the President challenges the outcome of the election.

Your most recent book explores the vulnerabilities of the U.S. electoral system, with a specific focus on the challenge presented if an incumbent president narrowly loses reelection and opposes the peaceful transfer of power. What sparked your interest in the subject?

Like many, I was alarmed back in 2016 when, in his final debate with Hillary Clinton, Trump refused to commit to accepting the outcome of the election. I recall thinking, “Imagine the kind of damage that a sitting president who rejected electoral defeat could cause our constitutional democracy.” That moment provided the germ for the book.

Shortly after his inauguration in 2017, President Trump claimed that his narrow loss in New Hampshire was due to voter fraud. He has continued to raise similar allegations regarding mail-in ballots as voters look toward early or absentee voting amid the COVID-19 pandemic. If we were to find ourselves in a situation where he loses narrowly in November, what legal or political paths could he pursue in mobilizing a challenge to the electoral outcome?

He could certainly use his legal resources to try to disqualify thousands upon thousands of mail-in ballots in key swing states. There are various grounds for disqualifying mail-in ballots — such as tardy submission or missing signature — and he would be well within his legal rights to litigate these matters. Politically, he could use his bully pulpit in the White House to prematurely insist that he has been reelected based on the lead that he might well enjoy on November 3. In the days following, we can also expect him to treat news reports of minor human error in the counting of mail-in ballots as evidence of a vast conspiracy to rig the results.

What impact does media — and particularly social media — have on how we consume election-related news and form opinions about the legitimacy of elections?

Unfortunately we must reckon with the likelihood that Russa, or some other foreign adversary, will launch a disinformation campaign on social media platforms, claiming that mail-in ballots have been so infected with fraud that it’s impossible to say which candidate has carried key swing states. Facebook and the like must be extra vigilant in policing their platforms. More generally, the media must remind the American people that we might not know who has been elected our next president for some days or even weeks — and this is not a sign of the system malfunctioning but simply a consequence of voting in a time of pandemic.

What steps can be taken to shore up our electoral system moving forward?

I think it would nice if we could get rid of the Electoral College — an archaic, undemocratic, and dangerous system — and move to a national popular vote, with, perhaps, an instant runoff mechanism built into the process. We also need to make sure that our highly decentralized election infrastructure is adequately funded so bad actors cannot cause havoc with a small number of targeted cyberattacks.

---

About Lawrence Douglas

Lawrence Douglas is the James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. He is the prize-winning author of seven books, most recently The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial.

The recipient of major fellowships from the National Endowment for the Humanities, the American Council of Learned Societies, the United States Holocaust Memorial Museum, the Institute for International Education, and American Academy in Berlin, and the Carnegie Foundation, Douglas has lectured throughout the United States and in more than a dozen countries, and has served as visiting professor at the University of London and Humboldt Universität zu Berlin.