Trump 'Will Not Accept Any Result That Is Not A Victory,' 'Atlantic' Writer Says | KALW

Trump 'Will Not Accept Any Result That Is Not A Victory,' 'Atlantic' Writer Says

Oct 1, 2020
Originally published on October 1, 2020 2:44 pm

In the first presidential debate, President Trump was asked if he would refrain from declaring victory until the election has been independently certified. He refused to make that commitment.

Atlantic writer Barton Gellman was not surprised.

"That's a man who won't leave," Gellman says. "There are many aspects of his past behavior and, frankly, his pathology that lead me to think this is an immutable decision on his part."

Gellman writes about the 2020 presidential election — and how he thinks it could trigger a constitutional crisis — in his latest article for The Atlantic. He notes that typically elections are ended when one candidate concedes to the other. It's a system, he says, that "presumes good behavior and presumes that a rational and well-meaning candidate will accept reality when it comes."

But Gellman does not trust a scenario that relies upon good faith from the president: "Trump is making as absolutely plain as he can that he will fight the mail vote, that he will try to get the vote count stopped, and that he will not accept any result that is not a victory for him."

At a rally over the weekend, Trump mocked the media for raising alarms about his earlier answer to a question about a peaceful transfer of power after the election. "Then they say, 'He doesn't want to turn over government' — of course I do. But it's got to be a fair election," he said, before repeating unfounded claims about widespread voter fraud.

Gellman says if the election is close, it could take weeks to determine the results in key battleground states as mail-in ballots are scrutinized for technical flaws and counted. If the president cries fraud and his supporters take to the streets, state legislatures could resolve to set aside the popular vote in their states and choose their own partisan delegations to the Electoral College.

While officials are preparing for a worst-case scenario, many believe the casting and counting of ballots will proceed normally, albeit more slowly, on election night.

"This is not going to be a normal election," Gellman says. "I think that preserving its legitimacy is going to take extra effort this year. Democrats are certainly aware of Trump's proclivities. They're certainly concerned about possibilities that he will cheat or try to hang on to power by means other than winning the most votes and counting all the votes. Trump has made it absolutely crystal clear that he does not want all the votes to be counted."


Interview Highlights

On a common misconception regarding Trump's threat to refuse to concede

Trump is capable of using the powers of the presidency, and the powers of his invincible decision not to concede, to raise doubt whether a winner or loser has yet been established — that he can prevent the achievement of a decisive outcome. - Barton Gellman

It's a subtle difference, but an important one: The usual way people say it is that they fear that Trump will refuse to leave the White House if he loses. He'll refuse to give up the reins of power. And Joe Biden says, well, that's an easy one. If he loses and he stays there, someone will evict him. That will most likely be the Secret Service or the military. They'll say, "Excuse me, sir, but your lease has expired on this office. It's 12:01 on Jan. 20, and we're going to now assist you in departing." That works if there is a clear winner or loser.

The greater danger is that Trump is capable of using the powers of the presidency, and the powers of his invincible decision not to concede, to raise doubt whether a winner or loser has yet been established — that he can prevent the achievement of a decisive outcome, which is a far greater risk to the American system.

On the fact that mail-in ballots skew in favor of Democratic candidates

It is true that for about 20 years now, the so-called overtime count, which is the count of the late reporting precincts, the provisional ballots and the mail-in or absentee ballots, that overtime count has shifted towards Democrats for reasons that are not entirely explained by the literature, but are technical ones. ... Trump has accentuated that this year by signaling to Republicans that he's against mail-in ballots and that they're corrupt, and by signaling to Republicans as well that the COVID pandemic is not as serious as the scientists say it is. And so Democrats, concerned about their health, are intending to use mail ballots at much higher rates than Republicans are, because Republicans have been pushed away deliberately by Trump from the mail-in ballots. So that now a mail-in ballot by proxy is likelier to be a Democratic ballot, because of underlying circumstances and because of Trump's shaping of the electorate. So his lawyers will know that if they are stopping the count of mail ballots, they are, on balance, almost certainly helping the president.

On how some states have to wait to process mail-in ballots until Election Day

Some [states] say Election Day morning. Some [state laws] even say ... they can't start until Election Day evening. And it has been part of the Republican litigation strategy in 41 states over the past year to prevent state law from allowing more time in advance of the election to open the early arriving ballots.

So the Trump campaign has actually helped make it less likely that those ballots will be counted on time on election night, because if they said you could start two weeks earlier ... if the administrators could do all the verification and simply leave them ready to feed into the machine for counting, they could do that as they came in, as they can, for example, in Florida, because of state law there. ... The Florida vote is expected to be pretty well-known by the end of election night, because Florida will have presorted all the mail-in ballots. That's what state law says there. But the Trump campaign has opposed that method when other states have proposed to change it right now.

The Republican strategy is going to be to challenge each and every mail in-ballot if they can find any reason at all to do so. - Barton Gellman

On how representatives might go about challenging mail-in ballots

Both Democrats and Republicans are allowed to have a representative at the time that these ballots are processed. The Republican strategy is going to be to challenge each and every mail in-ballot if they can find any reason at all to do so. And so the administrator will pull out one ballot from this, this pile of hundreds of thousands in any given state, or millions given the state, and they'll do this by county, I suppose. And the Republican representative will say "Object. Signature doesn't match." And then everyone will sort of squint over the squiggly lines [and], without the benefit of any expert training, have to try to decide is that signature a good match or not a good match? "That postmark is illegible. You can't prove that it was mailed in time." So I think you may see postmarks or missing postmarks or poorly printed postmarks becoming the new sort of hanging chads of this election. That's the way the vote-by-vote challenge is going to go.

On both parties being ready for litigation

The two sides have each hired hundreds of lawyers and recruited thousands of lawyers as volunteers for what they believe is going to be a multistate cluster of litigation on the scale that took place in Florida in 2000, which was monumental. That was one state. The expectation is that there could be several states on which the result hinges and the vote is close, and the margin of litigation is sufficient that both sides are going to pour in all the effort they can in litigating the rules and the vote count.

On the Republican side being free of court supervision for the first time since 1981

This is the first time in 40 years that we're going to have a presidential election without a court supervising the Republican "ballot security operations" on Election Day. Republicans were caught doing all kinds of voter suppression and intimidation in 1981, and a lawsuit against the Republican National Committee placed the RNC under a consent decree, a court order, that forbade it to use many methods of voter purging, voter intimidation. The Republicans had rounded up large numbers of law enforcement and former military people wearing armbands and guns, carrying radios, confronting voters and demanding evidence of their right to vote, warning them that it's a felony to vote when you're not eligible in the correct neighborhood, confronting poll workers who tried to help voters as they're legally allowed to do. This was in New Jersey, but it was a nationwide consent decree. And the methods that had been used in New Jersey were widely known methods and had been used for decades to suppress, in particular, the votes of people of color in this country. ...

And there was a consent decree here that lasted for decades, and it expired in 2018. And this time the Election Day operations of the Republican side are going to be free of court supervision. They're going to be able to decide for themselves how they operate that day, and maybe they'll be sued after the fact, but it will be too late to make much difference in terms of the outcome. The Trump campaign is recruiting what it's calling "an army for Trump." The president's son [Donald Trump Jr.] has gone on television calling for "all able-bodied men and women" — Why able-bodied? What kind of physical confrontation does he have in mind at the polls? — "all able-bodied men and women to stop the election from being stolen by Democrats."

On some of the other ways Trump might contest results

I think there's reasonable concern that when the president and his son are using the rhetoric they're using about the need to secure an election against people trying to steal it, when the president has supporters who are prepared to carry weapons and to appoint themselves into militia-like roles, there's a significant concern that there will be violence or physical disorder at the polls on election night and afterward during the canvass.

Here we get purely into the realm of speculation, but I think with a president like Trump who has shown a complete disregard for boundaries of law and norms, we have to worry also about what he might do that no one's done before. He's the incumbent president. He's the chief law enforcement officer of the country under the Constitution. He's the commander in chief of the armed services. What is he prepared to do in terms of deployment of U.S. forces? Is he prepared to order postal inspectors to seize and impound mail-in ballots on grounds that they have been forged or that there's been an investigation into foreign fraud and therefore all those ballots must be seized and frozen in place and not counted? Is he prepared to send in U.S. marshals or Justice or [Department of Homeland Security] officials from other sub agencies to secure the peace, to secure the ballots, to preserve evidence, ostensibly. There are a lot of ways this could go very badly. And I think that no president has done it before. There are laws that would seem to constrain him from doing that. But I have little doubt that Bill Barr, the attorney general, is capable of finding executive authority for the president to do whatever he likes on Election Day. The question to me is, really, whether he thinks he can get away with it.

On what we can do to prepare for Election Day

The worst case is that the president is ahead on election night and that a fuller count of the vote over coming days and weeks shows that Biden wins. That's a very bad case because you have the possibility of weeks of serious disturbance in between. - Barton Gellman

I think because the mail-in ballots are going to be so much the subject of litigation, I've changed my own mind personally on how I'm going to vote. I'm going to vote in person because I think the worst case is that the president is ahead on election night and that a fuller count of the vote over coming days and weeks shows that Biden wins. That's a very bad case because you have the possibility of weeks of serious disturbance in between.

I think anyone who can volunteer to be a poll worker should do so. I think if you know anyone who is open to reason, you should make sure they know that it's normal and natural and lawful and proper for the count to continue to change after election night and that it's sure to do so this time.

And then think about where you stand in relation to the election. If you were a mayor, you might want to think about how you deploy your police on Election Day to prevent the intervention of outsiders with bad intent. If you are a law enforcement officer, think about how the primacy of your mission to protect the vote, the most fundamental right we have in this country. If you're a member of the military chain of command, you should pause to remember that you have an obligation to disobey unlawful orders and think about ways in which you might be misused during the course of an election.

If you're a civil servant, we need you more than ever, I think, to say "no" to the wrong thing, to do the right thing, when you're asked to do the wrong thing. You go down the list. There are a lot of people who have an influence over, broadly speaking, this moment of transition in this country between one presidential administration and another. And it may be a second term for Trump. I certainly don't rule out that he could be reelected legitimately. But we have to make sure that the vote is counted, that all the votes are counted and that the election is decided by the voters and not by some other machinations.

Lauren Krenzel and Seth Kelley produced and edited this interview for broadcast. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the Web.

Copyright 2020 Fresh Air. To see more, visit Fresh Air.

DAVE DAVIES, HOST:

This is Fresh Air. I'm Dave Davies, in today for Terry Gross. If you're following the presidential campaign, you know that this is an election season unlike any in our lifetimes. Our guest, Atlantic staff writer Barton Gellman, says the 2020 vote might bring more than just turbulence and controversy. He writes that the coronavirus pandemic, a reckless incumbent, a deluge of mail-in ballots, a vandalized Postal Service, a resurgent effort to suppress votes and a trainload of lawsuits are bearing down on the nation's creaky electoral machinery. In an article in The Atlantic's November issue, Gellman examines scenarios in which contested counts in battleground states might embolden state legislatures to set aside their state's popular votes and select their own partisan representatives to the Electoral College. That would trigger a constitutional crisis that the country's laws are ill-equipped to resolve clearly and peacefully.

Barton Gellman has spent decades as a journalist covering foreign and military affairs, national security and other subjects. He won the 2014 Pulitzer Prize for Public Service for his coverage of the National Security Agency and Edward Snowden. His most recent book is "Dark Mirror: Edward Snowden And The American Surveillance State." He spoke to me yesterday from his home in New York about his article in The Atlantic, "The Election That Could Break America."

Bart Gellman, welcome back to FRESH AIR. Good to have you.

BARTON GELLMAN: Great to be back.

DAVIES: You've been reporting for so many years on the Middle East, on foreign policy, in recent years on national security and domestic surveillance. What prompted you now to focus on the election process?

GELLMAN: I started looking at the statements that the president had made about the election and about his intentions during the election, his confidence in the system. And it finally occurred to me that this was a man who was not prepared to concede defeat if it came under any circumstances. And I decided to pull on that thread and see what the implications are for our electoral system if you have a candidate and in particular an incumbent who refuses to concede. And it turns out that that decision alone, that determination alone, has a cascading effects on the system.

DAVIES: Right. Well, of course, the president, when asked, has declined to state that he will respect the outcome of a vote that doesn't go his way. He's done that a lot. You say that he will never concede under any circumstance. How can you be so sure?

GELLMAN: I take some pains in the article to try to explain why I'm so sure because I think it's such an important foundation for the piece. But take a look at what the president has said, first of all. He's been offered the opportunity multiple times in the last campaign and in this one to express his willingness to lose. That's really what it comes down to. Are you prepared for the possibility that the people will vote you out? And he has always declined to say that and he's gone further than that. It's not a maybe. He said in a little stunt in the 2016 election that he was fully prepared and was offering a guarantee here and now to the American people that he would accept the results of this great election if I win, he said. He has this time not only in informal remarks, but in his formal written acceptance speech for the Republican nomination on August 24, the president said the only way that we could lose is if the election is rigged. The American people don't get a say in this as far as Trump's sort of frame of reference has it. It's either going to be vote for him or the vote was crooked. That's a man who won't leave. There are many aspects of his past behavior and, frankly, his pathology that lead me to think this is an immutable decision on his part.

DAVIES: Now, you make the point in this piece that the willingness of the losing candidate to concede defeat in a presidential election is more than an exercise in civility. And you point to the conclusion of the Bush-Gore recount dispute that went on for weeks in 2000. Explain your point here.

GELLMAN: The thing is that concessions by the defeated candidate are how we end elections. That's the moment when the contest ends. There is not an all-powerful umpire who gets to blow the whistle and say the score is final, now, boys. You win, you lose. Get over it. We don't have that in our system. The system presumes good behavior and presumes that a rational and well-meaning candidate will accept reality when it comes. Some people would think, well, that's not true. The Supreme Court ended the 2000 election, and it did end the recount in Florida in 2000, but there were still six days left before the Electoral College met. And Al Gore had constitutional options to continue the fight even after the Supreme Court ended the recount, and he did not. The day after the Supreme Court decision on December 13, 2000, that was the day that the race ended because that's the day that Al Gore came out and said, I accept the finality of this decision, and for the good of the country, for the unity of the country, I recognize George Bush as our president-elect. That is a crucial, critical moment, the recognition. It's actually, as the political scientists would say, constitutive of the authority of the new president that his defeated opponent sort of bends the knee.

DAVIES: Right. So you could have a situation where if there are contested outcomes in several battleground states, you know, you could have multiple lawsuits in state courts that are appealed to federal courts, and that can take a long time. And putting an end to it with both parties recognizing an outcome is the simplest way to shut it down. Otherwise, it could really go on, right?

GELLMAN: Right. Well, it can go on in court, and it can go on otherwise. We're used to disputes of a certain kind in this country going to the courts. But it's an unnatural act for an unelected judge to be the decider on the outcome of an election. They can judge procedure. They can judge whether someone is following the rules in the count. They can judge whether the conduct of the election comports with election law and the Constitution. But deciding the count is beyond the court. And there are other forums (ph) of decision that become more important as time goes on. If Trump can run out the clock, if he can keep the count in doubt, even if a county or state election official says we've got the count, it's this many for Biden and this many for Trump, if he keeps that in controversy long enough, then the states are going to start to run into time pressure to appoint their electors to the Electoral College, which meets on December 14.

DAVIES: You say that a lot of people, including Joe Biden, have misconceived the nature of the threat posed by Donald Trump refusing to concede. What's the misconception? What's the deeper threat?

GELLMAN: It's a subtle difference but an important one. The usual way people say it is that they fear that Trump will refuse to leave the White House if he loses. He'll refuse to give up the reins of power. And Joe Biden says, well, that's an easy one. If he loses and he stays there, someone will evict him. That will most likely be the Secret Service or the military. And they'll say, excuse me, sir, but your lease has expired on this office. It's 12:01 on January 20, and we're going to now assist you in departing. That works if there is a clear winner or loser. The greater danger is that Trump is capable of using the powers of the presidency and the powers of his invincible decision not to concede, to raise doubt whether a winner or loser has yet been established, that he can prevent the achievement of a decisive outcome, which is a far greater risk to the American system.

DAVIES: So speaking in the broadest terms, what's the scenario that might lead to an election result that ignores or discounts the popular vote in key battleground states?

GELLMAN: We are accustomed to the idea that we choose a president by the popular vote in each state - that is to say, if I'm in Pennsylvania and the majority of my fellow Pennsylvanians vote for Joe Biden or Donald Trump, then that's the person who gets the electoral votes, the 20 electoral votes that represent Pennsylvania in the Electoral College. And the first one to 270 electoral votes wins the election. The thing is, nothing in the Constitution says that there has to be a popular vote at all.

The Constitution says that each state legislature may decide in the matter of its own choosing how the state's electors will be appointed. And Donald Trump's campaign has noticed that, is aware of it and is talking about the possibility that if the electoral count is still in dispute, if Pennsylvania is called for Biden but Trump continues to insist that the vote count is fraudulent, that it's marred by fraud, that it's been rigged and is not legitimate, then the Trump campaign could ask its Republican allies in the state Legislature to take back their power under the Constitution to directly appoint electors for Trump. So they would set aside the popular count by asserting that it was hopelessly poisoned by fraud, and they would simply appoint Trump electors.

If that happened, then the Democratic governor of Pennsylvania would be likely to certify the actual popular vote and send a slate of Biden electors to the Electoral College. And so on December 14, there would be two groups of 20 men and women, each casting the same electoral votes in opposite directions, and it would then be up to Congress to decide on January 6, during the formal count, which votes counted. And that's not going to be an easy process.

DAVIES: Have we ever had a circumstance or - where states did just what you described, decide that either we don't trust the popular vote or it's in dispute or there are questions about its integrity so we're just going to decide as legislatures? When, if ever, has that happened?

GELLMAN: It came very, very close to happening most recently in the year 2000 during the Bush v. Gore recount, when the Republican Florida Legislature passed resolutions out of committee in both Houses to simply appoint Republican electors while the litigation was underway about a recount, while the fight was still being fought in court.

The Republican Legislature said, well, we're not going to stand by and wait for this. And they passed, out of committee, resolutions that would have appointed Bush electors directly. They were going to vote on the floor of both Houses, and it was going to pass, based on the pre-count. They were going to pass it on December 13. But that's the day that Al Gore came out and conceded defeat. So it came very close in 2000.

The only time I know of that it did happen is in the 1876 election, when four states had controversies about who their electors were. Samuel Tilden, the Democrat, had won the popular vote. Rutherford Hayes won the disputes in a special tribunal that Congress invented for the purpose to decide which electors would count. Hayes won those disputes, and so he was named president by this tribunal, which has only existed once in history.

Tilden did not accept the result. The Democrats stalled for time. And two days before Inauguration Day, which that year was in March - two days - the dispute was still alive. Both sides were planning on inaugurating their candidate, two days later, as president. And it was only a last-minute concession by Tilden in arrangement for a kind of repugnant deal that ended the Reconstruction and, under the threat of martial law being declared by his predecessor, by the incumbent, Ulysses Grant, only two days before did Tilden concede. And the country came very, very close to a terrible outcome.

DAVIES: But it's fair to say there's been no case in modern times where a state legislature has denied the popular vote. I mean, I think there is a commonly understood norm that, for the Electoral College, the person that voters decide who that state's electors go to - it would be a major departure for a state to do that, fair to say, right?

GELLMAN: Oh, very much so. It's more than a norm. I haven't checked every state law, but I imagine in every state, there is a law passed by the legislature which states that electors shall be chosen by popular vote of the people of the state. And it would be legally questionable whether the state legislatures could take back their constitutional power to appoint electors after the vote had already taken place.

And it would only happen, I think, in circumstances when the legislature was prepared to say that the vote could not actually be counted, that the count had been spoiled and it was up to the legislature to reflect the people's will. That would be the argument made by the Trump camp.

DAVIES: We're going to take a break here. Let me reintroduce you. Barton Gellman is a staff writer for The Atlantic. His article is "The Election That Could Break America." We'll be back after this short break. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And if you're just joining us, our guest is Barton Gellman. He's a staff writer for The Atlantic, and he has an article in the November issue about the prospect of a constitutional crisis in the presidential election. It's called "The Election That Could Break America."

So there is this provision that states could decide to ignore the popular vote and choose their own electors on a partisan basis, and that would presume a big, big problem with the electoral vote. And I think the scenario that's being considered now is problems arising from widespread use of mail-in ballots. Now, the president has been attacking widespread mail-in ballots, claiming they invite fraud. No real evidence, I think, among most election experts that there is any widespread fraud in mail-in balloting. Why is this a target of the president?

GELLMAN: I would say it a little more strongly than you just did. I would say that nobody - despite many, many claims and many, many demands for evidence in lawsuits - nobody has introduced any evidence whatsoever of meaningful fraud in mail-in ballots or any other kind of ballots in American history. The - voter fraud is a pretext that is used by Republicans for decades now to try to suppress votes of their political opponents.

The leading Supreme Court case having to do with voter fraud had a unanimous finding by all the justices that, in the state of Indiana - which was the state under issue at that point - there had never in the history of the state been any example of voter fraud. And the best scholarly estimates are that there may have been 31 votes cast out of 1 billion in the elections between 2000 and 2014 - so 31 out of 1 billion votes - may have been fraudulent. It's just - it's not a thing that happens. It has been invented out of whole cloth by the president.

DAVIES: Well, I have to say, I mean, there was the congressional election in North Carolina where, I believe, several hundred absentee ballots were regarded as fraudulent, right? I mean, it's not in the tens of thousands, but it does happen in some cases in small numbers, right?

GELLMAN: There was an illegal collection of votes, which is slightly different. The - one candidate employed someone who was illegally gathering together and collecting mail votes. It's true that there are vanishingly rare cases in which someone attempts fraud. And there has never been a case when, even if the fraud had not been caught, that it would have changed the results of the election. So there is not a legitimate threat to election integrity from fraud.

It is something that has been made up by Trump and particularly attached to the idea of mail-in ballots, which ironically are probably slightly more secure because there are more verification methods used in most states to confirm the eligibility of the voter and the integrity of the vote for mail ballots than there are in-person ballots. You have signature requirements, in some cases witness requirements, affidavits and so on. The president has simply asserted out of whole cloth that mail ballots are going to lead to widespread fraud. He is doing that because he knows that mail ballots take longer to count.

And his strategy is to say, on Election Day, that the count on election night is the final count, that we need to know the result on election night, that if he's leading in a state on election night and then the count starts to change as additional votes are counted - in a phenomenon known as the blue shift - then that's illegitimate, that that means that someone is trying to forge or steal or fraudulently add ballots, that votes for his opponent are, quote-unquote, "coming out of nowhere" and should not be counted. And he's going to seek to stop the count on election night.

DAVIES: Right. And I think the point that mail-in ballots tend to be disproportionately Democratic and are likely to be even more disproportionately Democratic in this election is an important part of the president's thinking, isn't it?

GELLMAN: Well, the president actually has shaped that. It is true that for about 20 years now, the so-called overtime count - which is the count of the late-reporting precincts, the provisional ballots and the mail-in or absentee ballots - that overtime count has shifted towards Democrats for reasons that are not entirely explained by the literature. But they are tactical ones I could get into if you wanted. Trump has accentuated that this year by signaling to Republicans that he's against mail-in ballots and that they're corrupt and by signaling to Republicans as well that the COVID pandemic is not as serious as the scientists say it is.

And so Democrats concerned about their health are intending to use mail ballots at much higher rates than Republicans are because Republicans have been pushed away deliberately by Trump from the mail-in ballots. So that now a mail-in ballot, by proxy, is likely - likelier to be a Democratic ballot because of underlying circumstances and because of Trump's shaping of the electorate. And so his lawyers will know that if they are stopping the count of mail ballots, they are, on balance, almost certainly helping the president.

DAVIES: We need to take a break here. Let me reintroduce you. Barton Gellman is a staff writer for The Atlantic. His article, "The Election That Could Break America," is in the November issue of the magazine and available online at theatlantic.com. He'll be back to talk more about the possibilities for a contested election after a break.

I'm Dave Davies, and this is FRESH AIR.

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DAVIES: This is FRESH AIR. I'm Dave Davies, in today for Terry Gross. We're speaking with Atlantic staff writer Barton Gellman. He's written a story considering the prospects for a contested presidential election this year in which some state legislatures decide to ignore disputed popular votes in their states and send their own partisan delegations to the Electoral College. His article appears in the November issue of the magazine. It's called "The Election That Could Break America."

So you have this scenario in which the machine vote, which is reported immediately because it's automated, will skew in the direction of President Trump and Republicans, but that as mail-in ballots are counted, the result will tend to shift towards Democrats. And, of course, the tricky part is that it can take a long time to count lots and lots of mail-in ballots, giving, you know, the president and his allies more time to claim that ballots have come from nowhere or that this can't be reliably calculated. What are some of the reasons that it takes so long to count mail-in ballots?

GELLMAN: There are going to be tens of millions of mail-in ballots this year. It is unlawful in most states for the election administrators to start this process of processing the ballots, of confirming signatures, confirming addresses, confirming bar codes, all that. They can't start that before Election Day; some say Election Day morning; some even say in some state laws they can't start until Election Day evening. And it has been part of the Republican litigation strategy in 41 states over the past year to prevent state law from allowing more time in advance of the election to open the early arriving ballots. So the Trump campaign has actually helped make it less likely that those ballots will be counted on time on election night because if they said you could start two weeks earlier - I mean, there are mail-in ballots arriving right now. If the administrators could do all the verification and simply leave them ready to feed into the machine for counting, they could do that as they came in as they can, for example, in Florida because of state law there, then things would come in faster on election night. The Florida vote is expected to be pretty well known by the end of election night because Florida will have pre-sorted all the mail-in ballots. That's what state law says there. But the Trump campaign has opposed that method when other states have proposed to change it.

DAVIES: Right. Now, so opening, I mean, there's just the procedural task of opening the outer envelope that the mail-in ballots arrive in. But there's more to this - right? - because partisan representatives from the campaigns can be there when these envelopes are opened. And there are bases for challenging them, which have to be resolved before the vote can be counted. What are some of the bases for challenging mail-in or absentee ballots as they come in?

GELLMAN: So both Democrats and Republicans are allowed to have a representative at the time that these ballots are processed. The Republican strategy is going to be to challenge each and every mail-in ballot if they can find any reason at all to do so. And so the administrator will pull out one ballot from this pile, this pile of hundreds of thousands in any given state or millions in any given state, and they'll do this by county, I suppose. And the Republican representative will say, object, signature doesn't match. And then everyone will sort of squint over the squiggly lines and without the benefit of any expert training have to try to decide, is that signature a good match or not a good match? That postmark is illegible. You can't prove that it was mailed in time. So I think you may see postmarks or missing postmarks or poorly printed postmarks becoming the new sort of hanging chads of this election. That's the way the vote-by-vote challenge is going to go.

DAVIES: Well, there are other things, too. I mean, someone can sign in the wrong place, sign in the place where they're supposed to print or print in the place where they're supposed to sign or, you know, put the birth date in the wrong place. There are a lot of ways to fill out a form and get it wrong. All of that can result in challenges, and they have to be resolved one at a time, right?

GELLMAN: Right. There are legal questions like, you know, what is the standard here? Are you trying to make the best judgment based on the evidence, on the intent of the voter? Well, yes, he signed it in the wrong spot but clearly intended to sign and confirm the affidavit or clearly indicated a vote for Trump or Biden. Or do you say that the voter must follow every instruction literally and perfectly, or the vote won't count? If I fill out my ballot and put it in the outer envelope and forget to put the inner envelope - the inner envelope is there for my own privacy. It does not actually add security in any way that I can think of to the voting process. But in some states, for example, in Pennsylvania, there's a recent ruling that if a voter puts this ballot in the outer envelope without an inner security envelope, that is to say, if they send in a naked ballot, then it will not be counted. And so there's an estimated 100,000 votes that are likely to be sent in based on precedent without the security envelopes. And those are simply going to be thrown away as if the voter had never cast a ballot at all.

DAVIES: And it's worth noting that in that state, the margin was 44,000 votes in the last election.

GELLMAN: Right. So you want to pay attention to the rules. If you're going to vote by mail, you want to read the instructions carefully, read them twice and follow every step.

DAVIES: We need to take another break here. Let me reintroduce you. Barton Gellman is a staff writer for The Atlantic. His article is "The Election That Could Break America." It's in the November issue of the magazine and is available online at theatlantic.com. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And we're speaking with Barton Gellman. He's a staff writer for The Atlantic, and he has an article in the November issue about the prospect of a constitutional crisis in the presidential election. It's called "The Election That Could Break America."

It can take an army of workers and lawyers to challenge all these, you know, ballots in - like, there are 67 counties in Pennsylvania alone. Do you see the two sides lawyering up and preparing to launch challenges?

GELLMAN: The two sides have each hired hundreds of lawyers and recruited thousands of lawyers as volunteers for what they believe is going to be a multistate cluster of litigation on the scale that took place in Florida in 2000, which was monumental. That was one state. The expectation is that there could be several states on which the result hinges and the vote is close and the margin of litigation is sufficient that both sides are going to pour in all the effort they can.

DAVIES: Right. And everybody had a dry run in the primaries when many states, for the first time, took large numbers of mail-in ballots because of the COVID pandemic. And so lawyers had a chance to kind of see how this would work and see ways that they could raise objections. You came across a memo to this effect, as I recall.

GELLMAN: I did. In Pennsylvania, a lawyer for the Republican Party of Pennsylvania sat in with a Trump lawyer and another observer and just watched the count - not coincidentally, in Philadelphia County because Philadelphia is a center of Democratic support in the state, in a swing state. And they watched carefully as the votes came in and as the mail-in ballots were inspected and opened. And they found signatures in the wrong spot. People printed their names where they should have signed. People put their birth date instead of the signature date, where people put in an impossible date because they got the date wrong and the date was after the election.

And so they were making long lists of ballots they could have challenged and reasons why they could have challenged them. They didn't challenge them. It was a primary election, and they had no dog in that fight. But they were practicing. They were getting ready for the big fight, which is going to come in November.

DAVIES: You know, it's worth noting that in the primary in New York City, there was one congressional election where it took a couple of months to go through all of these ballots, one at a time. That was in a Democratic primary. There were no Republicans involved. And the two, you know, Democratic candidates wanted to get every advantage they could. And it meant, you know, these tables where people went through all of these - in that case, I guess - tens of thousands of ballots, one at a time. If there are millions, this really could take a long time, couldn't it?

GELLMAN: It could. There's a combination of factors. I mean, if one or both parties are prepared to battle every single vote, ballot by ballot by ballot, and if the status of litigation in courts allows that, then sure, it's going to take a very long time. There - it's also relevant what kind of local administration you've got.

There are 10,500 local jurisdictions, most of them at the county level, around the country that are actually administering this election. And many of them are very good and doing a professional job. Many of them also underresourced. Some of them are highly partisan. Some of them are simply incompetent. They're just not very good at their job, and they haven't thought through the workload that they're going to have imposed on them now. And so even without the help of a sort of litigious campaign, it might take them a while.

DAVIES: What are some of the other steps that the parties are taking to affect the voting process apart from, you know, dealing with mail-in ballots?

GELLMAN: Well, this is the first time in 40 years that we're going to have a presidential election without a court supervising the Republican, quote-unquote, "ballot security" operations on Election Day. Republicans were caught doing all kinds of voter suppression and intimidation in 1981, and a lawsuit against the Republican National Committee placed the RNC under a consent decree, a court order, that forbade it to use many methods of voter purging, voter intimidation.

The Republicans had rounded up large numbers of law enforcement and former military people wearing arm bands and guns, carrying radios, confronting voters and demanding evidence of their right to vote, warning them that it's a felony to vote when you're not eligible in the correct neighborhood, confronting poll workers who tried to help voters, as they're legally allowed to do.

This was in New Jersey, but it was a nationwide consent decree. And the methods that had been used in New Jersey were widely known methods and had been used for decades to suppress, in particular, the votes of people of color in this country. They dated back to the Hayes-Tilden election in 1876, where Tilden actually won the popular vote in part by suppressing the votes of Black people. And there was a consent decree here that lasted for decades, and it expired in 2018. And this time, the Election Day operations of the Republican side are going to be free of court supervision.

They're going to be able to decide for themselves what - how they operate that day. And maybe they'll be sued after the fact, but it will be too late to make much difference in terms of the outcome. The Trump campaign is recruiting what it's calling an army for Trump. The president's son has gone on television calling for, you know, all able-bodied men and women - why able-bodied? What kind of physical confrontation does he have in mind at the polls? All able-bodied men and women to stop the election from being stolen by Democrats.

DAVIES: Barton Gellman is a staff writer for The Atlantic. His article is "The Election That Could Break America." We'll be back in just a moment. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And if you're just joining us, we're speaking with Barton Gellman. He's a staff writer for The Atlantic, and he has an article in the November issue about the prospect of a constitutional crisis in this November's presidential election. It's called "The Election That Could Break America." We were talking about efforts to influence the vote in a number of ways, including, you know, ballot security operations in which partisans show up at polling places and attempt to question or intimidate people. I'm wondering if you see street violence as something that is possible or likely. And, you know, I remember the - what was referred to as the Brooks Brothers riot during the Florida recount. You want to recall that for us and tell us kind of what you think the prospects are November 3.

GELLMAN: So in the 2000 election, Gore asked for a recount and wanted to count every vote in Florida, and Republicans liked it fine the way the initial count worked out, which was very small majority for Bush. And so they wanted to stop the recount. In particular, they wanted to stop it in Miami-Dade County where, like all urban areas, the preponderance of the votes are Democratic. So they called it the Brooks Brothers riot because paid campaign staffers for Bush brought in a bunch of volunteers, all wearing suits and looking like lawyers who pushed and shoved and crowded into a small election office where the votes were being recounted and kicked and, you know, sort of started a general melee. And for a significant period of time, not just an hour or two, actually prevented the count from continuing in Miami-Dade County. They were playing for time, and they won.

DAVIES: And so what do you think could happen November 3?

GELLMAN: Well, I think there's reasonable concern that when the president and his son are using the rhetoric they're using about the need to secure an election against people trying to steal it, when the president has supporters who are prepared to carry weapons and to appoint themselves into militia-like roles, there's a significant concern that there will be violence or sort of physical disorder at the polls on election night and afterward during the canvass. And here we get purely into the realm of speculation, but I think with a president like Trump who has showed a complete disregard for boundaries of law and norms, we have to worry also about what he might do that no one's done before. He's the incumbent president. He's the chief law enforcement officer of the country under the Constitution. He's the commander in chief of the armed services.

What is he prepared to do in terms of deployment of U.S. forces? Is he prepared to order postal inspectors to seize and impound mail-in ballots on grounds that they have been forged or that there's been a - there's an investigation into foreign fraud and therefore all those ballots must be seized and frozen in place and not counted? Is he prepared to send in U.S. Marshals or Justice or DHS officials from other subagencies to secure the peace, to secure the ballots, to preserve evidence ostensibly? There are a lot of ways this could go very badly, and I think that no president has done it before. There are laws that would seem to constrain him from doing that. But I have little doubt that Bill Barr, the attorney general, is capable of finding executive authority for the president to do whatever he likes on Election Day. The question to me is really whether he thinks he can get away with it.

DAVIES: Are Democrats thinking about this? And is there anything they can do in planning to deal with it?

GELLMAN: I do think that forewarned is forearmed. I am not counseling despair and doom. I think that this is not going to be a normal election. I think that preserving its legitimacy is going to take extra effort this year. Democrats are certainly aware of Trump's proclivities. They're certainly concerned about possibilities that he will cheat or try to hang on to power by means other than winning the most votes and counting all the votes. Trump has made it absolutely crystal clear that he does not want all the votes to be counted. And so the Democratic mobilization efforts are trying to think ahead. And it's a very hard thing to do to think ahead to what the president might do and how they might respond.

DAVIES: You say in the piece, and I think it's self-evident, that we need to change the laws. I mean, a simple, you know, solution would be to make the winner of the national popular vote the president. But in any case, that's not going to happen now or before the election or before this gets sorted out. Short of that, you say that there are things that we should all do in our roles to prepare for this. Maybe walk through some of that stuff. What should those of us who are voters or journalists or, you know, election administrators or lawmakers be doing, thinking about?

GELLMAN: Sure. So there are two piles of things to do to consider. One is marked later, real reforms that could get - keep us from getting into this sort of mess, as you mentioned. So you would certainly want to clear up the murky parts of the Electoral Count Act so you know whose votes actually govern if there are disputed votes in the Electoral College. You'd like to fund election administrators so that they could operate their counting process securely and more efficiently and more quickly on Election Day. You'd want to allow mail-in ballots to be opened and processed before election night. You know, ideally, we would get a close approximation of the final result on the first day. That's not going to happen this time. And so I think because the mail-in ballots are going to be so much the subject of litigation,

I've changed my own mind personally on how I'm going to vote. I'm going to vote in person because I think the worst case is that the president is ahead on election night and that a fuller count of the vote over coming days and weeks shows that Biden wins. That's a very bad case because you have the possibility of weeks of serious disturbance in between. I think anyone who can volunteer to be a poll worker should do so. I think if you know anyone who is open to reason, you should make sure they know that it's normal and natural and lawful and proper for the count to continue to change after election night and that it's sure to do so this time. And then think about where you stand in relation to the election.

If you are a mayor, you might want to think about how you deploy your police on Election Day to prevent the intervention of outsiders with bad intent. If you are a law enforcement officer, think about how - the primacy of your mission to protect the vote, the most fundamental right we have in this country. If you're a member of the military chain of command, you should pause to remember that you have an obligation to disobey unlawful orders and think about ways in which you might be misused during the course of an election. If you're a civil servant, we need you more than ever, I think, to say no to the wrong thing, to do the right thing when you're asked to do the wrong thing.

And, you know, you go down the list - there are a lot of people who have an influence over, broadly speaking, this moment of transition in this country between one presidential administration and another. And it may be a second term for Trump. I certainly don't rule out that he could be reelected legitimately. But we have to make sure that the vote is counted, that all the votes are counted and that the election is decided by the voters and not by some other machinations.

DAVIES: We've talked about a lot of really troubling scenarios. Are there ones that are more positive? I mean, could this go well?

GELLMAN: Sure, it can go well. There are way too many avenues for it not to go well for comfort right now. But Trump could win a clear victory. That would be a satisfactory result. Biden could win by so much on election night with mail-in ballots expected only to accentuate his victory that it would be hard for Trump to dispute the vote in enough states to make a difference.

Trump could somehow, unexpectedly hold back from using most of his disruptive powers to interfere with the legitimate proceedings of the election. I do not believe that any scenario that requires goodwill and good faith by Trump is going to come through. Trump is making as absolutely plain as he can that he will fight the mail vote, that he will try to get the vote count stopped and that he will not accept any result that is not a victory for him.

DAVIES: Barton Gellman, thank you so much for speaking with us again.

GELLMAN: Thank you for having me.

DAVIES: Barton Gellman is a staff writer for The Atlantic. His article, "The Election That Could Break America," is in the November issue of the magazine and available online at theatlantic.com.

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