The Coming Crisis of Legitimacy

In normal times, it would seem outlandish to worry that an American president might refuse to concede defeat upon losing his bid for reelection. This year it is not. Even though he won in 2016, Donald Trump falsely claimed that he was the victim of voter fraud. And when he sat down for an interview with Fox News’ Chris Wallace this July, he said: “I think mail-in voting is going to rig the election. I really do.”

Visibly alarmed, Wallace asked whether Trump would accept the outcome of the election if he should lose.

“I’m not going to just say yes. I’m not going to say no. And I didn’t last time either,” Trump responded.

The prospect that Trump will lose but try to remain in office has spooked analysts. The question on their mind is how many Americans would go along with such a blatant attack on democratic institutions.

A new poll by the Campaign Legal Center and Protect Democracy (where I serve as a senior adviser) provides a preliminary answer. A clear majority of Americans, including six out of every 10 Republicans, said they were confident that “votes for president in November will be counted fairly, accurately and securely.” But, crucially, confidence in the election is strongly conditional on its outcome. Only one in three Americans who plan to vote for Trump said that if Joe Biden is declared the victor, that would be “because he receives more votes than Donald Trump.” More than two in five said it would be “because voting systems are rigged and voter fraud is committed.”

What most surprised me about the poll, though, is that many Biden supporters also said they would doubt the validity of the election if they didn’t like the outcome. Just one in five Biden supporters said that a win by Trump would be because he received more votes than Biden; nearly two in three said it would be due to “voter suppression and foreign interference.”

Doubt and suspicion are not equally justified on both sides. There is much more evidence of voter suppression affecting the ability of American citizens to make their votes count than there is of voter fraud occurring at significant scale. And in the bigger picture, Trump is more likely to win the election despite gaining fewer votes because, according to forecasting models, the Electoral College strongly favors him.

But engaging in false equivalencies is not necessary to recognize that these findings are a dark sign for what awaits us come November. Whether Biden or Trump emerges as the winner, millions of Americans will likely believe that their candidate was robbed.

Underlying all this doubt is the fact that America’s voting system is indeed marred by obstacles to participation, including long lines (particularly in minority neighborhoods) and the absurdity of holding Election Day on a workday. The pandemic has added an additional layer of difficulty, as voters are wary of participating in person. Millions will vote by mail for the first time; some ballots may get lost in transit, arrive too late to be counted, or be disqualified because they do not meet formal requirements. Possible foreign interference represents yet another cause for concern.

Given this reality, how can Americans know if the outcome is free and fair? And how can they distinguish between an election tarnished by imperfections and one that has been so compromised, its outcome is illegitimate? I put that question to a number of the country’s leading election experts and political scientists. They couldn’t provide a simple checklist, but they did have some advice.

Above all, they urged voters to be alert to how politicians might try to sow confusion. According to Trevor Potter, the president of the Campaign Legal Center and a former chairman of the Federal Election Commission, Democrats are likely to use mail-in and absentee ballots in much greater numbers than Republicans. As a result, the votes that are counted on Election Night could skew in Trump’s favor even though he is headed for defeat. Under such a scenario, Potter warned, “Trump is likely to argue that absentee ballots are fraudulent and that the election is being stolen.” Ignore him.

They also advised voters to distinguish between ordinary forms of electoral malfunction and an extraordinary attack. As in virtually every American election, voter suppression may take place in some form. This is manifestly unjust. But, Potter cautioned, “unless the elections are extremely close, that should not be seen as undermining the legitimacy of the election’s outcome.” If voting machines were hacked en masse, or if the federal government issued stay-at-home orders that applied only in major cities, however, that would signal illegitimacy.

Daniel Ziblatt, a government professor at Harvard and a co-author of How Democracies Die, stressed that voters should rely on data and impartial umpires, not anecdotes and partisan activists: “You’re likely to hear about something suspicious going on in some place. Pay attention, but don’t be swayed by that. If something bad is really going on, we will get reliable data to prove it.”

Jess Marsden, a counsel at Protect Democracy who specializes in election law, agreed. “The average election official has worked seven previous elections. These people aren’t partisan hacks; they’re serious professionals working at the state and local level. If they say the results are legitimate, that means a lot.”

The final piece of advice is perhaps the most important: Look at the totality of the evidence rather than focusing on a few specific issues. “It really comes down to common sense,” David Shimer, the author of Rigged: America, Russia, and One Hundred Years of Covert Electoral Interference, told me. “Are my ballots being counted in a timely fashion? Are political leaders trying to make the election more or less stable? Are they declaring victory without knowing the full count of the votes? … In its totality, those things should be relatively clear.”

Shimer emphasized that any concerted attempt to rig the election would likely produce a clear trail of evidence. “When an election is blatantly rigged,” he said, “that is identifiable. There are ballot counts that don’t add up. There are widespread images online of blatant corruptions of voting processes. These things are not typically in the shadows.”

No matter who wins the election, millions of Americans are likely to doubt that its outcome is fair. Less than two months from now, American democracy could face one of the biggest tests of its legitimacy in living memory.

But although the experts did not exactly set me at ease, their overall message was reassuring: “The instinct of the American people should be to trust in the outcome of our election,” Marsden said. “When you actually look at the details of how elections are run—from security features to audits to transparency measures to legal guardrails—the list of fail-safes is quite long.”

Undermining public confidence in American elections is easy. Rigging them in favor of a particular candidate is much harder.