Even without Donald Trump on the ballot, American elections tend to create conflict. America is the only proper presidential democracy in which the person who wins the most votes does not necessarily win power. The two-month gap between voting and election certification in Congress is the most drawn-out anywhere. Complexity invites legal challenges, which add to the complexity. For all those reasons, American elections demand patience and trust. Unfortunately, the country comes joint last among the G7 on trust in the judiciary and dead last on belief that its elections are honest.
And then there is Mr Trump. At the debate in Philadelphia this week the former president was angry and aggrieved. He repeated his false and outrageous claim that the election in 2020 was stolen—an assertion that nearly 70% of Republican voters say they endorse. He and his party are gearing up to wage the post-election war a second time. Both parties argue that victory for the other side would threaten American democracy. For Mr Trump personally the stakes are even higher: if he loses he could go to prison. If the election is not close, perhaps America might avoid another toxic transfer of power. Unfortunately for America’s increasingly beleaguered democracy, by our reckoning this presidential race is tighter today than any since polling began.
How messy will it get? There are three possible outcomes. Start with the extremely unlikely one, which is a vote so close that Kamala Harris and Mr Trump tie in the electoral college. Were this to happen, the next president would be picked by the House of Representatives, with each state wielding one vote. Even if Ms Harris won the popular vote on November 5th, Mr Trump would almost certainly become president. That would be fair in the sense that it would follow the rules, but Democrats would be furious.
The second outcome is a Trump win. Democrats could bring legal challenges in close states where Ms Harris lost. Some of these might end up at the Supreme Court, where three justices appointed by Mr Trump would have to adjudicate their merits. Three of the conservative justices worked on George W. Bush’s legal team back in 2000 on Bush v Gore. That would make it hard to persuade Ms Harris’s supporters that decisions favouring the Trump campaign were impartial. After the court’s rulings on abortion and presidential immunity, Democrats have come to view the justices as Republican politicians in robes. Nevertheless, most elected Democrats would probably accept the rulings, if more grudgingly than in 2000.
However, if enough Democratic lawmakers were really convinced the courts had acted unfairly, they could try to block certification of the result in Congress, following the precedent set by Republicans in 2021. Then, 139 House members and eight senators (all Republicans) voted to reject the results. A reform of the Electoral Count Act, passed two years ago, raises the threshold, so that 20 senators and 87 members of the House would have to object. In the unlikely scenario that those preliminary votes passed, Democrats would probably lose the subsequent full votes of both chambers. All this is possible, but the most probable outcome, if Mr Trump were to win the election, is that Ms Harris would concede, taking the wind out of any Democratic challenge to the result.
If Ms Harris wins, Mr Trump will not be so gracious. In that third scenario, the complexity of America’s voting system collides with the MAGA conspiracy machine. The Republican National Committee has pre-emptively filed more than 100 election lawsuits in the states to create a paper trail in preparation to fight the result. As a legal strategy this would probably fail again, as it did in 2020. Fortunately, the governors of key swing states are not election-deniers. Lawyers who might be tempted to bring conspiracy theories to court ought to be deterred by the example of Rudy Giuliani, a Trump bagman who was bombarded by lawsuits. If some cases do get to the Supreme Court, John Roberts and the three Trump-appointed justices may well be keen to demonstrate their independence by rejecting weak challenges. Democrats might yet come to see the Supreme Court as a guarantor of democracy.
Yet a new “stop the steal” movement could fail legally while succeeding politically. In the last election a shocking number of House Republicans voted to reject the result. Since then the party has only become more beholden to Mr Trump. Members either sincerely believe the other side wins only when it steals elections, or go along with that idea in public. Those who refuse—Liz Cheney, Mitch McConnell, Mike Pence, Mitt Romney—have been sidelined. If congressional Republicans did indeed secure a vote to overturn the election, they would probably lose. But the retailing of conspiracies could make the stolen-election myth even stronger.
One possible consequence of this myth is political violence. The Capitol will be so well policed in January 2025 that there will be no repeat of the riots on January 6th. But local police, the Secret Service and the FBI will have to prepare for protesters descending on statehouses, and for the risk of assassination attempts against lawmakers. About 20% of American adults say that they are open to the possibility of using violence for a political end. In a large, well-armed country you do not need many of them to mean it for that threat to be scary.
Cheater-in-chief
The other consequence of the stolen-election myth is the continuing degradation of American democracy. To be clear, America will still see a peaceful transfer of power in January 2025. Neither side will be able to install a president who lost by the rules. But that is a minimal definition of democratic success. In the broader sense, elections are meant to generate the consent of the people to be governed, even by a president for whom they did not vote. That requires voters to believe that the process is fair and can be trusted, so that their side has a decent shot in four years. Each time people feel that an election lacks legitimacy, the day draws closer when one side or the other breaks the system rather than accept the result.
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