Voting rights advocates are mulling “doomsday” election scenarios, expecting contested election results and protracted legal battles around mail-in ballots and voter intimidation.
That uncertainty – amid a pandemic, chaos at the US Postal Service and a renewed battle over the future of the US Supreme Court – has prompted election analysts and legal scholars to brace for worst-case scenarios, aggravated by threats from Donald Trump and his Republican allies to deploy active-duty military into American streets while falsely accusing vote-by-mail efforts of enabling widespread voter fraud.
Roger Stone, pardoned by the president after being convicted of lying to Congress, told far-right conspiracy theorist Alex Jones that the president should declare “martial law” if he loses the election, suggested ballots in the crucial battleground state of Nevada be “seized by federal marshals” and echoed the president’s false claims about mail-in voting.
Michael Caputo, the now-former assistant secretary of public affairs at the Department of Health and Human Services, claimed left-wing Americans were planning an armed revolt.
“When Donald Trump refuses to stand down at the inauguration, the shooting will begin,” he said on Facebook. “The drills that you’ve seen are nothing.”
Meanwhile, the president has refused to say whether he would accept the outcome, claiming mail-in votes are fraudulent, and suggesting that there is no legitimate outcome unless he wins a second term.
He has also signalled an unprecedented voter suppression and intimidation effort by urging supporters to menace voters at the polls and suggesting he could invoke the Insurrection Act to quash election-related protests.
The president told supporters in North Carolina on 19 September that “we're going to have a victory on 3 November, the likes of which you've never seen.”
“We're counting on the federal court system to make it so that we can actually have an evening where we know who wins,” he said. “Not where the votes are going to be counted a week later or two weeks later.”
Global demonstrations against the incoming administration followed 2016’s election, but protests warning against America’s hard-right turn and nascent fascism have only grown in scale in the years that followed.
If there are protests on Election Day, the president has threatened to invoke the Insurrection Act to deploy active-duty service members against other Americans.
"We’ll put them down very quickly if they do that,” he told Fox News on 12 September. “We have the right to do that. We have the power to do that, if we want.”
Last month, he told Fox News host Sean Hannity: “We're going to have sheriffs, and we're going to have law enforcement, and we're going to have, hopefully, US attorneys, and we're going to have everybody and attorney generals [sic]” monitoring polls and at polling stations across the US.
During an August campaign rally in Wisconsin, he told supporters: “The only way we’re going to lose this election is if the election is rigged.”
In North Carolina, he told supporters to “watch all the thieving and stealing and robbing they do” at the polls.
Elections already are underway for thousands of Americans who are voting early. On 19 September, a group of the president’s supporters protested outside early-voting locations in Virginia, waving flags and attempting to block them from entering.
Voting rights advocates do not believe the president would have to activate any of his myriad emergency authorities – including “secret” documents that suggest sweeping executive powers – to create an emergency-like response as a form of intimidation and suppression at the polls.
New York School of Law’s Brennan Centre for Justice, a nonpartisan law and policy institute, has sounded that alarm over potential executive overreach and election safety following the president’s dangerous rhetoric.
“The chances we will see more deployments of federal troops or [Department of Homeland Security] agents in the coming weeks is quite high, because I think he considers that a good campaign ad for him,” Elizabeth Goitein, the Brennan Center’s Liberty and National Security director, told The Independent.
“When it comes to the vote itself, and his plans for responding in a situation where things don’t look good for him, my guess is he will use means other than emergency powers for that,” she said. “There is enough of a danger to having a fair and free election without the president actually having to invoke emergency powers.”
The president is not legally able to intervene with the state and local election officials, but a months-long campaign to undermine the results of the vote and threats to deploy autocratic military maneuvers on American streets, supported by the president’s allies and armed right-wing extremists, could serve as a “pretext” to deploy “heavily militarised federal and civil law enforcement agents like we saw in Portland acting as a kind of paramilitary” in the days surrounding the election, Ms Goetein said.
“If that were to happen in days leading up to the election and on Election Day, the concern is it would discourage turnout, that it would be intimidating for people to go to the polls,” she said. “Scaring people into staying home might not be the best strategy for the president, but right-wing extremists might be more willing to go out in that scenario, and in general, white Americans are going to be less worried about going out if there’s a heavily armed military presence on the streets.”
Tabulating mail-in ballots, if there is an influx from voters avoiding in-person polls during the pandemic, is likely to take longer than counting in-person results, a simple procedural issue that the president has suggested proves the existence of voter fraud.
If early ballot returns suggest a Trump victory, and delayed mail-in ballots begin to favour his Democratic rival, the president would point to his history of alleging mass voter fraud to justify undermining the result, Ms Goetein said.
“It’s remarkable how much confidence we can have in this country that the results that are reported accurately reflect how people vote,” she said. “I’m not saying the system is perfect by any means, but the one thing that we can rely on is the numbers we get – when we watch returns come in – reflect the vote and will of the people, and that is no small thing. But president Trump is doing his very best to rip that confidence out from under people.”
Threatening to deploy law enforcement for elections isn’t just scaring people from the polls but also “continuing to fan the flames of violent conflicts between right-wing extremists and peaceful protesters,” she said.
“That’s not interfering with the election per se but it is a dramatic misuse of emergency powers for the purpose of a political campaign.”
Emergency declarations would not have to be issued to deploy federal agents – the president deployed National Guard troops without support from Washington DC’s mayor, and DHS agents patrolled Portland, Oregon streets without the consent or request of the state.
“He doesn’t have to wait for a state request, and he doesn’t wait for a state request under the Insurrection Act, which he has not used,” Ms Goetein said.
Under that measure, active-duty troops could be deployed to enforce state or federal laws – it was famously used to enforce school desegregation efforts in Arkansas in 1957 and in Alabama in 1962 and 1963.
The senators told Senator McConnell to hear testimony from state and local officials and election experts to “reassure the American people that the election will go smoothly and reliably."
"Nothing is more fundamental to our democracy than the integrity of our elections,” the senators said in a statement. “Sadly, there are some who are systematically undermining public confidence in the voting process, and irresponsibly fanning suspicions and conspiracy theories about the legitimacy of election results.”
The committee would "hold hearings about what is being done around the country to make certain that our public institutions are prepared to conduct a smooth and reliable election which will be free from voter suppression and intimidation, that every vote will be counted and that there will be confidence in the ultimate outcome.”
The American Civil Liberties Union, which has waged a legal campaign to ensure voting rights are upheld across the US, is watching closely.
There are state and federal laws criminalising voter intimidation and harassment, and the ACLU is preparing legal actions, if necessary.
“I don’t want to be a doomsday scenario person, but part of my job is to think through that,” said Sophia Lin Lakin, Deputy Director of the ACLU’s Voting Rights Project. “Unfortunately we’ve been given reason to take some of those potentially more sinister concerns perhaps more seriously, and to devote more resources to being prepared across more places.”
The Republican National Committee’s National Ballot Security Task Force, founded in 1981 in New Jersey by the Republican National Committee, aimed to discourage Democratic voter turnout in the state’s gubernatorial election. The group was sued by Democration National Committee on grounds that the GOP had violated Voting Rights Act. The RNC entered into consent decree with the state in 1982.
Despite efforts to extend the agreement, it expired in 2017.
“We’ve been concerned about the potential abuse of that kind of tactic since the expiration,” Ms Lakin said.
There will “almost certainly be lawsuits” if troops are deployed, she said.
“Since the president has said that he would potentially call on military or other law enforcement at the polls, we’ve been obviously concerned about what that means,” she said.
But the president’s statements alone account for some degree of intimidation
“Even if he’s bluffing or saying something coming to mind, there’s a certain amount of concern about the statements themselves, potentially making people nervous about going out and exercising their right to vote,” she said. “From a legal standpoint, what he’s been saying and has done, it doesn’t matter whether it is or isn’t something one would consider legal. We prepare for it in that matter even though it seems far beyond the pale.”
The ACLU and voting rights advocates are working to give voters information they need to safely vote, whether that’s having access to mail-in ballots to knowing how to vote early in their states.
“That’s a challenge any time, but with so much going on it’s a particularly challenge to make sure we’re reaching as many people as we can, as early as possible, so they can take advantage of the positive things states have put in place to make sure elections move as smoothly as possible and as many people can vote in the safest way they can,” Ms Lakin said.
Local voting officials, and voters, are often the first line of defence to protect voting rights, she said.
“The energy from people we worry about not being involved in high numbers is what gives me some optimism that much of this will be resolved simply because people are there and won’t stand for this,” she said.
“In terrible, terrible circumstances, that level of engagement is a silver lining I will hold onto as the election progresses and becomes more chaotic.”