President Donald Trump has not been shy about his intent to subvert the election, using any means necessary, to ensure he remains in office for at least four more years.
The Biden campaign has prepared for a number of post-election scenarios, from the most likely challenges to the wildly implausible, and The Atlantic‘s Barton Gellman mapped out some of the ways the president could overthrow the will of the voters.
“Could Trump dispatch active-duty forces to Democratic strongholds in swing states — say, Philadelphia, Detroit, and Milwaukee — with intent to suppress the vote or interfere with the count?” Gellman speculated.
That’s unlikely, Gellman conceded, but not impossible — particularly if the president invoked the Insurrection Act of 1807 to put down rioting.
“There is no way that he’s going to persuade the Pentagon to send troops,” said a senior adviser to Joe Biden, who added that the legal team has regardless prepared emergency legal papers for that scenario.
Biden’s team has also considered the possibility that Trump could manufacture a justification for seizing mail-in ballots believed to favor the Democratic nominee.
“Experts considered one scenario that the Biden team has gamed out,” Gelmman wrote. “John Ratcliffe, the director of national intelligence, passes word that top-secret information suggests an effort by China to forge absentee ballots — a risk that Attorney General Bill Barr has publicly raised as a matter of ‘common sense.’ The report reaches Postmaster General Louis DeJoy, a major campaign contributor to Trump. DeJoy instructs the chief of the U.S. Postal Inspection Service to halt the delivery of ballots sent by mail.”
Even a short delay in their delivery could run afoul of laws in 28 states that require absentee ballots to arrive by Election Day, while the other 22 have deadlines within a few days.
“Tens of millions of ballots have already been delivered,” Gellman wrote. “If Trump were going to pull this move, he would probably have done it sooner. On the other hand, every vote counts in a closely contested state.”
The senior Biden adviser is most concerned about the possibility that federal law-enforcement forces under Barr’s command could order a halt to vote counting to investigate alleged voter fraud.
“I fully believe that Trump and, unfortunately, Barr will seize every advantage they can because they have shown that they are willing to,” said Justin Levitt, a Loyola Marymount University law professor and a former deputy assistant attorney general. “My firewall is that there’s very little that they can do themselves.”
The Trump administration has already argued in court that allowing allegedly fraudulent ballots to be counted denies the voting rights of lawful voters, which the president’s lawyers could take those ballots away from the states and place them under federal jurisdiction.
“You can’t just say there’s no power of the federal government at all in these things,” said Edward B. Foley, a constitutional-law professor at Ohio State. “You just have to hope it will not be abused … The idea of using DOJ power to try to thwart the popular vote is taking us into truly uncharted territories.”