WASHINGTON (CN) — A test of a democracy is its ability to transition power peacefully and in one month, the United States will, as it has done for more than two centuries, test the mettle of its Constitutional traditions. But where distrust is regularly broadcast by the president over that very process, a key question emerges: what happens when the rules are flouted?
President Donald Trump has made flouting norms a cornerstone of his tenure and it has been a factor that has both drawn voters in and pushed them away. And among his most divisive statements are those he has made on the prospect of refusing election results this November if they aren’t in his favor.
Since 2016 during his final debate with opponent Hillary Clinton, he quipped if he were to lose that year, it was merely proof the election was “rigged.”
He has since doubled, tripled and quadrupled down over the years with a seemingly endless stream of comments or tweets entertaining the idea of extending his constitutional stay. Although Trump has dismissed his commentary as jocular, this particular norm-busting is unprecedented in modern memory.
But laws and conventional social mores are not the same.
No matter how inflammatory or unsettling to some Trump’s remarks might be, election and constitutional law experts rely on the devil in the details.
While the Constitution leaves some matters murky and to be sure, there are legal conundrums America has yet to unravel that may very well come up in the months ahead, in terms of what the Constitution purports to preserve of democracy, lawmakers and election experts alike agree: The guardrails created centuries ago remain ready to withstand a challenge from any comer with autocratic aspirations.
“It’s important to take stock of the moment we find ourselves in. There’s been a necessity to dig into these questions and understand how things could work after Nov. 3 and in a moment that feels like it is fairly unprecedented in this country,” Vanita Gupta, president of the Leadership Conference on Civil and Human Rights said during a teleconference hosted by the National Task Force on Election Crises this week.
The task force is comprised of over 50 election law and civil rights experts whose sole mission is to help elucidate understanding of what the Constitution deigns for a peaceful transition of power and how disputes this year can be handled in a way that is legal and solidifies, not undermines, public confidence.
Since Covid-19 gripped the U.S. and catapulted mail-in ballots as the preferred and recommended way to vote amid the pandemic, Trump portends daily a looming and inevitable fraud, but without evidence for his claims.
Mail-in voting is a cornerstone of America’s democracy and assessments conducted by election commissions as well as the U.S. intelligence community have confirmed claims of widespread fraud are unfounded.
During a September congressional hearing, FBI director Christopher Wray was unequivocal that the mail-in method was secure. What is dangerous, he said, is the “steady drumbeat of misinformation” that creates widespread cynicism.
It is those reverberations and yet foretold critiques from the White House to the legitimacy of this year’s election that are expected to grow louder during a crucial window ahead. That time period is the space between Election Day and the next president’s inauguration, whomever that may be.
Litigation has been mounted to curb or restrict altogether mail-in-voting access by Republican state legislatures in dozens of states including battlegrounds like Wisconsin and Pennsylvania.
“Here’s what we know will happen: Trump will say a lot of nonsense,” Joshua Geltzer, executive director and visiting professor at Georgetown Law’s Institute for Constitutional Advocacy and Protection said recently of potential delays ahead. “The urgency of now is helping Americans to understand there is nothing to worry about with mail-in ballots. There is nothing, no reason to doubt election results if we don’t find out on election night itself. And if not, the courts can handle it.”