Illustration: Aïda Amer/Axios
Democratic lawyers are preparing to challenge any effort by President Trump to swap electors chosen by voters with electors selected by Republican-controlled legislatures. One state of particular concern: Pennsylvania, where the GOP controls the state house.
Why it matters: Trump's refusal to commit to a peaceful transfer of power, together with a widely circulated article in The Atlantic about how bad the worst-case scenarios could get, is drawing new attention to the brutal fights that could jeopardize a final outcome.
What we're hearing: Stung by the Supreme Court Bush v. Gore decision in 2000, there’s a separate effort to ensure that no state recounts, like Florida in 2000, are cut short by the Supreme Court, according to a Democratic attorney familiar with the strategy.
- The Biden campaign has been reluctant to telegraph their precise strategy, but campaign officials have enlisted thousands of lawyers and volunteers on voter protection efforts across the country, and have set up national and state voter hotlines, according to the campaign.
- They also plan an aggressive response to vote suppression activities.
And Trump advisers are ready to challenge the legitimacy of the election results, especially with the expected late wave of Democratic mail ballots. They're also ready to defend against Democratic lawyers who mount their own election challenges.
- One Trump campaign source told Axios that their lawyers will litigate where needed, including suing in key states that have changed election laws to allow for an extended period of time to vote or to count ballots.
- “There are a lot of options if it turns out that the election results aren’t fair and free,” the source said.
The big picture: Trump's own advisers are providing a reality check: the Constitution makes it clear that, even if Trump chooses denial, if Joe Biden is elected president he will be president on Jan. 20.
- "Trump can say 'I don't concede, I think it's rigged,' but he would not be the president," a Trump legal adviser told Axios.
But legal experts are increasingly worried about how the next president will be chosen if the mechanics for democratic elections fall apart and we face a constitutional crisis.
- Some lawyers, especially Democrats, don't like to talk about it because they don't want to discourage voters who already feel their votes won’t matter — but they're still gaming out different scenarios so that they are prepared to respond for any event.
David Rivkin, who served in the White House counsel’s office and Justice Department under Presidents Reagan and George H.W. Bush, warned about what he characterized as the "Titanic scenario":
- Disputed election results in many states with potentially inconsistent opinions on the same legal issues.
- A deadlocked Supreme Court if Trump doesn't fill Ruth Bader Ginsburg's seat before the election.
- It becomes up to the House of Representatives to declare the winner. But the question of who controls the delegations in the House may also be at play, given that every member of Congress is also up for reelection this year.
“It’s tremendously dangerous from every perspective,” said Rivkin, who supports Trump.
Benjamin Ginsberg, a top GOP election lawyer, says Trump could ask for state recounts and even contest the election in states if he finds fraud. "The biggest concern is that Trump throws the results of the election — and therefore the peaceful transfer of power into doubt — by unsupported rhetoric,” he said.
Between the lines: Trump's answer to the question about the peaceful transfer of power — "we're going to have to see what happens" — is a catchphrase he uses often when he doesn't want to answer a question.
- But it would have been an easy answer for any other president, and he forced the GOP to spend Thursday doing cleanup. Nearly every Republican insisted there will be a peaceful transition of power, and how any assertion otherwise would be a rejection of American democracy.
- Aides to the president argued Thursday that Trump is being misinterpreted, and that he instead was refusing to say whether he'd accept a losing result without a legal fight.
For the record: "The Biden campaign has assembled the biggest voter protection program in history to ensure the election runs smoothly and to combat any attempt by Donald Trump to create fear and confusion with our voting system, or interfere in the democratic process," said campaign spokesman Michael Gwin.
- And the Trump campaign says it's just focused on the "integrity" of the election. "The Trump campaign is fighting to ensure every valid ballot across America counts as we work to deliver the free and fair election Americans deserve," said campaign general counsel Matthew Morgan.
The bottom line: The worst-case scenarios don't always happen, and they may not with this election. But 2020 has already been a year full of worst-case scenarios.
Editor's note: This piece has been corrected to note that the Trump campaign's general counsel is Matthew Morgan (not Michael Morgan).