Preventing a Disrupted Presidential Election

Preventing a Disrupted Presidential Election and Transition August 3, 2020

Jan 29, 2024

Executive Summary

In June 2020 the Transition Integrity Project (TIP) convened a bipartisan group of over 100 current and former senior government and campaign leaders and other experts in a series of 2020 election crisis scenario planning exercises. The results of all four table-top exercises were alarming. We assess with a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape. We also assess that the President Trump is likely to contest the result by both legal and extra-legal means, in an attempt to hold onto power. Recent events, including the President’s own unwillingness to commit to abiding by the results of the election, the Attorney General’s embrace of the President’s groundless electoral fraud claims, and the unprecedented deployment of federal agents to put down leftwing protests, underscore the extreme lengths to which President Trump may be willing to go in order to stay in office.

In this report, TIP explains the basis for our assessment. Our findings are bolstered by the historical experience of Bush v. Gore (2000) and other U.S. electoral dysfunctions. The closest analogy may be the election of 1876, a time of extreme partisanship and rampant disenfranchisement, where multiple states proffered competing slates of electors, and the election was only resolved through a grand political bargain days before Inauguration—one that traded an end to Reconstruction for electoral peace and resulted in a century of Jim Crow, leaving deep wounds that are far from healed today. Among the findings we highlight in the report:

• The concept of “election night,” is no longer accurate and indeed is dangerous. We face a period of contestation stretching from the first day a ballot is cast in mid-September until January 20. The winner may not, and we assess likely will not, be known on “election night” as officials count mail-in ballots. This period of uncertainty provides opportunities for an unscrupulous candidate to cast doubt on the legitimacy of the process and to set up an unprecedented assault on the outcome. Campaigns, parties, the press and the public must be educated to adjust expectations starting immediately.

• A determined campaign has opportunity to contest the election into January 2021. We anticipate lawsuits, divergent media narratives, attempts to stop the counting of ballots, and protests drawing people from both sides. President Trump, the incumbent, will very likely use the executive branch to aid his campaign strategy, including through the Department of Justice. We assess that there is a chance the president will attempt to convince legislatures and/or governors to take actions – including illegal actions – to defy the popular vote. Federal laws provide little guidance for how Congress should resolve irregularities when they convene in a Joint Session on January 6, 2021. Of particular concern is how the military would respond in the context of uncertain election results. Here recent evidence offers some reassurance, but it is inconclusive.

• The administrative transition process itself may be highly disrupted. Participants in our exercises of all backgrounds and ideologies believed that Trump would prioritize personal gain and self-protection over ensuring an orderly administrative handoff to his successor. Trump may use pardons to thwart future criminal prosecution, arrange business deals with foreign governments that benefit him financially, attempt to bribe and silence associates, declassify sensitive documents, and attempt to divert federal funds to his own businesses. These risks can be mitigated; the worst outcomes of the exercises are far from a certainty. The purpose of this report is not to frighten, but to spur all stakeholders to action. Our legal rules and political norms don’t work unless people are prepared to defend them and to speak out when others violate them. It is 2 incumbent upon elected officials, civil society leaders, and the press to challenge authoritarian actions in the courts, in the media, and in the streets through peaceful protest. Specific recommendations include:

• Plan for a contested election. If there is a crisis, events will unfold quickly, and sleep-deprived leaders will be asked to make consequential decisions quickly. Thinking through options now will help to ensure better decisions. Approach this as a political battle, not just a legal battle. In the event of electoral contestation, sustained political mobilization will likely be crucial for ensuring transition integrity. Dedicated staff and resources need to be in place at least through the end of January.

• Focus on readiness in the states, providing political support for a complete and accurate count. Governors, Secretaries of State, Attorneys General and Legislatures can communicate and reinforce laws and norms and be ready to confront irregularities. Election officials will need political and public support to see the process through to completion.

• Address the two biggest threats head on: lies about “voter fraud” and escalating violence. Voting fraud is virtually non-existent, but Trump lies about it to create a narrative designed to politically mobilize his base and to create the basis for contesting the results should he lose. The potential for violent conflict is high, particularly since Trump encourages his supporters to take up arms.

• Anticipate a rocky administrative transition. Transition teams will likely need to do two things simultaneously: defend against Trump’s reckless actions on his way out of office; and find creative solutions to ensure landing teams are able to access the information and resources they need to begin to prepare for governing.

About the Transition Integrity Project

The Transition Integrity Project (TIP)1 was launched in late 2019 out of concern that the Trump Administration may seek to manipulate, ignore, undermine or disrupt the 2020 presidential election and transition process. TIP takes no position on how Americans should cast their votes, or on the likely winner of the upcoming election; either major party candidate could prevail at the polls in November without resorting to “dirty tricks.” However, the administration of President Donald Trump has steadily undermined core norms of democracy and the rule of law and embraced numerous corrupt and authoritarian practices. This presents a profound challenge for those – from either party – who are committed to ensuring free and fair elections, peaceful transitions of power, and stable administrative continuity in the United States.

The American people have the right to choose their next president without intimidation or interference in the normal electoral process. Believers in democracy and the rule of law should therefore be prepared to take action to ensure that the results of the 2020 presidential election reflect the will of the American people. Like many authoritarian leaders, President Trump has begun to lay the groundwork for potentially ignoring or disrupting the voting process, by claiming, for instance, that any mail-in ballots will be fraudulent and that his opponents will seek to have non-citizens vote through fraud. Similarly, he has frequently expressed the view that he is entitled to additional time in office and that his opponents are seeking to steal the election. If President Trump’s future actions violate long-standing legal and ethical norms relating to presidential elections, there is also a risk that they will push other actors, including, potentially, some in the Democratic Party, to similarly engage in practices that depart from traditional rule of law norms, out of perceived self-defense.

The goal of TIP is to highlight these various electoral and transition-related risks and make recommendations to all actors, individual and institutional, who share a commitment to democracy and the rule of law.2 The recommendations shared here reflect input from both Republicans and Democrats committed to these values. However, because the primary threat to the integrity of the election and transition appears to come from the Trump Administration, most of the recommendations in this memo focus on how actors committed to the rule of law can restrain or counter anti-democratic actions the Trump Administration and its supporters may take in connection with the 2020 election.

That TIP’s concerns are widely shared is reflected in the media attention which this project has already begun to garner. (For a list of articles as of late July 2020, see Appendix A.)

About the Scenario Exercises

In June 2020, TIP organized four scenario exercises to identify risks to the rule of law or to the integrity of the democratic process in the period between Election Day (November 3, 2020) and Inauguration Day (January 20, 2021), with an eye toward mitigation and/or prevention of worst-case outcomes. At this point it seems possible that either candidate may achieve a decisive electoral victory, but the goal of TIP’s scenario exercises was to gain a better understanding of the tests our democratic institutions could face in the event that candidates defy the norms that have underpinned American political practice for decades. Specifically, TIP wanted to examine some of the unknowns: How far might candidates go in contesting negative electoral outcomes or disrupting the normal transition process? How well would American institutions hold up if one or both candidates refused to “play by the rules”?

The four scenarios were developed after a consultative process involving outreach to experts on elections and transitions, political violence and instability, governance, and scenario planning and game design. Each of the four scenarios developed was different. (See Appendix B for a summary of the scenarios and key actions.) In one scenario, the exercise posited that the winner of the election was not known as of the morning after the election and the outcome of the race was too close to predict with certainty; in another, the exercise began with the premise that Democratic party candidate Joe Biden won the popular vote and the Electoral College by a healthy margin; and in a third, the exercise assumed that President Trump won the Electoral College vote but again lost the popular vote by a healthy margin. The fourth exercise began with the premise that Biden won both the popular vote and the Electoral College by a narrow margin.

Sixty-seven people participated as active “players” in one or more of the scenario exercises, while dozens more participated in the exercises as observers and offered feedback during debriefing sessions. Participants included members of both major political parties, former high-ranking government officials (including, for example, two former governors), senior political campaigners, nationally prominent journalists and communications professionals, social movement leaders, and experts on politics, national security, democratic reform, election law, and media.

Each simulation exercise involved seven teams, each composed of 2-3 people. The teams were constructed to allow players considerable flexibility to adopt different identities at different points in the game. Using a “matrix game”3 format, the teams were: (1) The Trump Campaign [“Team Trump”]; (2) The Biden Campaign [“Team Biden”]; (3) Republican Elected Officials; (4) Democratic Elected Officials; (5) Career Federal Government employees (civilian and military) and political appointees; (6) Media (right wing, left wing and mainstream); and (7) the Public (this team consisted of polling experts). Teams were made up of participants with “real life” experience in the types of roles they were asked to play. Under the rules of the matrix game, teams presented with the initial scenario could take any action they wanted. The chances of success of each team action were determined based on robust argumentation among all teams and the adjudication of a White Cell, as well as a randomizing factor based on dice rolls. It is important to note that the exercises were not designed to model or simulate legal strategy, but rather to better understand the potential political mobilization and media dynamics surrounding potential electoral contestation, and how candidates might exercise political power to achieve a win.

Key Insights from the Scenario Exercises

The scenario planning exercises were conducted in June 2020. Developments since then have only confirmed that there is every reason to be concerned that our electoral rules and norms are under threat. In an interview with Chris Wallace, President Trump suggested that he might not abide by the results of the election if he loses. The President deployed agents from Homeland Security to Portland to suppress racial justice protestors, a move that outraged many, including the Republican former head of Homeland Security, and indicates President Trump’s appetite to deploy federal agents even against the will of local elected officials. He has announced plans to expand this deployment to blue cities in swing states, raising the specter of electoral intimidation. President Trump has speculated about whether the election should be postponed and Attorney General Bill Barr expressed confusion about whether the date of the election could be moved. (As a legal matter, only Congress can move the day of the Presidential election.) Trump also demanded that the election results be called immediately on Election Day, e.g. before all mail-in ballots can be counted. And the director of the National Counterintelligence and Security Center in the Office of the Director of National Intelligence issued a statement warning that foreign countries are again trying to interfere in the US election.

Two words of caution about the findings from the exercises. First, TIP intentionally did not game legal strategies in any detail. Litigation will be an important part of the strategy for both sides, but we did not attempt to pass judgement on whether any particular claims or tactics would prevail. One question is whether a candidate is able to convince the state legislature to send a package of electoral college votes inconsistent with the certified popular vote. Even if a court disapproved of this action, Congress might nonetheless consider those votes on January 6.

Second, the exercises were not able to fully capture the ways in which the media will shape and drive public opinion, or how specific media outlets would cover events differently and drive increasingly partisan responses. Social media in particular will undoubtedly play a heavy role in how the public perceives the outcome of the election. Political operatives, both domestic and foreign, will very likely attempt to use social media to sow discord and even move people to violence. Social media companies’ policy and enforcement decisions will be consequential, and this merits further exploration and consideration.

The topline findings are here. While not directly the subject of the scenario planning exercises, in debriefings our participants almost all raised questions about whether “Trumpism” would survive a Trump loss. We include a summary of that discussion in Appendix C.

1. Campaign decisions about whether to contest the election are likely to be political calculations, rather than calculations based on legal rules alone.

Election lawyers use the term “margin of litigation” to describe the range of reported vote tallies that would provoke legal action. Thinking about the upcoming Presidential election, the more important concept might be the “margin of contestation.”4 In other words, what combination of factors might lead a candidate to conclude that contesting the election is (or is not) in his interest? This is a dynamic and unpredictable calculation because the outcome is likely to be fought not only in court or by counting ballots, but possibly also in state legislatures, in Congress, and on the streets.

What happens before Election Day will, to a large extent, determine the margin of contestation. Reporters, pollsters, pundits, political parties, and many others will communicate confidence or concern about the legitimacy of the election. Viral social media memes will play a role as well.

During the exercises, winning “the narrative” emerged as a potentially decisive factor. Either side can expand or contract the “margin of contestation” if they succeed in substantially changing how key decision makers and the public view the “facts,” the risks of action or inaction, or external events such as civil unrest. An integrated strategy of legal contestation, political leadership, mass mobilization, and messaging is much stronger, and Team Trump often had the advantage because they could rely on Fox News, a significant and committed base, and loyalties from law enforcement agencies. Team Biden often had the majority of the public on its side, and the ability to mobilize resentment about the structural disenfranchisement in the way we conduct presidential elections TIP’s exercises suggest that President Trump may expand the margin of contestation primarily by contesting the legality of votes cast (e.g., by alleging fraudulent mail-in ballots, voting by ineligible voters, etc.). Meanwhile, former Vice President Biden may expand the margin of contestation by highlighting voter suppression by the GOP (purges of voter rolls, shutting down of polling places, failure to fund election administration, ID and other verification requirements, intimidation of voters, etc.). Biden may also be able to expand the margin of contestation by questioning the overall legitimacy of a system that doesn’t require the winner to get a majority of the popular vote or by decrying how President Trump uses the power of the presidency to manipulate the process. Both sides may expand the margin of contestation by questioning the credibility of reported results, if, for example, they believe (or merely assert) that foreign interference or other factors compromised the integrity of the vote count.

The conditions and mood of the country will also inform whether and how candidates assess the window of contestation. We could be facing an alarming second wave of COVID-19, rising unemployment, a cratering stock market, growing evictions, civil unrest, and even political violence. President Trump may be seen as an asset or as a liability to down-ballot Republican candidates. The political commitment (or desperation) of rank and file members of each party will not just reflect the actions of leadership but may drive those actions as well. A close election will by definition be a fluid situation.

2. A close and contested election may be resolved through the exercise of power, not through the courts.

The scenario exercises developed by TIP were designed to encourage both the Biden and Trump teams to pursue plausible but aggressive actions in order to win. The exercises demonstrated that the very first “move” by each campaign was often decisive; it established a narrative and the overall strategy. In all four of the exercises TIP conducted, Team Trump immediately adopted a strategy of casting doubt on the official election results, even in the one scenario where he later accepted a loss. Team Trump also encouraged chaos and violence in the streets and aimed to provoke Team Biden into subverting norms — even as Team Trump itself sabotaged traditional norms— so that Team Biden could be accused of hypocrisy or illegality.

During the exercises, Team Trump and GOP elected officials took the following steps:

• Calling for recounts in all states in which victory was not already apparent.

• Launching coordinated investigations at the state and federal levels into alleged “voting irregularities” in an effort to undermine public confidence in results that did not go Trump’s way and/or alter the results.

• Attempting to halt the counting of mail-in ballots by filing cases in state court or leaning on Republican leaders to stop vote counting or to certify a result early, without waiting for the certified results from the Secretary of State.

• Turning out their well-organized and committed base to take to the streets in Trump’s favor, in part by disseminating disinformation about the danger posed by pro-Biden demonstrators (e.g., by suggesting likely Antifa violence, etc.).

• Relying on both FOX News and right-wing social media to echo and amplify pro-Trump messages and facilitate the harassment and bullying of election officials, to cause chaos and delay and/or to intimidate officials into taking actions that benefited Team Trump.

• Using federal agencies to justify or support Trump campaign tactics. In one of the more aggressive moves undertaken in one of the TIP exercises, Team Trump had Attorney General Bill Barr order the seizure of mail-in ballots to ensure that vote counting would stop.

https://www.documentcloud.org/documents/7013152-Preventing-a-Disrupted-Presidential-Election-and

(Now wait a minute here. Lets unpack this; Who are the characters that played “Team Trump” in this goofy exercise? And what were the presumed parameters of the presumed illegal bounds are they ‘imagining’ that this “Team Trump” would go to? And why would any sane person take all this delusional nonsense serious?

This entire scenario appears to me like a group of 6^th graders making up a game to make their enemies look like crazy maniacs, while they pretend what they are doing is in anyway rational.)

Bassin was one of the conspirators listed in Molly Ball’s TIME Magazine Feb 4, 2021 article;