Foley, imagining what comes next, continues:
Trump insists, by tweet and microphone, “THIS THEFT WILL NOT STAND!!!” “WE ARE TAKING BACK OUR VICTORY.”
If events were in fact to unfold this way, and if Trump were to get the backing of the Pennsylvania State Senate and House, both currently controlled by Republicans, the stage could indeed be set for what Foley and other legal experts have described as a battle with few precedents.
Barton Gellman, in a long essay in The Atlantic, “The Election That Could Break America” makes extensive use of Foley’s conjecture. “Trump’s crusade against voting by mail is a strategically sound expression of his plan for the Interregnum,” the period from Election Day until the inauguration of Jan. 20. Trump, Gellman continues,
is preparing the ground for post — election night plans to contest the results. It is the strategy of a man who expects to be outvoted and means to hobble the count.
Lawrence Tabas, the Pennsylvania Republican Party chairman, told Gellman that he has discussed the possibility of the legislature rejecting some or all mailed-in ballots, and subsequently choosing a slate of pro-Trump electors to cast the state’s 20 Electoral College votes for the incumbent. “I just don’t think this is the right time for me to be discussing those strategies and approaches,” Tabas told Gellman, but direct appointment of electors “is one of the options. It is one of the available legal options set forth in the Constitution.”
If two sets of electors were sent to Washington, the U.S. House and Senate would determine whether to accept a electors from Pennsylvania chosen by the Republican legislature, or electors certified by Pennsylvania’s Democratic governor, Tom Wolf.
Working in the same vein as Foley, Larry Diamond, a political scientist and senior fellow at Stanford’s Hoover Institution, described by email what he called “by far the most dangerous scenario”:
Trump is leading when the in-person votes are counted on election night. If you just stopped counting at midnight on election night, Trump would be the winner, even though many millions of mail-in ballots in key swing states are still to be counted.
When the “blue wave comes in,” Diamond continues,
and gives Biden a victory in states with more than 270 electoral votes, Trump cries foul and demands that the Republican legislators in states like Pennsylvania, maybe Florida, give him their electoral votes, even though he didn’t win according to the vote count.
In a Sept. 8 Atlantic essay, Diamond and Foley, writing together, warn of the possibility that
Jan. 20 could arrive with Vice President Pence, in his role as Senate president, insisting that President Trump has been re-elected to a second term — while at the same time, Speaker Pelosi insists that there is no president-elect, because the process remains deadlocked, and hence she will assume the role of acting president until the counting of electoral votes from the states resumes with the disputed state resolved.
Richard Hasen, a professor of law and political science at the University of California-Irvine, emailed his version of a worst-case situation: “If it turns out to be really close and it comes down to Pennsylvania, God help the United States of America.”
Hasen warns that Pennsylvania is expected to be one of the last states to complete the tabulation of votes, and, in that case, Pennsylvania’s 20 Electoral College votes could determine the winner. If that is the case, Hasen says,
It will be trench warfare over ballots and a president seeking to cast major doubt over the legitimacy of the election even without evidence of major problems. It would be much worse than Bush v. Gore because of Trump’s rhetoric, because we are more polarized and many see this election in existential terms, and because internal and external forces can use social media to spread disinformation and fan the flames of hate.
Barry Burden, a political scientist at the University of Wisconsin-Madison, shared Hasen’s worries, outlining in an email what he views as “the most likely scenario”:
President Trump falsely condemns the election as fraudulent and illegal. He will build on his allegations that millions of noncitizens voted illegally in 2016 to claim that millions of absentee ballots were submitted in duplicate or by foreign governments, neither of which will be true. He will intensify his rants against the supposed fraud as Biden’s lead in the popular vote grows in the days following the election.
A flood of lawsuits “on postal delays, questions over the matching of voter signatures on absentee ballots, and lines at the polls” will likely “cause suspicious voters to think something is afoot,” Burden wrote:
This suspicion along with the possibility of a longer vote count this year will make it even more tempting for Trump and other politicians to begin making false allegations on election night.
Richard Pildes, a law professor at N.Y.U., pointed out in an email that policymakers who support extended vote processing deadlines “face a trade-off. The longer the permitted time, the more ballots will be valid. But the longer that time, the longer it will take for the final result to be known.”