“The 2024 U.S. presidential election started out as a dead end,” one astute observer of American politics told me this week, “and it’s now even closer.”
That’s a pretty good summary of where we are now, with less than two weeks until Election Day.
It’s true that even the Kamala Harris campaign suspects things are getting away from them if their candidate loses the traction she had earlier in the campaign and fails to connect with the voters she needs to win.
Team Trump insists that pollsters are still not picking up on the true strength of his support among working-class voters, which, given how close the polls are nationally and, more importantly, in swing states, bodes well for Donald Trump if that’s true.
But even the most seasoned and astute American election observers are really sure of only one thing: that whoever wins, it will be very close. And that, dear reader, is why America faces the grim prospect of a constitutional crisis.
The Kamala Harris campaign feels things may be slipping away if their candidate loses traction and fails to connect with the voters she needs to win.
Team Trump insists that pollsters are still not detecting the true strength of his support among working-class voters, which bodes well for Donald Trump if true.
The closer the result, the more likely it is to be disputed by the losing side.
The 2020 presidential election was close enough that Trump and his followers still claim he won, even if no one else agrees. This year it could be even closer.
No one doubts that if Trump narrowly loses again, we will be in for a repeat performance. I am not claiming that there will be another storming of the U.S. Capitol by a violent mob like last time when Congress met to certify the outcome. That is very unlikely. But there will be multiple legal challenges designed to undermine the outcome and the threat of violence may lie just beneath the surface.
The difference this time is that, if Trump narrowly wins, Team Harris will almost certainly resort to the same legal guerrilla warfare that Trump used in 2020. Both Democrats and Republicans have already been pushed to the limit in anticipation of a post-election stalemate. .
Both sides have hired hundreds of expensive lawyers, backed by thousands of volunteer attorneys, to challenge any close results. Team Trump is already much better organized and funded than it was four years ago to mount large-scale legal challenges if the election doesn’t go his way.
Republican donors have given more than $140 million to nearly 50 groups working on what they call “election integrity.”
“We are preparing for all possible scenarios,” said a member of Trump’s legal team, adding that they have been working on it “continuously” for four years. They have already filed more than 130 lawsuits to ensure the votes are counted correctly.
Democrats claim they also had to hire a lawyer — some of the most expensive lawyers in the country, let that be said — just to counter the expected Republican legal attack.
But if Trump only manages a narrow victory, it seems more than likely that the assembled Democratic army of lawyers would quickly be transformed into an offensive force that would undermine a Trump victory. Former President Obama has already called on even more lawyers to join the Democratic cause.
So whether it’s Trump or Harris who are thought to have just crossed the winning line, that won’t be the end of the matter in the days after November 5. Because the lawyers have their many lucrative days in numerous courts, it may take weeks before the final outcome is known.
Congress is scheduled to certify the electoral college results on January 6, well in time for the inauguration of the new president on January 20. Four years ago, Team Trump launched more than 60 lawsuits in several states to deny Joe Biden’s victory. They all failed, even if the judge was a Republican or a Trump appointee.
I am not claiming that there will be another storming of the U.S. Capitol by a violent mob like last time when Congress met to certify the outcome.
But there will be multiple legal challenges designed to undermine the outcome and the threat of violence may lie just beneath the surface.
But this time the legal action will be much more extensive. There are no guarantees that the issue will be resolved by January 6, potentially leaving it undetermined who the new president would be.
Just as four years ago – but on a much larger scale – local officials will be pressured to ‘find’ more votes; there will be claims of fraud everywhere, and some states could even end up with competitive electoral colleges. In the event of a narrow Trump victory, the vice president could even be urged not to ratify the results, as Mike Pence did last time. This time, of course, the vice president is Kamala Harris.
The longer it takes to resolve the matter, the more likely some on the extremes of left or right will be to take matters into their own hands. That is why I am talking about a potential constitutional crisis that will engulf the country.
This is unlikely to happen? Maybe. But it’s almost happened before.
In the 1876 presidential election, just over a decade after the tumult of the Civil War, the winner could not be determined because four states—Florida, Louisiana, South Carolina, and Oregon—sent competing electors from the Electoral College.
It was agreed that Republican Rutherford Hayes had 165 electoral college votes and Democrat Samuel Tilden had 184. Nowadays you needed 185 to win. There were 20 contested votes from the four states with competing lists. So Hayes needed all twenty to win.
After much hassle, which resolved nothing, a committee was set up to decide how the disputed twenty votes should be distributed. Opening day was fast approaching – which at this time was only early March – and still there was no winner.
Outgoing President Ulysses S. Grant, a Civil War hero for the North, quietly stationed soldiers around Washington’s perimeter amid reports of armed mobs invading the capital.
Ultimately, the slim Republican majority on the committee gave Hayes all the twenty votes he needed to win. He became the 19th president of the US. But at a terrible price.
In what became known as the Compromise of 1877, Democrats demanded, and shamefully received, the South effectively returned to them. Since the Civil War, federal troops and administrators had given freed black slaves a measure of civil, political, and economic rights in what became known as the Reconstruction Era.
The compromise put an end to that. All remaining federal troops were withdrawn from the South, the old slave-owning ruling class was restored to power, and the Southern states descended into white supremacy, racial segregation, poverty, lynchings, and disenfranchised black communities for nearly a century.
Not quite a return to slavery, but not a huge improvement for most poor black people either—and that remained largely the case until the civil rights movement of the 1960s.
That’s how America resolved its last constitutional crisis, when there was a stalemate over who to transfer power to. Who knows what the prize will be this time?
Trump, of course, set a terrible example four years ago. This year he could do it again, but this time others might be eager to emulate him.
Trump, of course, set a terrible example four years ago. This year he could do it again, but this time others might be eager to emulate him.
There was a time when American politicians were held to a higher standard. Richard Nixon in 1960 and Al Gore in 2000 both had stronger reasons to dispute their narrow defeats than Trump in 2020. But both decided to put country first by being willing to admit they lost.
Somehow I don’t see that happening this time, whether Trump or Harris is the narrow loser. The country is more divided than ever and both parties are too captivated by their extremes.
American democracy could face a huge test in the coming weeks. The defining characteristic of a democratic society is the peaceful transfer of power in accordance with the way the people have spoken in elections. America stumbled over that hurdle four years ago, but still managed to get over the finish line. Democracy remained intact.
This year, that same hurdle could be even higher. The U.S. Constitution could face its greatest challenge since the outbreak of the Civil War in 1860.
Four years ago, the courts and judges did their job and the system functioned as intended. The rule of law prevailed. I’m optimistic enough to expect a repeat performance, after some rough wrong turns. But it’s hard not to be afraid.