“The 2024 US presidential election started out as a tie,” one astute observer of US politics told me this week, “and now it’s even closer.”
That’s a pretty good summary of where we are, with Election Day less than two weeks away.
It’s true that even Kamala Harris’ campaign feels like things may be slipping away as their candidate loses the traction she had early in the campaign and fails to convince the voters she needs to win.
The Trump team insists that pollsters are not yet detecting the true strength of his support among working-class voters, which, given how close the polls are nationally and – more importantly – in the states undecided, it bodes well for Donald Trump, if true.
But even the most experienced and knowledgeable American election observers are really sure of only one thing: Whoever wins, it will be very close. And that, dear reader, is why the United States faces the grim prospect of a constitutional crisis.
Kamala Harris’ campaign feels things may be slipping away as its candidate loses traction and fails to convince the voters she needs to win.
Team Trump insists that pollsters are still not capturing 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 the losing side will challenge it.
The 2020 presidential election was pretty close, and Trump and his acolytes continue to claim he won, even if no one else agrees. This year it could be even closer.
No one is in any doubt that if Trump narrowly loses again, we are in for a repeat. I do not pretend that there will be another assault on the United States Capitol by a violent mob, as happened last time when Congress met to ratify the result. That is very unlikely. But there will be multiple legal challenges designed to undermine the outcome and the threat of violence may well be just below 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 are already legalized to the extreme in anticipation of a post-election confrontation. .
Both sides have hired hundreds of expensive lawyers, backed by thousands of volunteer attorneys, to challenge any close results. The Trump team 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,” says a member of Trump’s legal team, adding that they have been working “nonstop” on it for four years. They have already filed more than 130 lawsuits to make sure, they say, that the votes are counted correctly.
Democrats say they’ve also had to turn to lawyers (some of the most expensive lawyers in the country, by the way) simply to counter the expected Republican legal attack.
But if Trump enjoys only a narrow victory, it seems more than likely that the assembled army of Democratic lawyers will quickly transform into an offensive force to undermine a Trump victory. Former President Obama has already called for even more lawyers to join the Democratic cause.
So in the days after November 5, whether you think Trump or Harris just crossed the winning line, that won’t be the end of the matter. As attorneys have lucrative days in numerous courts, the final outcome could take weeks to determine.
Congress is expected to ratify the electoral college result on January 6, in time for the new president’s inauguration on January 20. Four years ago, Team Trump launched more than 60 lawsuits in multiple states aimed at denying Joe Biden’s victory. They all failed, even when the judge was a Republican or a Trump appointee.
I do not pretend that there will be another assault on the United States Capitol by a violent mob, as happened last time when Congress met to ratify the result.
But there will be multiple legal challenges designed to undermine the outcome and the threat of violence may well be just below the surface.
But this time the legal action will be much broader. There are no guarantees it will be resolved before Jan. 6, which could leave it undetermined who would be the new president.
Like four years ago, but on a much larger scale, local officials will be under pressure to “find” more votes, accusations of fraud will be everywhere, some states could even end up with competing electoral college lists. 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 issue, the more inclined some on the extremes of left or right will be to take matters into their own hands. That is why I speak of a potential constitutional crisis that engulfs the country.
Is it unlikely to happen? Maybe. But it’s almost happened before.
In the presidential election of 1876, 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) submitted rival lists of electoral college voters. .
It was agreed that Republican Rutherford Hayes had 165 electoral college votes and Democrat Samuel Tilden had 184. These days it took 185 to win. There were 20 disputed votes from the four states with competing lists. So Hayes needed all 20 to win.
After much haggling, which resolved nothing, a commission was established to decide how to distribute the 20 votes in dispute. Opening day was quickly approaching (which wasn’t until early March these days) and there was still no winner.
Outgoing President Ulysses S. Grant, a Civil War hero for the North, quietly posted soldiers around the perimeter of Washington, as there were reports of armed gangs descending on the capital.
In the end, the slim Republican majority on the commission gave Hayes the 20 votes he needed for victory. He became the 19th president of the United States. But at a terrible price.
In what became known as the Compromise of 1877, Democrats demanded and were shamefully granted that the South be effectively returned to them. Since the Civil War, federal troops and administrators had granted freed black slaves some degree 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, its former slaveholding ruling class was restored to power, and Southern states descended into white supremacy, racial segregation, poverty, lynching, and disenfranchised black communities for almost a century later.
Not exactly a return to slavery, but not much of an improvement for most poor blacks, and it largely remained that way until the civil rights movement of the 1960s.
This is how the United States resolved its last constitutional crisis when there was a stalemate over who power should be transferred to. Who knows what the price could be this time?
Trump, of course, set a terrible example four years ago. He might do it again this year, but this time others might be happy to emulate him.
Trump, of course, set a terrible example four years ago. He might do it again this year, but this time others might be happy to emulate him.
There was a time when American politicians held themselves to a higher standard. Richard Nixon in 1960 and Al Gore in 2000 had stronger reasons to challenge their narrow losses than Trump in 2020. But both decided to put the country first while being prepared to admit they had lost.
Somehow, I don’t see that happening this time, whether Trump or Harris are the narrow losers. The country is more divided than ever and both parties are too enslaved by their extremes.
American democracy could face a huge test in the coming weeks. The hallmark of a democratic society is the peaceful transfer of power according to the way the people have spoken in an election. The United States hit that hurdle four years ago, but still managed to get over the line. Democracy remained intact.
This year that same obstacle could be even greater. The US Constitution could face its biggest challenge since the Civil War broke out in 1860.
Four years ago, the courts and judges did their jobs and the system worked as it should. The rule of law prevailed. I’m optimistic enough to hope for a repeat, after some difficult and wrong turns. But it’s hard not to be afraid.