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Trump Has No Free-and-Fair Path to Re-election

President Donald Trump jokes about the cold as he arrives for a campaign rally at Michigan Sports Stars Park, Sunday, Nov. 1, 2020, in Washington, Mich. (AP Photo/Evan Vucci)

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President Donald Trump jokes about the cold as he arrives for a campaign rally at Michigan Sports Stars Park, Sunday, Nov. 1, 2020, in Washington, Mich. (AP Photo/Evan Vucci)

At no point since Donald Trump filed his re-election paperwork on inauguration day in 2017 has he or his campaign acted with the purpose of winning the most votes, or even of convincing people that he’d be the popular favorite in 2020. All along they’ve accepted a premise—never seriously disputed—that he can only win through another mixture of luck and trickery that allows him to piece together 270 electoral votes as a popular-vote loser.

In the past few days, his campaign has shifted expectations further downward, to admit that even this can only work if Trump-allied judges throw out whole categories of Democratic-leaning ballots. In other words, he can only serve a second term by stealing the election. Trump is an inveterate thief, and if he loses, he’ll be a thief on the run, so at some level all of this is to be expected.

But that’s different than saying it should be tolerated.

Trump has embraced warlord-like status as president of the red states for so long that political journalists barely notice any longer when he threatens to, say, withhold disaster relief from parts of the country that don’t support him politically. The perverse corollary—that he’s embraced minority rule and seeks re-election under the expectation that the majority of the country’s voters want him out of office—likewise goes entirely unmentioned in most campaign coverage.

The flip side of having normalized minority rule as a goal is that the political media now also unthinkingly places an inverse expectation on Democrats. The onus on Joe Biden in this election is not just to win the most votes, but to win enough votes to overcome the right-wing bias of the Electoral College, and then a further margin to overcome the risk that right-wing judges will throw out enough ballots to overturn results in the tipping-point states.

That Biden appears poised to overcome these obstacles doesn’t legitimate the obstacles themselves. Rather than accept them as baked in features of the system, we should turn the onus on the party that has sought to impose them: After all he’s done to subvert this election, what would Trump have to pull off on Tuesday not just to be installed for a second term, but to have a solid moral claim on democratic legitimacy?

Needless to say the odds that Trump can serve a second term free from the stink of his own corruption and cheating are vanishingly thin. 

The national press corps, as of today, simply isn’t wired to think of American democracy in terms of its own legitimacy or lack thereof. When judges reject GOP requests to toss out scores of thousands of ballots, reporters tend to describe the decisions as victories for Democrats, rather than for free and equal people living in a democracy, as if seeking to torch legally cast ballots is a valid electioneering strategy that just happened to fail. When Trump campaign aides tell the New York Times that their plan to win turns on lying about mail ballots and appealing to right-wing judges to throw them out, the Times reports this plan to steal the election as Trump’s “best hope” for victory.

If this is how Trump claims a second term, I won’t consider the United States to be governed by a legitimate leader, and I hope that neither will the Democratic Party nor the professional press corps. We tend to fixate on the number 270 as if it confers legitimacy on its own, as if a candidate couldn’t possibly secure that many electoral votes through such hook and crook that he’d have no moral claim on the presidency. Trump is promising to test this assumption.

Here’s the thing about Trump, though: Even if his lawfare threats turn out to be idle, his original plan—to win in a repeat of the 2016 election—has legitimacy problems of its own. The ugly secret of the past four years—one even most Democrats don’t like to confront—is that Trump’s first term has lacked real legitimacy, too. Trump lost the popular vote by millions, and only won by the narrowest of margins in the Electoral College, after cheating and lawbreaking throughout the 2016 campaign. But for that corruption and criminality, he likely would have lost, and honest people should have no qualms about regarding the actions he’s taken since January 2017, cloaked in a mirage of legitimate power, as ill-gotten.

Amid the shock of election night four years ago, when so much about Trump’s conduct throughout the campaign was unknown, the notion that his 270-plus electoral votes were rightly his went largely uncontested. Ahead of Tuesday, there is, again, surely a great deal we don’t know about what Trump has done to subvert this election. But we know enough to say that the public should view a repeat of 2016, where Trump sneaks through the window of the Electoral College, as an illegitimate outcome, even if the courts toss out zero valid votes.

The 270 electoral-vote benchmark is comforting because it frees us from addressing subjective questions of right and wrong. We can ignore the conduct of the race and any dirty tricks the candidates played and just have faith that the system will spit out the legitimate winner mathematically. But the question of how Trump might actually secure re-election in a legitimate way is about abstract ideals and thus doesn’t have a quantifiable answer. Perhaps there really is a great deal of hidden Trump support in the electorate, and he’ll defy the odds with clear victories in both the Electoral College and the national popular vote. As stable as polling has been for the whole race—indeed for years—it might then be fair to stipulate that he won legitimately. Or at least that his corruption and cheating couldn’t have been enough to put him over the top on their own.

But if the outcome is overdetermined, as it was in 2016, then Trump can’t fairly win. He’s already poisoned the election. Biden’s lead in the polls doesn’t just show him overcoming the Electoral College bias and the margin of litigation—it shows him overcoming Trump’s sustained efforts to cheat as well. Trump has been caught, repeatedly, trying to bribe or extort foreign governments to intervene on his behalf in this election, either by spending money to advance the pro-Trump cause, or by dirtying up Biden. With varying levels of success he has enlisted the arms of the federal government to do the same. He’s managed to include campaign propaganda in food assistance packages and add his personal signature to emergency coronavirus relief checks authorized by Congress, from the Treasury Department, on a bipartisan basis. He tried and failed to send seniors in Medicare’s prescription drug program straight up cash, and he raided hundreds of millions of dollars in public-health funds to create disinformation about his administration’s coronavirus response. He used the White House as a staging ground for his renomination by the Republican Party, and has turned Hatch Act violations, where employees of the federal government publicly electioneer on his behalf, into a matter of routine. Most dangerously, he has stuffed his cabinet with pliant officials (confirmed and acting) who have transformed DOJ, DHS, and the intelligence directorate into arms of his campaign, and which have in turn produced agitprop on his behalf on a rolling basis for weeks.

All of this comes on top of the GOP’s nationwide, institutional efforts to erect barriers to voting, suppress turnout, and challenge ballots—efforts that, we are told, will persist through election night and for as long as it takes to exhaust all appeals in court.

We can’t assign an in-kind value to all this illegal and immoral scheming, let alone know what the polls would look like if Trump were running a by-the-book re-election campaign. But we can say that a candidate who “wins” 270 electoral votes, but no popular majority, through the use of tactics like these has no rightful claim on the power of the presidency. If we don’t say that, if we aren’t prepared to say it, then we risk normalizing more than the most ardent resisters ever feared. Not just Trump’s racism and corruption, not just the antidemocratic aspects of our system of government, or the minoritarian designs of today’s Republicans, but their most chilling conceit: that the U.S. government rightfully belongs to them, and they may use it as they see fit.