Storm coming

I am very worried about how the next election will play out. I am more worried than most commenters, hence this post, because as an economist I predict people's behavior by asking what is natural given their incentives and the rules of the game as they are. That thinking leads to a dark place.  

Our democracy has one essential function: a peaceful transfer of power. There are rules of the game. A winner is determined even in a close race. Both sides agree who won, and that the winner is a legitimate office holder. 

We seem inexorably headed to the most divisive election since 1860, in which this mantle of legitimacy is sure to vanish, to horrendous result. 

Ruth Bader Gisberg's death adds both distraction from the task of fixing election machinery -- really, agreement by both sides what the rules of the game will be, and to abide by the results -- and one more pathway to disaster. 

Imagine, as seems quite possible, that  Trump scores an early lead in the days after the election, with a narrow electoral college majority, though losing the popular vote, with 90% - 10% losses in the deep blue cities. Trump declares victory. Blue cities erupt in  protest. 

As mail in votes come in and are tabulated, Biden gets closer and closer and by his party's count has won.

 But lawyers have already fanned out around the country. Every single smudged postmark, questionable signature is challenged by both sides. Conspiracy theories abound. Vote harvesting stories are told. A few bales of forgotten mail are discovered. As the key battleground counties are isolated, we have 50  hanging chad controversies, with warring and disagreeing injections by different courts.  More protests erupt on  both sides. 

For example, the Wall Street Journal reports on Pennsylvania. 

State law clearly says absentee ballots must be received by 8 p.m. on Election Day. 

But the state Supreme Court, recognizing the poor design of the law, 

orders that ballots be counted if they arrive by Nov. 6. If their postmarks are missing or illegible, they will be “presumed to have been mailed by Election Day” unless evidence shows otherwise.  

The journal says, modestly, 

This also increases the chances that the courts will decide who wins Pennsylvania, and maybe the Presidency. 

No, this makes it a virtual certainty that courts will weigh in. If Pennsylvania is within a few thousand votes, it is certain that federal suits will be filed either to force compliance with the clear statement of the law, as admitted by the court, or to force compliance with the court's order. Georgia just had a similar ruling, in which a federal district court judge over-ruled the clear statement of Georgia law. With similar legitimate concerns that the law was poorly designed, and might make it harder for some people to vote. 

I'm not here to opine which side is right in these debates. The point: there is a debate, both sides make good arguments, and the basic rules of the game are up for grabs.  

We will have the 2000 hanging chads all over again -- except in multiple states and counties all at the same time. 

All that ends up in the Supreme Court, on a tight deadline. (There are abundant legal issues, which are beside the point. The suits will be filed, argued heatedly, and people will be in the streets protesting.)

  

This was going to be bad enough. Now suppose that the Senate has flipped to Democrats, 51-49, but the lame duck Senate confirms a Trump appointee to the court. Protests and riots erupt. (There are already protests, here for example, and Trump hasn't even nominated anyone. Another, from "grandma, team resistance:"   "If he tries to appoint someone, it's civil war, and I'll be on the front line." There are demonstrators in front of Senator Mitch McConnell's house now.  I just googled "Ginsburg protest," there's lots more.) 

And then suppose that  court decides, 5-4, or even 6-3 with the new member, in favor of Trump. In the softer gentler era of 2000, many democrats never acknowledged that Bush legitimately won the election. (I read the New Yorker which called it  "stolen" for years afterwards. I have never seen them acknowledge that in the final count, Bush did, actually, win.) Democratic acknowledgement that Trump really did win in 2016 and is the legitimate President of the United States has been soft at best.  Can you imagine they would sit still for the legitimacy of this outcome?  

There will be widespread protest, violence and looting. Right and leftwing "militias" will face off. We are not fighting about abstractions like "social justice." This a good old fashioned fight about political power. 

What do you do if you are president with cities burning? You send in the troops. Republicans will call it "law and order, " "protecting life, property and the rule of law." Democrats will decry this as "martial law," and a "coup." And with some justification:  To their view, protesting such a presidential outcome is the same as protests all over the world, in Hong Kong, in Iran, in Belarus, that aim to topple illegitimate regimes, though those regimes are "lawful" by their laws and procedures for implementing those laws. 

Keep going past an inauguration marred by violent protest to the spring. Trump is President, with Joe Biden still publicly claiming victory, not conceding the election, and daily disorder in the streets of DC. Trump faces a Democratic house and senate. The latter swiftly abolishes the filibuster, and now the two branches are openly at war with each other. No bill gets passed, no appointee is confirmed. 

Even my capacity to imagine chaos is strained from what happens next. States refusing federal power -- the next closest thing to secession -- is not unimaginable. 

Peggy Noonan is worried, but not enough in my view.  On the wait for mail-in ballots to be counted, 

The waiting will require patience and trust. That’s not, as we know, the prevailing political mood. We are riven and polarized. “It is my greatest concern,” Joe Biden has said. “This president is going to try to steal this election.” Mr. Trump: “They’re trying to steal the election from the Republicans.”

She leaves out the army of lawyers ready to go. Patience and trust are not going to happen. 

What many people will fear in such an atmosphere is the possibility of violence.

Me too. It is not insane to start looking at how to board up your house, or other defenses of your home and person for a time of civil unrest. 

There will be charges and countercharges, rumors, legal challenges. There will be stories—“My cousin saw with her own eyes bags of votes being thrown in the Ohio River.” Most dangerously there will be conspiracy theories, fed by a frenzied internet.

I've told one story, but many paths take us to the same sort of disaster. 

There is also the issue of so-called faithless electors, who could deny the winning candidate a majority. In either case, the election would be thrown to the House, where people may be surprised by the rules. They assume that if the Democrats have a majority, as is expected, the House would vote Democratic. But the House would vote not by individual member but by state delegation. There, in the current Congress, the Republicans have an edge.

But, she forgets, the Democrats run the process and enforce the rules. The battle here will be monumental. And-- my central point -- the chance that either side, or their supporters, regards the result as legitimate is very small. 

Risk analysis 101: If there is one path to disaster, by which 5 improbable events have to fail, you're probably ok. But if many scenarios all come back to the same disaster, the chance of that disaster is larger. 

We can imagine similar chaos if Biden comes out on top. Again, it won't be known for sure until weeks after the election. Right wing conspiracy theories float around the internet, how the deep state is hiding mail-in ballots. Armed protesters show up at post offices. Maybe the Roberts court, clearly anxious to keep its legitimacy and not take the huge hit to left-wing reputation that happened in Bush-v-Gore, goes with the Democrats and certifies just enough of their creative vote counting. (As opposed to equally creative Republican vote-counting.) The right wing is confirmed in its view that the deep state finally got their guy.

In my view the right wing, being a little more invested in the whole idea of America and her Constitution as a useful construct, is less likely to view the result as illegitimate and take to the streets in violent protest. They're mighty upset about creeping socialism and all, but that is a policy difference. Plus there aren't many right wingers in the big cities, and there is not much to loot and burn in the Trump-land country side.  But I could be wrong about that. 

(I see some commenters already think I'm wrong on that. Please send in comments with your scenarios. The more credible scenarios we can articulate, and the more bipartisan the danger, the stronger my point.) 

If a Democratic administration and senate make good on their pledge to pack the Supreme Court -- even more likely in face of a last-minute Trump appointment which they will regard as illegitimate -- the right will surely see the packed court, and its decisions, as profoundly illegitimate. The court has no police force, and only has any influence if people regard its decisions as legitimate, if often wrong.  If the campaign to end the electoral college in one way or another succeeds, the right will see the result of the next election as superbly illegitimate. People feel justified in defying power they see as illegitimate, even at the cost of violence.  

Noonan

What a crisis—including a constitutional crisis—may be coming down the pike.

Me: It's worse than that. 

I hope I am thoroughly and completely wrong. I hope that reverence for the United States' constitutional architecture allows a close and hard-fought election, which goes to the second, third, and fourth fail-safe clauses for producing a winner, is sufficiently revered by both sides to avoid this disaster. Just saying that makes me lose hope. Please prove me wrong! 

****

The fix is obvious: the two sides need to agree to the rules of the game ahead of time and abide by the result. We need to know now which ballots get counted, how, and when. There have been opeds aplenty advocating this, for months. This is an entirely predictable disaster. 

But early voting has already started. It's too late for that. (Before any of the debates! Before the inevitable October surprise! Everyone voting on the same day has some merits.) 

The two sides are doing exactly the opposite -- fanning out to play this game to the death. The choice to prepare to fight vs. work together to find acceptable rules, especially with short time and suspicion the other side is cheating, seems like a classic prisoner's dilemma moment. Peace treaties, constitutional moments, take a lot of trust-building. 

Peggy hopes for a Kumbaya moment, 

Get a group of Americans of national stature, people who would stand for the national interest even when at odds with their own party’s. Ask them to come together and speak as one. “It will seem Disneylandish,” Mr. Sabato said, “but distinguished Americans on both sides really need to teach the American lesson to the young and the old—how we have survived and been so successful and prosperous because we had common sense, which so many ideologues have lost.”

He thought they should make it clear, before the results are in, “that we have to do this in the American way, we have to accept outcomes whether we like them or not, otherwise we will dissolve.” They could ask citizens to join them in a pledge of nonviolence. “They should say sometimes demonstrations are useful, sometimes justified, but no violence under any conditions.” He suggested leaders from a wide range of fields—Nobel Prize winners, artists, people of left and right.

I nominate Tucker Carlson and Alexandria Ocasio-Cortez.

That's a nice thought. But really, what needed fixing is the low-level bureaucratic machinery of counting votes. We've had 250 years to get good at the basic task of counting votes. It looks like that is as broken as the rest of our government infrastructure. With that broken,  encouraging people to peacefully accept an outcome they naturally will regard as deeply illegitimate, and which will have big impacts on their lives,  seems a vain hope. 

***

Back to the initial theme. The first task of democracy is a peaceful transition, or confirmation, of power. It doesn't have to be the right person. We have elected horrible people, incompetents, corrupt, and very ill politicians before. Our democracy is not great at producing a technocratically excellent bureaucracy. We take forever to hash out sensible public policy. But when you look back at the sweep of history nothing matters to peace and prosperity more than the assurance of a peaceful transfer of power. When the king dies, the knives come out. Then the cannons come out.  

The key to peaceful transition is that politicians and their supporters must be able to lose an election. Losers and their supporters understand that they may lose on policy issues, but they will have the chance to regroup and try again. They will not lose their jobs or their businesses. They will not be put in jail, dogged with investigations, prosecuted under vague laws, regulated out of business. Their assets will not be confiscated. The machinery of state will not turn on a dime.  The losers will retain rights and places to slow down policies that they really disagree with. The winners will push the rules a bit, but winners will not use their hold on power to utterly disenfranchise the losers in the next round. 

It is this assurance that allows losers to lose with grace, accept the legitimacy of the winners, and work to improve their (loser's) message or shift their coalition to do better next time. It is this assurance that allows both sides to abide by traditional norms and not fight each battle as if survival depends on it, respecting traditional norms. 

Dont' laugh. It's not this way in most of the world, and was not this way through most of history. 

Why are our politics so polarized? Because it is more and more dangerous to lose an election. Regulation has supplanted legislation, and dear colleague letters, interpretations, and executive orders have supplanted regulation.  More and more politics is fought through the criminal justice system and control of the FBI and congressional investigation apparatus. 

The vanishing ability to lose an election and not be crushed is the core reason for increased partisan vitriol and astounding violation of basic norms on both sides of our political divide. Democracy relies on norms more than legal limits. We won't replace a justice within a month of an election, because we trust you won't do it when it's your turn. We won't eliminate the filibuster to cram our agenda through, because we trust you won't do it when it's your turn. And so on. 

Richard Nixon famously decided not to contest the 1960 election, which was very likely stolen from him, because it would not be good for the country. He got a chance to come back, for better or worse.  Neither is likely these days. 

The real way to avoid crises like the coming storm is, in my view, to roll back the power of a narrowly won majority to shove major changes down the other sides' throat, and to extinguish their chances for recovery.  Peggy Noonan's leaders of national reconciliation have a lot of work ahead of them. 

When so many on both sides scream that this is the most important election ever, justifying any means to its victory, the answer is that winning any election by a slim majority should not be that important. Grant less power to the winner, and more rights to the losers. 

****

Update: A wise correspondent makes an interesting suggestion: 

Invention of sort of parliamentary-style deal, as sometimes attends the formation of a new government where that model holds, where the competing parties essentially make a package of deals:  agreements to support a particular candidate to head the government in exchange for a commitment by the candidate to lead and support certain actions and policies. 

For example, Trump concedes but no Supreme Court packing, no medicare for all that bans private insurance, no judicial persecution of everyone who worked for the Administration, and so forth. 

Parliamentary systems can make such deals, and with mechanisms to police reneging. They can enforce a short term with new elections, or loss of confidence vote.  

We just don't have that mechanism. The losing side does not have a mechanism to say they accept a loss in exchange for something else. We have instead elaborate rules to produce a winner,  but limits by rights, norms, institutions, separation of powers of just how much one can change with only a slim majority. The latter is falling apart.  

This is not an argument for a parliamentary system, which have lots of their own problems. 

Another correspondent passes along the Transition Integrity Project report. It's highly partisan, full of evil schemes that Trump may use try to stay in office, and advice for Team Biden to stand up for honesty and integrity. But it also includes incitement to protest, at least disruptive if not violent. My correspondent labels it "Democrat plan to override the election," which is a bit strong, but a useful perspective. But it also highlights strategies both sides are likely to follow, and offers chilling  predictions for civil unrest. Recommended reading. 

Earlier posts explaining the virtues of the electoral college here and here.