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A constitutional crisis in the works

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A lot has been written about the election problems that slow counting of mailed ballots might cause. A new survey by Emerson College reinforces key reasons for such concern. It reports a significant gap in preferences for president between the 42 percent of people planning to vote by mail and 58 percent of people planning to vote in person. People planning to vote in person favor Donald Trump by 65 percent to 32 percent, as those planning to vote by mail favor Joe Biden by 76 percent to 20 percent and the remaining others are either undecided or favor other candidates.

The survey has Biden ahead by 4 points overall, a smaller margin than in most polls. That of course could change. His landslide lead in most polls has narrowed somewhat over the last week. No one will forget that Hilary Clinton beat Trump in the popular vote by nearly 3 million votes but lost the Electoral College. But even if Biden holds or widens his lead, the split between people planning to vote in person and vote by mail spells huge trouble. As usual, nearly all in person ballots will be counted by the time most of us go to bed. But mailed ballots can be sent up to Election Day. They will not be counted, possibly for weeks, until they are received.

That gap between preferences of how to vote means that Americans are likely to go to bed on Election Day having seen correct news reports that Trump is well ahead of Biden. Even exit polls, based as they are on people who show up at the polls, may report that Trump is running strongly. That could then change as the mailed ballots are counted over the period after Election Day. States originally appearing to have awarded those Electoral College votes to Trump may then turn out to have majorities for Biden.

It is not hard to predict what happens if votes are counted and reported in this way. Soon after the polls close and the in person votes are counted, a smiling Trump will come on television and announce for cheering crowds his brilliant victory. He will warn that there are people who will try to steal the election with fraudulent mailed ballots. He will declare that he will do everything in his power to see that such dishonesty does not prevail.

Biden will also come on television, however, his work will be plenty more difficult. His manner will be serious. He will soberly remind his supporters and viewers that they are seeing only the preliminary returns, that tens of millions of mailed votes remain to be counted, that various polls indicate that he will eventually prevail, and that he is certainly not conceding.

Unless most mailed votes are received before Election Day and counted with in person votes, or the total votes are held until all mailed votes are counted, the morning headlines and broadcasts will show that Trump is well ahead, and many readers and viewers will assume that, like in prior years, the person ahead in the most states on Election Day has won.

If the total votes are split between Trump and Biden, as people have been telling pollsters, that will not be the case. But as Attorney General William Barr demonstrated when he released his summary of the special counsel investigation and with a straight face opined that it had found no serious misconduct by the president, an “authoritative” but false narrative which spreads unrefuted for weeks can decisively shape the public opinion.

Following Election Day, as the mailed votes are counted, complaints about irregularities will bubble from the White House. Trump will hold numerous press briefings during which he will talk of efforts by “very bad people” to steal victory from him. A president with dozens of documented lies to his discredit will have no difficulty fabricating fraud from the honest count of mailed votes, and millions of his supporters will no doubt believe him.

The only way this debacle will be avoided is if one of the candidates wins the election so decisively, based on the in person votes and early mailed votes which are counted, that late mailed votes will not reverse an initial outcome. That scenario, alas, seems very unlikely in the race this year.

Henry Aaron is a senior fellow in economic studies at Brookings Institution.

Tags Americans Constitution Democracy Election Government Politics President

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