Many states are planning on drastically different elections this year and mail-in ballots could be a big game changer.
WASHINGTON – They met virtually on Zoom, four days over two weeks in June, to hold simulations known in the military and intelligence communities as “war games.”
There were 67 players – many of them high-profile critics of President Donald Trump – including law professors, retired military officers, former senior U.S. officials, political strategists and attorneys.
Instead of mapping out a geopolitical conflict, the group peered ahead to the Nov. 3 election, now less than 90 days away, and explored how the race between Trump and Joe Biden could turn into a post-election crisis.
John Podesta, a former top aide to President Barack Obama and President Bill Clinton’s former chief of staff, played Biden. Two outspoken Republican critics of Trump, David Frum and Bill Kristol, portrayed the president.
After gaming out various scenarios, the group said its conclusions were “alarming:” In an election taking place amid a pandemic, a recession and rising political polarization, the group found a substantial risk of legal battles, a contested outcome, violent street clashes and even a constitutional impasse.
“We assess with a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape,” the Transition Integrity Project, which organized the “war games,” said in a report this week.
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“The winner may not, and we assess likely will not, be known on ‘election night’ as officials count mail-in ballots,” the report said. “This period of uncertainty provides opportunities for an unscrupulous candidate to cast doubt on the legitimacy of the process and to set up an unprecedented assault on the outcome.”
Trump predicts ‘election disaster’
In the six weeks since the tabletop exercises, the group’s organizers said their fears of a messy outcome have only grown. Last week, Trump floated the idea of delaying the election, though he was quickly rebuffed by both Democrats and Republicans. And as several states look to expand mail-in voting because of the coronavirus pandemic, Trump has repeatedly warned of fraud, suggesting this year’s presidential race will be the “greatest election disaster in history.”
“He’s trying to create as many possible pre-narratives for claiming that the results are not legitimate,” said Nils Gilman, who co-founded the Transition Integrity Project last fall along with Rosa Brooks, a professor of law and policy at Georgetown University.
“He wants to create fear, uncertainty and doubt so that people feel frozen and paralyzed, and then the man of action, Trump himself, can ride in and seize the day,” said Gilman, a scholar at the Berggruen Institute, a think tank focused on governance.
President Donald Trump (Photo: Alex Brandon, AP)
In its 22-page report, the Transition Integrity Project warned of tactics Trump could deploy to halt counting of mail-in ballots: lawsuits seeking injunctions, shutting down the U.S. Postal Service, or ordering the censure and sequestration of ballots deemed fraudulent.
And yet, while concerns mostly centered on actions Trump might take, the project found that a scenario in which Biden narrowly loses the electoral college while winning the popular vote could lead to outrage on the left, resulting in mass protests challenging the election outcome and perhaps impasse as well.
In addition to Podesta, Frum and Kristol, the participants included former Democratic National Committee chairwoman Donna Brazile, former Republican National Committee chairman Michael Steele and former Democratic Michigan Gov. Jennifer Granholm.
How will the candidates, the media and the bureaucracy react?
The participants role-played the aftermath of four scenarios: a decisive Biden win, a narrow win for the Democratic candidate, a close electoral win for Trump but a 5-percentage point popular-vote loss, and the possibility that the outcome remains in doubt for weeks because of a deluge of mail-in ballots.
They divided into groups – representing the Biden campaign, the Trump campaign, the media, the federal bureaucracy including military, Democratic officials and Republican officials – and forecast how they thought each might react after the election.
Each scenario except for a Biden landslide win ended in violent protests and a constitutional crisis.
“The goal was to illuminate what could happen,” said Brooks, a former Defense Department official. “We don’t have the ability to say, is there a 1% chance that these bad outcomes occur or an 80%? But the collective wisdom is they are sufficiently high probability that we can’t afford not to be thinking about them at least.”
Describing one of the more dire scenarios, the group said a constitutional impasse could result if either the Trump or Biden campaign were to exploit legal ambiguities in battleground states such as Wisconsin, Pennsylvania, Michigan and North Carolina that have Democratic governors and Republican-controlled state legislatures.
If opposing state branches certified competing slates of electors, it would lead to a situation with no precedent in modern U.S. history.
Revisiting the election of 1876
Legal experts compared such a scenario to the 1876 election, when Rutherford B. Hayes, a Republican, beat Democrat Samuel Tilden after both parties in three states, Florida, South Carolina and Louisiana, initially claimed victories. Hayes emerged the winner after he appeased Southern Democrats by agreeing to pull federal troops out of the South and ushering in the end of Reconstruction.
Under federal law, electors meet Dec. 14 to provide their states’ votes for president and vice president. Congress then convenes Jan. 6 to count them. Historically, it’s a formality, but conflicting slates would put Congress squarely in the middle of a fight.
Edward Foley, a legal consultant for the war games, said the “real risk” would arise if Congress is divided, as it is today. He envisioned a situation where Vice President Mike Pence, as president of the Senate, says the vote is complete and Trump has been re-elected and House Speaker Nancy Pelosi says it is not.
“If it turns out that there’s real partisan fighting in the battleground states after election night, that could become very complicated,” said Foley, an election law professor at Ohio State University.
The date to watch: Jan. 6
Left-leaning circles often ponder what would happen if Trump outright refuses to leave the White House even if he is deemed the loser.
The Transition Integrity Project predicted the military or Secret Service would escort the president out on Jan. 20 if Congress on Jan. 6 named Biden the winner and Trump refused to accept the result. But the war games never reached this point. The bigger issue, the group said in its report, is getting past Jan. 6 without a stalemate.
“Out of this war game, we witnessed role-players exercise power nakedly,” said Retired Maj. General Paul Eaton, a military officer of 30 years and a senior advisor for Vote Vets, a progressive-aligned group that advocates for military veterans.
He said he felt like “a naive guy” because he expected “political protocols” and “normal” behavior to regulate the outcome. “But we have seen anything but normal behaviors from the president of the United States over the last three and a half years.”
Attorney General William Barr, who has echoed Trump’s concerns about mail-in-voting, told the U.S. House Judiciary Committee last week that he himself would leave office if “the results are clear.” But Barr said he has “no reason to think” the election will be rigged.
Are the dire warnings overblown and ‘divisive’?
Ari Fleischer, former press secretary for President George W. Bush, slammed one scenario circulated by the Transition Integrity Project – that Trump, enlisting help from the Justice Department or the postmaster general, could try to seize ballots in the mail.
“It strikes me in the era of Trump to be one of the most irresponsible statements I’ve ever heard,” said Fleischer, who was not part of the war games. “I’m perfectly willing, and I do so often, to criticize Donald Trump, but this is pernicious. This is beyond the call. You talk about being divisive.”
He called the suggestion that Trump might not accept election results “dangerous.”
“Where’s the evidence that this is what Trump is going to do according to his accusers? If the results are clear, the results are clear,” Fleischer said.
Fleischer said not accepting results is different than not conceding in the event of an extremely close race, such as the 2000 when Bush defeated Democrat Al Gore. The biggest risk facing the 2020 election, he said, is not Trump rejecting an outcome – but that the race boils down to absentee ballots in a handful of states not accustomed to mail-voting on a large scale.
Study shows voters fear election ‘illegitimacy’
A study from the Democracy Fund Voter Study Group found nearly 1 out of 4 voters – 22% of Democrats and 21% of Republicans – said some amount of “violence” would be justified if the candidate they oppose wins the White House.
Nearly-one third of Americans, 29%, said it would be appropriate if Trump loses but refuses to leave office because he claims he has credible evidence of illegal voting. An ever greater number of Democrats, 58%, said it would be appropriate to call for an election do-over if Biden wins the popular vote but loses the electoral college.
“It indicates the illegitimacy that would surround the election,” said Larry Diamond, a senior fellow at Stanford University’s Hoover Institution who helped lead the study.
Brooks acknowledged the simulations were “totally artificial in a million ways.” For starters, she said it’s possible the players, by taking part in a game with no stakes, may have pushed limits further than would happen in reality. But she said it was the best they could do to simulate actual circumstances under real time.
“More likely than not,” she said the U.S. will have a “more or less normal election” in November with the loser conceding.
But Brooks said: “Events are likely to unfold really fast after Election Day. Those who have thought through what can be done and what the legal options are, and so on, are in a much better position than those who think, ‘Oh that probably won’t come up.'”
Reach Joey Garrison on Twitter @joeygarrison.
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