With the presidential election just twenty-one days away, many look ahead with apprehension. Donald Trump has yet to agree to a peaceful transfer of power, and he and his administration have been actively working to undermine the legitimacy of the electoral process. Joshua Cohen spoke with Reed Hundt to discuss Trump’s strategy for winning. Hundt is chair and CEO of Making Every Vote Count, a nonprofit, nonpartisan organization dedicated to electing the president by a national popular vote. He was chair of the Federal Communications Commission from 1993 until 1997.
Joshua Cohen: Reed, it’s great to have a chance to talk with you about the election. There is much to discuss, but I want to focus on the election disaster scenarios that we’re facing between now and November, and then stretching out after November. But before we get into those gory details, I want to ask you in broad, general terms: What do you see as the stakes in this presidential election?
“Trump has four moves to ensure a victory: deny people the opportunity to vote, not count the votes, have the courts reject the vote, and get Republican legislators to appoint their own electors.”
Reed Hundt: Well, in this election one candidate stands for autocracy. Donald Trump stands for an autocracy in which he, and he alone, is in charge of the rule of law, and he and the businesses that he has allied with will govern America's economy; they’ll set the rules. The only obstacle to this outcome is that Trump needs the electoral college to give him at least 270 electors.
Conservative political commentators have said, flat out, that the next four years of Trump will be “more of the same, or even better”—by which they mean much more of the same. When Trump says that this election is about continuation, he means the continuation of Trump and Trumpism. He does not mean a return to normalcy.
For the continuation instead of democracy, this is the most consequential election in American history.
Of course, there are many flaws in American democracy. However, even in the presidential elections that have been too close to count, the losers have conceded in gracious and pro-democratic ways. I am most familiar with the case of Al Gore because he was a personal friend. In 2000 we heard that he won, and then we heard that he lost, and then he conceded. Then we received more news and it seemed that maybe he hadn’t lost. Then in the process of counting and recounting, the litigation ensured that Gore lost in the Supreme Court without a final recount taking place. It seemed unfair. But at that point, Gore rejected all of the strategies for contesting the election. He delivered an extraordinarily dignified speech in which he committed to the preservation and legitimacy of democracy above winning. Donald Trump is exactly the opposite person. Winning is everything for him, by any means.
JC: I’m sure you’ve heard the slogan that democracy is on the ballot in 2020. Do you think that that’s what this election is fundamentally about? We both watched a recent speech by Bernie Sanders. He began by saying that we’re facing a number of huge social-political challenges—surrounding the pandemic, climate change, disgusting levels of income and wealth inequality, and a host of other problems. But, he said, I’m not going to talk about any of those things—the things that he's devoted his entire adult life to. He said, I’m not going to talk about those things because there’s something more fundamental on the ballot—something foundational, the terrain on which we fight about all those other issues and see if we can make some headway in addressing them. Do you think he hit the right notes on this?
RH: Yes. Racism and democracy are conjoined on the ballot. The majority of Americans don’t think that America should be a racist society or that race should be the defining parameter of either of the two major political parties. Yet a minority identifies partisan politics with racial attitudes, so for that minority the two are conjoined. Of course, you don't have a box to check that says, “Are you for or against racism?” or, “Are you for or against democracy?”
But while it’s certainly true that voting has always been tribal, now we have a party that is almost exclusively identified with white people. That party also prefers minority rule, which the current system gives them a chance to fulfill. That’s the party of Donald Trump. It’s anti-majoritarian and it smacks of racism in all practical effect. And the way for Trump to win, it turns out, is to thwart democracy and to appeal to racist attitudes.
JC: Let’s talk about that. This is an issue that I know you've thought a lot about—both in regard to Trump, but also more generally in regard to the very nature of American democracy. For now, let's focus on Trump. I know there are many people who think that the words “Trump” and “strategy” do not belong next to one another in a sentence; but maybe they do. I know that you think that they do. Moreover, you think that he has a strategy for winning the election in November. It’s a narrow path, but he knows exactly what the path is and how he’s going to walk it. What exactly is his strategy?
“We can’t underestimate Trump, nor the tremendous amount of money, purchased intellect, corporate interests, and talented people on his side. We must assume that they can figure out a strategy.”
RH: You know, it’s a fundamental mistake to underestimate one’s opponent. We can’t underestimate Trump, nor the tremendous amount of money, purchased intellect, corporate interests, and talented people on his side. We must assume that they can figure out a strategy.
Here’s the math. My non-profit, Making Every Vote Count, did a statistical study three years ago: in any election where the winner wins by a national popular-vote margin of 4 percent or less, there’s a one-third chance that the winner does not win the electoral college and the loser does. Trump’s problem lies in getting Biden’s margin to 4 percent or less.
As of now, Biden’s margin is likely going to be closer to 10 million votes. About 145 million people will vote. So, 10 million would put you around a 7 percent range. If everyone who wanted to vote voted, and if all those votes were counted, the probability that the votes would be allocated across the country in such a way that Trump would win the electoral college is vanishingly small when the national margin is that big.
So, what will Trump do? His strategy has to be the following: first, he has to deny people the opportunity to vote; second, he has to make sure that not all the votes that people have cast are counted; third, he has to make sure that judicial rulings on voting and the election are in his favor; and, fourth, he has to have a backup plan in which Republican legislatures take control of the electors if the other steps did not so alter the counting as to give Trump victory in the critical swing states. I’ll just list these states because it’s clear that what I’m telling you is understood by Trump and his allies.
Because the electoral system is winner-take-all—and because the Republican Party is dominant in a large number of states—despite Trump’s obvious failures with respect to the pandemic and the economy, he is still certain to get 125 electors. But there are ten states in which he’s not certain. First, there are the two in which he’s slightly likely to win and really needs to win: Texas and Georgia, which have fifty-four electors (Texas has thirty-eight, Georgia has sixteen).
Then we have five states—Florida, Ohio, North Carolina, Arizona, and Iowa—that have seventy-nine electors. In these five states, if it weren’t for his disastrous presidency this year, Trump would be winning the popular vote. But as of now he’s not. Accordingly, in those states, he has to mount a big effort to deny Democrats the chance to vote, make sure their votes, if cast, are somehow not counted, or, as a last stop, have the legislatures take over.
Even if all of that happens, he’s then in a situation where he still needs to win one more out of the set of Pennsylvania, Michigan, or Wisconsin plus Omaha. This is a very difficult path for chicanery to follow.
So, to summarize, there are two states that should be guaranteed but now aren’t: Texas and Georgia. And then there are five where he’s behind. Finally, to get to 270, he needs one of Pennsylvania, Michigan, or Wisconsin plus Omaha.
With this range of battlefields on which he must fight, he needs a very broad base and a national, large-scale effort by Republicans in these ten states to first discourage or deny Democrats a chance to vote, then not to count those votes, and, third, to have courts throw out the votes for some reason. And lastly, if necessary, get Republican legislators to appoint their own electors despite what may be the apparent wishes of the voters.
Those are the four moves: deny, not count, reject, and ignore.
Let’s put some numbers around that.
In these ten states he needs to make sure that 1.7 million Democratic votes in total are either not cast or not counted. That’s out of 145 million votes that will likely be counted. Is 1.7 million a lot of votes to put aside, deny, or destroy? According to an MIT study from 2016, 4 percent of all mail-in ballots were thrown out. If the Democrats had continued to encourage their voters to choose mail-in voting, they would have run into the problem that throwing away 4 percent of their crucial voters’ mail-in ballots would mean that Trump would pull off his electoral victory.
“Of course, there are many flaws in American democracy. But for even our imperfect democracy, this is the most consequential election in American history.”
What’s more: the 1.7 million votes that he has to make sure aren’t counted are not out of the national pool; they are only out of the 50 million in those ten states. This means that he only has to frustrate 3.5 percent of the votes, which is about the same percentage of mail-in votes that were not counted in 2016.
Nobody is saying these things out loud. But we know, for example, that in Houston and, until last week, Columbus, the Republican governments reduced the number of ballot drop boxes to one. One for all of Harris County, Texas, which is greater Houston. And until recently, one for Columbus, Ohio. This is part of the plan. Both cities are in those ten critical States.
The Democrats are also now realizing that depending on mail-in ballots is too dangerous. They’re saying that, despite COVID-19, they’re going to be door-knocking and using other traditional get out the vote methods to try to get people to show up in person. Why? Because it’s much harder to throw away the ballots cast at the polling place.
There are also over three hundred litigations that have already been started in state and federal courts. Both parties are suing; one to encourage voting, the other to discourage.
JC: Charles Stewart, an MIT political scientist, and Nate Persily, at Stanford Law School, are running a Stanford-MIT Healthy Elections Project. Among other things, they have a complete list of all of the litigation going on as a result of COVID-19 and the election. Last time I looked, there were 340 cases proceeding through the courts, including one from Arizona that the Supreme Court just agreed to hear two or three days ago. Among other things, it takes up the issue of ballot harvesting, where somebody gets a bunch of mail-in ballots from people, and that one person delivers the ballots rather than each person delivering their own. Some of the litigation has been initiated by organizations allied with the Republicans to thwart more expansive voting opportunities—like sending everyone a mail-in ballot, so individuals don’t have to request them. And then you have the litigation initiated by the Democrats, for example, to have more than that one ballot box for an entire county.
RH: Yes, each side is engaging in litigation. On the Democratic side, there are well over one thousand lawyers already engaged in these litigations.
But here’s the thing, Josh, Trump’s war against voting only has to prevail in about a dozen metro areas. He does not need to engage in Kansas. He does not need to deal with New York. He’s going to win Kansas, no matter what. He’s going to lose New York, no matter what. Where he does need to succeed in his strategy are basically the major league baseball cities with a couple of triple A teams thrown in: Houston, Atlanta, South Florida, Cleveland, Columbus, Research Triangle, Phoenix, Des Moines, Davenport, Philadelphia, Pittsburgh, and Milwaukee. That’s it. Every litigation about voting everywhere else hardly matters at least to the national outcome, although the Congressional, Senate and state elections are also critical for democracy to prevail against autocracy. These dozen metros, however, are the voting battlegrounds for the presidency. It’s in those dozen metros that the Trump campaign must ensure that approximately 1.7 million Democratic votes are somehow neither cast nor counted.
JC: I just want to add a clarification about Houston. Houston, as you know, is in Harris County. Governor Abbott determined that Harris County, not just the city of Houston, needed one ballot drop-off location. One. So, they consolidated the places where you can drop off ballots. There are nearly 5 million people in Harris County and there will be one place to drop off ballots. This can do a lot of damage, and it's worth asking: Why is Governor Abbott able to consolidate many drop-off locations into one? The answer is Shelby County v. Holder, the 2013 Supreme Court decision that ruled the preclearance requirements under the Voting Rights Act unconstitutional. The ruling stated that the world had changed so much since the enactment of the Voting Rights Act that preclearance was no longer necessary to protect voting rights. I think there’s a direct line to Harris County from this decision by the Court to end preclearance.
“It was clear, a minute after Ginsburg's demise, that the Trump administration would confirm a justice who could be counted on to vote in favor of Trump on all voting issues.”
RH: That's right. Sadly, Justice Ginsburg did not achieve what she struggled so hard to achieve: to live past the election and the inauguration. It was completely clear, a minute after her demise, that the Trump administration would confirm a justice who could be counted on to vote in favor of Trump, regardless of precedent, on all voting issues. And they had to get her into the job in time to vote prior to the election. There was a lot of conversation around McConnell hurrying so much with Judge Barrett. People were wondering why he was doing so when he had the Senate, which could come back in December and choose a conservative justice then. But this is not really about cementing a conservative alliance, though that’s an added benefit for McConnell.
This is instead about exactly what Donald Trump said it was about. He wants the Supreme Court to be able to count the votes, and he wants the initial round of pro-Trump decisions to occur prior to the election. For that reason, Judge Barrett has to be confirmed immediately. That is why McConnell is planning to have the Judiciary Committee hearings, at the latest, on October 12. At least two members on the Republican side of that committee will still be in quarantine with COVID-19. Then McConnell has to make sure that he gets a majority of the full Senate to show up on October 19 to establish a quorum. The Democrats won't help him with that, so he has to hope and pray that super spreader Donald Trump didn’t infect too many Republican senators. Trump and McConnell need Barrett to be there from October 19 in order to rule on these election cases how Trump has publicly said he expects her to.
JC: We’ve talked a little bit about the first step, denying people access to voting. A key element of that is the repeated assertion of vote fraud, which that Sanders speech very effectively countered. As Jim Rutenberg wrote in the New York Times recently, this is a strategy of vote suppression that goes back Reconstruction, with persistent charges about vote fraud. The final backstop, Reed, in your Trump strategy is that state legislators appoint electors to the electoral college who will, from the Trump point of view, do the right thing. Would you say a little bit about that?
RH: Yes. So, the fail-safe option, from the Trump perspective, is to have the Republican legislatures in the ten previously mentioned states reconvene and determine that under Article Two, Section One of the Constitution, the appointment of the electors is to be in the “manner” picked by the legislature. That means that the legislature of the state will appoint electors from the Republican slate regardless of the voting in the state. Now, if the vote count is to the contrary, they’re asking too much, even of a pro-Trump Supreme Court, to support that. For this reason, Trump has to cloud the counting or have it seemingly almost come out in his favor. Then these Republican legislatures can take this action.
In North Carolina the Democratic governor will veto this. In Pennsylvania and Wisconsin, the Democratic governor will veto this. But in the other states, we can presume that the Republican governor will say, “fine by me.”
Now there are a lot of law professors saying that these legislatures can’t come back in session and that that could never happen. But I think that we have to believe that none of these Republican legislatures will pay any attention to a law that says that they’re not supposed to come back to session. The Republican governor will declare an emergency, they’ll come back in session, and they’ll enact these laws if that is what it takes for Trump to win.
I think that this will be the final effort from the Trump campaign. You would have to be foolish to think he wouldn’t force that. Then he would ask the Supreme Court to approve; he’s already said that he will.
This is where the other part of the election is significant. Have the Democrats won in the House again? Have the Democrats been able to take away the current allocation of power among the delegations in the House? I mean, the Republicans are in the majority in twenty-six of the fifty states that have delegations in the House. If the Republicans no longer have twenty-six, but are down to twenty-five or twenty-four, then the Speaker can say that the conflicting views—a Democratic governor in Pennsylvania certifying Democratic electors and a Republican legislature in Pennsylvania certifying Republican electors—means that she will not recognize the legislatively appointed electors. Similarly, have the Democrats won the Senate? If yes, then the Senate majority leader will adopt the same stance.
“It is not just the presidential election that is significant. We need the Democracts to win Congress.”
If the Republicans no longer have twenty-six delegations, and no longer control the Senate, then the Congressional Democrats have options to save democracy. For example, the Speaker can allow the House to vote to pick the president on the ground that she can’t figure out who has 270 electors. Then we arrive at the second method of choosing the president: the House picks. Under that method somebody has to have a majority of delegations. Either the Democrats control a majority of House delegations and elect Joe Biden, or the election goes to the Senate and the Senate picks the Democratic vice president who acts as president.
Under this scenario I’m assuming the Democrats control both chambers. In reaction, Trump will say to his packed Supreme Court: “Well, I don’t think you should pay attention to the election in November. The House of Representatives that should choose is the one that existed before the election. That’s the one where the Republicans have twenty-six delegations, so I win.” The Supreme Court might go along with that, assuming that they have five or six votes (which is what Trump wants). In this way, we would have the Supreme Court picking the president.
The Speaker, however, can refuse to count the electors picked by Republican legislatures after the election. She can then say that this is a political question that the Supreme Court cannot speak to.
And here the popular vote margin will matter. If the national vote is close, like we saw in 2000, there will be a tremendous feeling across the whole country that it’s just a coin flip and that we should just get it over with. The Supreme Court can call heads or tails and that’s that. But if the constitutional crisis and confusion I outlined occurs against the backdrop of Joe Biden having won the national popular vote by 7, 8, 9, or even 10 million, and Trump has gotten to that final confrontation only by having racked up pro-Trump decisions by packed courts, then I think that popular opinion will make a difference. If the Speaker stands her ground on this topic, then she will have her way.
JC: I’m confused about one thing in that last set of remarks that you made, Reed. You said earlier on that the chances of Trump winning the electoral college with a national popular vote for Biden in the range of 7 percent were vanishingly small.
RH: In a full and fair count.
JC: In a full and fair count, right. But if the scenario that we’ve discussed involves compressing the count in particular states, strategically in the states mentioned, then that also means compressing the national popular majority that Biden has.
“The national vote, and the margin by which Biden wins it, matters. The magnitude of the popular majority will make a big difference in public opinion, and what proceeds from there.”
RH: Not by that much, though. Assume that the national vote is for Biden by 10 million, and assume that the suppressed votes total 1.7 million. Biden will have still won the national vote by 8.3 million. Then, assume also that the whole country will have witnessed judicial rulings upholding the suppression for two months. Those two dimensions will affect the public opinion—the national count that is roughly agreed upon and the set of judicial rulings that produced a different outcome. If we see two months of pro-Trump court rulings that seem to go against the will of the people on a national level, I believe that the magnitude of the popular majority will make a big difference.
Now, I know I’m expressing a hope and a prayer that this showing of national public opinion might even deter the Supreme Court from doing the wrong thing in the final ruling, and might support Nancy Pelosi in standing up for the right thing.
JC: As Ronald Reagan used to say, where there’s shit, there must be a pony hiding someplace. I was wondering, where is the pony here?
RH: A large and truly democratic expression of preference for Biden across the country could be critical to winning this election, even though, in our system, the national vote doesn't have anything to do with the awarding of the electors in North Carolina, or Pennsylvania, or any individual place. Hopefully within the ranks of the Republicans on the Supreme Court, or the Republican state legislatures or the Republicans in Congress, someone would recoil from the confrontation I’ve described. Someone I hope would not risk the continuation of democracy and instead would support Joe Biden to be president.
JC: I think that the real foundation of hope for you is that there will be an overwhelming vote against Trump in November, and that machinations subsequent to November to undercut that vote would be seen as unacceptable or would be rejected by public opinion. Here, maybe you share the hope with Lincoln: “Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?”
“A vote that assumes that the national popular vote is relevant, despite the fact that the Constitution says that it isn’t, is indispensable in political terms.”
RH: Yes. I am arguing that a really big vote—a vote that assumes that the national popular vote is relevant despite the fact that the Constitution says that it isn’t—is actually relevant in political terms. This argument circles back to support democracy in another way. A big national vote for Biden also means the Democrats are going to take the Senate, and that the Republicans won’t have the twenty-six delegations in the House.
Under these circumstances, Republicans that still try to continue the Trump presidency by hook or crook would lose in the next elections at many levels in many different states. That may strengthen the likelihood that the jerry-rigged system somehow will resist the Trump administration’s anti-democratic strategies.
JC: Yes, that is ultimately founded on Lincoln’s patient confidence. We can hope that popular repudiation will be so strong and unequivocal that the worries you have described will dissipate.