TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. This election has not only been a political contest, it's been a stress test of our election system and how it holds up in a divisive time, a time of disinformation and a time when the president was unwilling to say that he'd accept the vote if he lost and peacefully hand over power. The election that could break America is how my guest, Barton Gellman, described it in an article published in the November issue of The Atlantic.
He updated that story earlier this week in an article titled "How Trump Could Attempt A Coup" about the legal strategies of the Trump and Biden teams to win in the courts if the election is contested. Gellman writes, (reading) our electoral system was not built to withstand a sustained assault on its legitimacy.
Gellman is a staff writer at The Atlantic. He wrote extensively about the expansion of executive power during the George W. Bush administration and is the author of a book about the Cheney vice presidency called "Angler." He's also the author of "Dark Mirror: Edward Snowden And The American Surveillance State."
Bart Gellman, welcome back to FRESH AIR. So you've been predicting all the ways that Trump could contest the election or sabotage the vote. Last night, Trump claimed victory, and he said he'd petition the Supreme Court to demand a halt to the counting. He said he wanted all voting to stop. What is the impact of that on the integrity of the voting process?
BARTON GELLMAN: Well, it's just a reckless challenge to the whole legitimacy of this election. This is, frankly, a wannabe-dictator move. He is saying that the counting must stop when it has not nearly finished. He is saying that uncounted votes don't get to count. It's extraordinary. It's unlike anything that's happened before in our history. And it's a huge and dangerous challenge to our electoral system.
GROSS: The Supreme Court did stop the Florida recount in 2000, in the Bush-Gore contest, but the Supreme Court said that was not to be used as a precedent. What would it take for Trump to actually take the contest to the Supreme Court?
GELLMAN: Well, that's the million-dollar question. Good lawyers can find ambiguities in what seem to be unambiguous rules. That's their job. This litigation could go any number of directions. We already have seen one taste of it in Pennsylvania, where the Republican Party and the Trump campaign have brought suit to prevent the curing of mail-in ballots that have errors in them.
People mail in ballots. They're notified that something's wrong with it. Maybe they forgot to sign or something else. And the Pennsylvania secretary of state made available provisional ballots for those people. So you could come in and say, I got notified that my absentee ballot was messed up. I would like to vote now. And then they do what's called a provisional ballot in which you get to vote. But it's set aside to be examined in the canvass after the voting is finished.
The Republicans say this opportunity to be counted should not be given to those voters. We'll see all kinds of similar suits that are intended to cast the completion of the mail ballot count as somehow illegitimate when it's actually fundamental to a normal, fair accounting of the election.
GROSS: You wrote that the worst-case scenario is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. What do you mean by that?
GELLMAN: What I mean is that there's not one, single referee - even the Supreme Court - in our system. There's no official who can blow the whistle and say, the game is over. Here's the score. You guys win. You guys lose, and that's the end of it. And then any complaint about that after the fact is just bellyaching, and it has no consequence. That's not the way our system works. We don't have a singular authority. There are county authorities that count their votes. There's state authorities. There's Congress. There's the Electoral College. There - and there are courts.
And what Trump can do if he's sufficiently ruthless - and I think he's proving that he is - is he can do his best to keep changing forums whenever he gets an answer he doesn't like to simply reject it. And we have seen this administration prepared just to flatly reject the requirements of law. Trump can also try to maneuver in the Electoral College to persuade Republican legislatures in states that are still in contention to bypass the popular vote and simply appoint electors for Trump.
GROSS: How would that work? The Electoral College is so complicated and confusing for most of us. Describe the scenario that would enable legislatures to basically annul the electors that voters voted for and the Republican legislatures in Republican-led legislatures choose their own electors.
GELLMAN: Well, we're accustomed to and we take for granted that we vote for the president, and then state by state, the votes are tallied up. And then we know there is such a thing as an Electoral College and electoral votes, but we assume that the state vote is going to determine the state electors.
Now, the Constitution, way back at the founding, left it up to the state legislatures entirely how to allocate their electors. It is the legislatures that have granted the people the power to vote. And the Supreme Court has said, first in the 19th century and then again in 2000, in the Bush-against-Gore case, that the state legislatures can take back that power at any time.
Now, it would feel rather like a coup if the legislature said, well, the people of my state have voted for Biden, but we're actually going to hand the electors to Trump. But it might be within their power to do so under Supreme Court precedent.
And so we're recording this Wednesday morning. And as of right now, the scenario is that in a state like Pennsylvania, there are 1.2 million votes left to count, and those are the mail-in ballots in Pennsylvania. Trump is ahead, but not so much that Biden can't catch him. The mail-in votes have been running about 4-to-1 for Biden because Democrats voted much more by mail than Republicans did.
So by the arithmetic, it is likely that Biden is going to catch and surpass Trump. Trump is going to declare that that is fraudulent. If he persuades the Pennsylvania legislature that that is not an accurate count, that the vote has been rigged, that the vote is being stolen, the Pennsylvania legislature, which is dominated by Republicans, could vote to send Republican electors to be counted by Congress on January 6, whether or not the people have voted that way.
And by the way, that is also true in Wisconsin and in Michigan, which are also controlled by Republicans in the legislature.
GROSS: How likely a scenario do you think that is?
GELLMAN: I honestly don't know how likely it is. I know that the Trump campaign had done some contingency planning in which they considered this possibility. I know that there was some conversation between the Trump campaign and the Pennsylvania Republican leaders ahead of the election. I know this because the Pennsylvania Republican leaders told me so on the record for my Atlantic article. And I know that the Pennsylvania legislature is aware of its power and giving some thought to it. It would be an extraordinary move. It would be without precedent in 150 years, but it may be something that the Trump campaign is willing to try if they think they can get other Republican-elected officials to go along.
GROSS: If the Pennsylvania state legislature decided to pick their own electors - there's a Democratic governor in Pennsylvania and also in Wisconsin and Michigan. What could a Democratic governor do to try to overrule a Republican legislature from picking its own electors?
GELLMAN: Well, we've seen this movie before, only once in this country, and that was in 1876. What could happen - what did happen then is that the governor of a different party from the legislature sent his own competing slate of electors to be counted. So there's an effective deadline of December 8 to choose electors. We're going to be in litigation between now and then almost certainly. The - let's suppose that the Republican legislature passes forward a slate of 20 people - electors are actual human beings - who are committed to Trump. The Pennsylvania governor, who is a Democrat, will then certify the results of the actual vote and say he's appointing electors for Biden. Then on December 14 when the Electoral College casts its ballots, there will be 40 people purporting to cast 20 votes on opposite sides. And then it becomes a problem for Congress. It may also be a problem in the courts to decide who were the valid electors, but Congress ostensibly has the power to decide which electoral votes count. It has that power from the 12th Amendment and it has that power under the Electoral Count Act, which was passed in the late 19th century. So I think a court might or might not agree to accept jurisdiction over the question. But what this tells us is that there are very significant constitutional milestones, December 14 for the Electoral College, January 6 for the new Congress to sit and decide which electors will count, if any, from a contested state - that we have not had to pay attention to before because they were largely formalities. And this time might become quite decisive.
GROSS: It's really remarkable. With the Electoral College, there's this huge kind of constitutional, confusing bureaucracy in a way standing between individual voters and the way their vote is actually registered.
GELLMAN: Right. They're a proxy for the popular vote in today's terms, but that's not the way they were created. They were created to be the actual deciders. The state legislatures would decide whom to appoint. The electors would cast ballots. And that's how we chose a president. The people were not part of the formula. That's changed.
GROSS: Do you think that the - when the Electoral College was created, it demonstrated a lack of faith in the ability of voters to actually choose the president?
GELLMAN: Well, as we know, the founders had a very narrow conception of who were allowed to be voting citizens. They were allowed to vote for their own legislatures, their own state and their own state governors. But it was only white men of property who were allowed to vote at all. And even so, the founders did not trust them to make careful judgments and to be educated in their exercise of the franchise. And so they interposed those state legislatures and the electors as a check on the passions of the people. It's only been as our system has evolved, first of all, to expand the franchise to non-property owners, to Black people, to women on the one hand and to render the Electoral College largely a formality - I mean, those are things that have happened in our democracy as it has evolved. And the maneuvering that Trump is now contemplating would be to take us back to an era in which the people's vote didn't count.
GROSS: Let me reintroduce you here. If you're just joining us, my guest is Barton Gellman. He's a staff writer for The Atlantic, and his latest articles are "The Election That Could Break America" and "How Trump Could Attempt A Coup." We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to the interview I recorded early this morning with Barton Gellman, who is a staff writer at The Atlantic, and his two latest articles are titled "The Election That Could Break America" and "How Trump Could Attempt A Coup." So we've talked a little bit about, like, Trump's strategies to contest the election. The Biden team has been gaming out legal strategies to contest any Trump legal strategies contesting the election. So what are some of the things that the Biden team has been preparing for? You write that they've prepared pre-drafted emergency motions in state and federal courts. What are some examples of those pre-drafted emergency motions?
GELLMAN: Well, they tried to do a quite systematic exercise in which they imagined every claim that Trump could make about the fraudulence or illegitimacy of the election or every move he could make using his executive power to interfere with the election. So they considered what would happen if he had called up the armed forces and sent them, as he did in several cities around the country over the summer, into Democratic strongholds in battleground states and took control of the apparatus of the balloting. They knew what emergency motions they would file in which courts, and they were already drafted. They could be in court within the hour for any of these scenarios. They considered what would happen if Trump ordered a halt to delivery of postal ballots on grounds, for example, that there were allegedly reports of foreign fraud. Those things didn't happen. But they are also well aware that Trump could challenge the counting of mail-in ballots. He's been trumpeting his intention to do so for some months now. And they've considered every variation they could come up with on that, and they're ready to fight them out in court. I mean, I have to emphasize, this is not just a question of litigation where there's one side and there's another side and who knows where the truth lies. Trump is trying to mount an assault on something very, very simple and elementary in a democratic system - is that people cast their ballots and then you count them. And he's trying to stop the count. And that is without precedent, and it is not a normal litigation strategy.
GROSS: Well, there is one precedent in Florida from 2000, when the Supreme Court stopped the recount, but they said that...
GELLMAN: That was a recount, and not a...
GROSS: That was a recount, and also the court said that should not be used as a precedent.
GELLMAN: The court did say it was ruling uniquely in this one case, and it should not be cited by others in future cases. But let's keep in mind, the count went forward as it normally does in Florida, and the recount was beginning in a number of counties. And what happened was that Gore asked for and received from Florida authorities - he asked for a recount primarily in a small number of urban jurisdictions where he thought that Democratic votes had been lost. The Supreme Court eventually found that this was a failure of equal protection and that if you didn't do the recount in the whole state, then the rules might be applied differently between one jurisdiction and another, and that would be a civil rights violation. And anyway, there wasn't time to complete the recount. None of those things obtain here. We have nothing but time. We've got plenty of time to do the initial count. We're talking about the basic act of arithmetic of an election, which is figuring out who voted for whom. The cases are not parallel at all.
GROSS: So tell us about the Transition Integrity Project, which tried to game out possible scenarios after the election if the election was contested.
GELLMAN: The Transition Integrity Project was the creation of two professors who recruited a large team of journalists, former elected officials - including a former governor - former political operatives who were not involved in this election, election lawyers and so forth. And they were appointed to be on teams. One team would represent the Trump campaign and one would represent Biden. One would represent social media, one would represent the mainstream press and so on. And one would represent the courts. They tried to game out four scenarios, one of which was the scenario we have now, which is a close election which hangs on a slow count.
And in several of the iterations of that scenario, it was even more closely attuned to what we're seeing right now, which is a phenomenon called the red mirage, which is that in big northern states - in Pennsylvania, Michigan, Wisconsin - the early balloting favors Trump because they're counting only the in-person Election Day votes. And those are dominated by Republicans because Trump convinced Republicans that mail-in balloting is riddled with fraud and untrustworthy. Democrats, who took the COVID epidemic more seriously and who did not believe Trump about mail-in ballots, dominate the mail-in voting. And so when you count only the same-day votes first, then Trump pulls ahead.
Gradually, over a period of days, when the mail-in ballots are counted, the likelihood is that Biden support will grow and that he will surpass Trump in all three of those states. And the Transition Integrity Project tried to game out what Trump would do. And one of the things that they assumed he would do is declare fraud, declare that his victory was being stolen from him. And that was not, frankly, a very hard prediction to make. And it has come true.
GROSS: You asked the people who were running this project, like, so who won in this gaming exercise, Trump or Biden? And you got a very interesting answer.
GELLMAN: I got a very frightening answer, to be honest. It was we don't know. I asked who was sworn in, who was inaugurated. They said they got to turmoil on the streets and significant violence and deadlock in courts and rival slates of electors being appointed in state legislatures, and they didn't know how it would come out. And that, I'm afraid, is the position that we're in as a country right now. We're being tested in a way that we have not been tested in a very, very long time, and to some extent, in some features of it, we haven't been tested ever because we have never had a president who denied the legitimacy of the vote, who told people you can't trust anyone but me to say who won. I mean, that is authoritarian behavior that, if it's allowed to stand, will make us a very different country than we have been.
GROSS: Well, let me reintroduce you here. If you're just joining us, my guest is Barton Gellman. He's a staff writer for The Atlantic, and his latest articles are called "How Trump Could Attempt A Coup" and "The Election That Could Break America." We recorded our conversation early this morning. We'll hear more of the interview after we take a short break. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the interview I recorded early this morning with Barton Gellman, a staff writer for The Atlantic. His latest articles are titled "The Election That Could Break America" and "How Trump Could Attempt A Coup." He's also the author of a book about the Cheney vice presidency called "Angler," and that was in part about the expansion of executive power during the Bush-Cheney era. So if you see this current election as a stress test of our electoral system in a time of division, in a time when the president has refused to say he would willingly, peacefully hand over power if he loses, he's already said he was going to - you know, before the votes were completed, he said he was going to take the election to the Supreme Court. So if you see this election as a stress test of our system, how are we doing so far as of Wednesday morning when we were recording this? Let's start with the ways that you think our system actually held up in ways that you were not sure it would.
GELLMAN: Well, there were several important items of good news on Election Day. There was no significant breakdown of the process under the stresses of COVID and the stresses of the highest turnout in a century. The voting procedures largely worked. You know, there was a burst water main in Georgia that has delayed the accounting of the vote in the Atlanta area. There were ordinary kinds of small breakdowns, but largely the system functioned. Trump did not send troops into the streets. His supporters did not run wild. Militias did not appear at polling places to intimidate voters. The vote proceeded about as smoothly as votes do proceed. They're always a little bit messy, but this was not especially messy.
I would say also that there was an important test that was passed by Fox News, which has generally, during the course of the Trump administration, portrayed an entirely different world than the mainstream news media have done that has distorted facts and ignored facts and fundamentally provided a worldview that was favorable to Trump. But their decision desk, their group of pollsters and political scientists who call election results as they see them, functioned normally in this election. It held on to its integrity. It called elections according to norms for pollsters and political scientists. And in fact, it was the first to call Arizona for Biden instead of Trump and thereby enraged the president and his campaign staff.
So Fox News is not portraying a fundamentally different reality than exists. And the larger news media have learned to defend themselves against Trump's sort of genius for attracting attention and shaping debates. He came out and declared victory spuriously, and that was not the big headline in The New York Times and The Washington Post. You didn't see giant headlines in which it's a Trump declares victory, Biden disputes. They didn't let Trump set the election that way. Their headlines were counting continues in close race, and they relegated Trump's false declaration of victory to a secondary place.
GROSS: The Trump campaign had something called Election Day operations that were planned. What were those operations, and did they actually happen?
GELLMAN: Well, there was a lot of talk about recruiting an army of 50,000 strong volunteers. They called it the Army for Trump. And there were sort of marshal notes that were struck in describing what it would do. And it was there to stop the election from being stolen. It appears to have been a - by and large, a more traditional poll-watching operation, which did not physically interfere with voters or, by and large, did not engage that we know of right now in large-scale intimidation behavior. That was something that was anticipated. And we got a much milder case of it than we expected.
GROSS: So do you think our election system depends on people functioning in an ethical way following the rules?
GELLMAN: It does because election authorities are, by and large, partisan authorities. They're either elected officials or, like, a secretary of state, who can be Democratic or Republican, or they're appointed by elected officials, and they have to care about the fundamental job they have, which is to allow people to vote and to count the votes. And so far, we're seeing encouraging signs that the count is going forward, as it's supposed to. But when Trump comes out and says there was fraud here, the election is being stolen from me, we're going to have to see how Republican-elected officials respond to this. They have been committed for years, for decades now, to a narrative of pervasive voter fraud that simply doesn't exist. And that has been the excuse for trying to restrict the franchise to their political adversaries. We've got to see now whether they go along with fictitious claims of voter fraud, if they go along with the president's attempt to stop the voting. If you'd asked the Republicans ahead of time whether they're in favor of counting all the votes, they would surely have said yes. Some of them were asked and did say that. What's going to happen now that the president is saying otherwise - they've been afraid to buck him. They've been afraid to challenge him for the entirety of his presidency. And I fear that they are not going to come out strongly and say, wait a minute, wait a minute, this is a democracy. People cast their votes. Let's count them.
GROSS: Let's take another break here, and then we'll talk some more. If you're just joining us, my guest is Barton Gellman, a staff writer for The Atlantic, and his latest articles are titled "The Election That Could Break America" and "How Trump Could Attempt A Coup." We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to the interview I recorded early this morning with Barton Gellman, a staff writer for The Atlantic. His latest articles are called How "Trump Could Attempt A Coup" and "The Election That Could Break America." So getting back to looking at this election as a stress test of our system, there were several judicial decisions that were made during this election. What about judicial decisions regarding the Postal Service?
GELLMAN: Well, that was very interesting. The Postal Service had been badly damaged administratively by the - by a bunch of firings and procedural changes that were brought in by the new postmaster general, a guy named DeJoy, who has been a big campaign contributor to Trump. It was regarded by Democrats as deliberate sabotage. The case for that is slightly unclear. But what we do know is that the post office became much less efficient at delivering first-class mail in general and at delivering ballots that - statistics that a court required it to keep showed that it was falling short of its promised delivery times in a number of states, including battleground states. And so Judge Emmet Sullivan of the D.C. District Court ordered the Postal Service to conduct a special sweep no later than 3 p.m. on Election Day of all its post offices to look for any undelivered ballots whatsoever and to make sure that they got delivered on Election Day in time to be counted. And the post office actually disregarded that order, which is an extraordinary thing. It is a relatively rare thing. And the thing about our legal system is that it assumes that the executive branch will execute the law. The system is not very good at handling a situation in which a court makes a decision and the executive doesn't execute it. And it's also the case that no matter what sanctions may be applied now, it's too late. Those ballots were not delivered. They won't be counted. There's no do-overs in a federal election. And so whatever penalty is paid by the Postal Service or its leaders will not undo the damage.
GROSS: Do we know how many votes might have been lost because that sweep was not done?
GELLMAN: We do not know that now. I imagine we will know it because I believe that the court will require a careful accounting under oath. And I believe there are enough people in the Postal Service who have an interest in telling the truth that we will find that out. And it may not turn out to be enormous numbers. We just don't know. But we do know is that the Postal Service, in effect, said deadline, what deadline? We don't have a deadline and did not conduct that 3 p.m. sweep.
GROSS: Do we know - I mean, will we ever know the impact of the slowed down postal operations, decommissioning 10% of mail sorting machines in the post office, eliminating many ballot drop boxes, voter suppression, Trump casting doubt on the security of voting by mail, the pandemic? Will we ever know? Could we possibly ever know the effect of that on the final vote tally, like, all the votes that could have been but weren't, all the votes that were but weren't counted?
GELLMAN: Look, in some cases, we can see what happens. So in Texas, in the county that incorporates Houston, the Republicans attempted to disqualify all of the ballots - and there were 130,000 of them - that had been cast in drive-in ballot boxes that Texas had set up. And the Republicans said, we think that drive-in ballots are illegitimate. And these were plans that had been announced months in advance. They waited until after the ballots had been cast to say that they should all be thrown away. These are votes cast in a Democratic stronghold. Now, if they had won that suit, we would have known 130,000 ballots had been thrown away. It's as though they had stood at a polling place and there were 100 people in line and they said, your votes don't count, you can go home. And then they did that a thousand times. That would be the equivalent. But in this case, the Republicans lost that suit.
When they win, then we don't know how many votes are being suppressed because the votes are never cast or they don't arrive in time because of the postal delays. We will know the number that are not counted. We'll start to get those tallies after the fact. We will know how many votes, for example, arrived late because the Postal Service didn't deliver them by Election Day. They will eventually all be delivered, and we'll know how many came in late and were disqualified. We won't know necessarily how many votes were never cast because of decisions made to make it harder, for example, to get rid of drop boxes or again in Texas to assign every county the same number of drop boxes, which was one, whether the county had, you know, 3,000 people or over a million people.
GROSS: Legally, you know, once this enters the legal system, if it does, the attorney general, William Barr, has really been a Trump loyalist. There's a new Supreme Court appointee just in time for the election, Amy Coney Barrett. And so Trump now has three appointees on the Supreme Court. What do you think the significance is of the three Trump appointees on the Supreme Court and of the seemingly close ties between Barr and Trump if we get into legal contests?
GELLMAN: So it's good that you divided that question because they are two different things. Let's start with Barr and the Justice Department. In the ordinary course of events, when there is litigation in court - and there is often litigation in presidential elections - then the - you see the parties to the litigation are the campaigns or the Republican and Democratic National Committee and so forth. You might even see state legislatures as parties to the action. What you would not normally see is the Justice Department. You would not have the Justice Department intercede on one side or another. We have already seen that William Barr, the attorney general, is prepared to enter into matters of the private interest of the president - for example, whether he's libeled someone in a sexual assault case - that are not normally considered to be presidential or governmental litigation. And he has interceded on Trump's side. So we'll see whether the Justice Department throws its weight behind the president in these purely partisan lawsuits. I suspect that it may, and that would be unique. It would not be something that we've seen before. On the Supreme Court - and again, a question has to get to the Supreme Court. And the Supreme Court does not have to grant certiorari, so it doesn't have to hear the case if it doesn't see a legitimate question of law being presented. And there will be some justices who are tempted not to get involved in this case because deciding two elections in 20 years is a profound threat to the legitimacy of the court.
I mean, why do we allow nine unelected officials to decide the course of the nation? People are going to be asking that more and more if it just seems to be one more partisan forum. But if it gets to the court, then, yeah, it could make a big difference to have three Trump appointees, and will make a big difference to have a 6-3 breakdown of conservative versus liberal justices, or Republican versus Democratic, if you want to put it that way. Their votes don't always comply with partisan - this partisan division, but they do far too often in a way that raises doubts about the fairness of the court.
GROSS: One more thing before we run out of time. If there's one thing that you could change about America's electoral system, what would it be?
GELLMAN: Well, I'd abolish the Electoral College. I think that the distancing of the votes of the people from the outcome is something that we just shouldn't tolerate. We shouldn't tolerate a system that enables the loser of the election, when you count all the votes, to be the president. We've had that already now twice in 16 years. And to have it happen again now, when Joe Biden will almost certainly have received a majority of the popular vote, is damaging to the whole fundamental project of democracy. And it also creates a lot of room for backroom maneuvering and litigation.
GROSS: Well, Barton Gellman, thank you so much for being with us.
GELLMAN: Thanks for having me.
GROSS: Barton Gellman is a staff writer at The Atlantic. His latest articles are titled "The Election That Could Break America" and "How Trump Could Attempt A Coup."
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GROSS: After we take a short break, jazz critic Kevin Whitehead will review a new album by cornet player Ron Miles that also features guitarist Bill Frisell and pianist Jason Moran. This is FRESH AIR.
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