Trump's tweet about delaying the election is just the beginning of a much more dangerous plan

'We can't simply assume that Trump is as dumb as he seems… this is a setup for something else,' one legal expert told me. A Florida-based Republican told me his colleagues are now prepared 'to do anything' to keep Trump in power

The president has been laying the groundwork about de-legitimizing the election for a few months now (Drew Angerer / Getty Images )

If you ask a Joe Biden supporter to describe the former Vice President’s positive attributes, you’ll hear a lot about compassion, empathy, and experience.

But after today, some might be tempted to add soothsaying to the list.

Shortly after the Commerce Department announced that the pandemic-driven economic crisis had taken a 32.9 percent bite out of America’s annualised Gross Domestic Product, Donald Trump turned his presumptive Democratic opponent into a prophet Thursday morning by way of a single tweet.

After making the baseless claim that states’ use of vote-by-mail will make November’s election (which he is losing according to most reputable polls) will be “the most inaccurate and fraudulent” vote in American history and “a great embarrassment,” Trump suggested delaying it “until people can properly, securely and safely vote”.

Such a suggestion, the likes of which has never been made by any of Trump’s 44 predecessors, was on Biden’s mind three months ago, when he told attendees at an April virtual fundraiser: “Mark my words, I think he is going to try to kick back the election somehow.”

Trump’s tweet, which a Democratic National Committee spokesperson dismissed as “nothing more than a desperate attempt to distract from today’s devastating economic numbers that make it clear his failed response to the coronavirus has tanked the US economy and caused tens of millions of Americans to lose their jobs”, launched yet another round of media fact-checks. All of these dutifully noted that title three, chapter one of the United States Code unambiguously states that presidential elections shall take place on the first Tuesday after the first Monday in November, four years after the last presidential election. That cannot be changed by a president, no matter how much he wills it.

Democratic Representative Jamie Raskin of Maryland, a former constitutional law professor at American University’s Washington College of Law, said in a phone interview that he was not surprised by Trump’s sudden interest in delaying an election he is likely to lose.

“Authoritarians try to postpone elections to a time of their liking, but we don't do that in the United States,” said Raskin, who noted that the United States successfully conducted presidential elections during a civil war and through two world wars. He added that Trump’s suggestion of a delay and his push against allowing Americans to vote by mail are part of a “full-blown assault” on this year’s election.

But according to the man who taught Raskin constitutional law at Harvard Law School, an attempt by Trump to delay the November election is not the nightmare scenario Democrats need to worry about.

“He must know — or even though he's personally very ignorant, his lawyers must know — that three US code chapter one, which sets the date for the election, can be changed only by Congress,” said Harvard Emeritus Professor Laurence Tribe, author of the seminal law school text on the constitution, American Constitutional Law.

Tribe posited that because only Congress can change the date of the election, Trump is positioning himself to blame the Democratic-controlled House of Representatives and Speaker Nancy Pelosi for making it impossible to pass any sort of measure to carry out his demand, and to pressure Republican-controlled state legislatures to nullify the results should he lose in states like Pennsylvania, Wisconsin, or Michigan.

“Once he blames the House, then I think it's his plan… to try to get a red state like Pennsylvania to invoke three USC section two, [which allows state legisatures to appoint electors directly] and claim that the election failed because of fraudulent mail-in ballots, and therefore the state legislature should name its own slate, rather than rely on the results of the popular election,” he said. “That's really what we have to be prepared for. We can't simply assume that the guy [Trump] is as dumb as he seems… this is a setup for something else.”

While Raskin stressed that the President appears to be focusing on many electoral “choke points” in his push to preemptively cast doubt on a losing result, he concurred with his former law professor’s assessment that Trump looks to be angling for GOP-controlled state legislatures “in swing states where the popular vote has clearly moved in a Democratic direction like Wisconsin, Ohio, North Carolina, [and] Pennsylvania” to step in to save him from an embarrassing defeat.

“What they would like to do is to use Republican control over legislative bodies to prevent the appointment of electors for the winner in the popular vote, so the trick will be to create these little electoral Reichstag fires, which they can use to claim election fraud in some trumped up way,” he added.

One top swing state Democrat — Ohio Democratic Party Chair David Pepper — believes the massive corruption scandal that has enveloped the Ohio legislature’s GOP caucus would cause Republican legislators to think twice about engaging in any electoral shenanigans.

“My hope is that they are so chagrined and embarrassed by the scandal that just erupted that they would not they would not do that,” Pepper said when asked whether he believed the GOP-controlled state legislature would step in to reverse a Trump defeat in November.

But Pepper cautioned that the rampant gerrymandering that Ohio Republicans have engaged in has allowed some “true extremists” to be seated in Columbus and pointed to GOP legislatures in other states that have moved to strip power from incoming Democratic governors immediately following elections.

“The danger of these things is that legislators do the most damage during lame duck sessions,” he said. He is hopeful that the GOP legislators he knows would not do something that would destroy American democracy, he added.

Another veteran of swing state electoral politics — self-described “apostate” GOP consultant Rick Wilson — said he believes Trump could “absolutely” try to pressure legislators in their mutual home state of Florida into stepping in to take the state’s 29 electoral votes from Biden.

“Florida’s Republican apparatus is very, very strong, and very, very organized. It's run by a bunch of people who used to not be Trumpers, but they now are and they're not dumb people — Trump is dumb. They are not dumb,” said Wilson, who is one of the founders of the Lincoln Project anti-Trump super PAC.

“I would not put it past them, and I would not put anything beyond Donald Trump's ambitions to remain in office,” he added.

The only way to foreclose the possibility of such a Trumpian end-run around democracy, Wilson said, is for November’s election to be “a massive, cataclysmic earthquake that completely destroys Donald Trump”.

“It's got to be such an electoral college beatdown that is so severe that people speak of it in harsh tones for 100 years,” he said before adding that Trump’s suggestion of delaying the election is likely to create a backlash in the form of more voter registrations by people opposed to him.

But Wilson is confident that that such a “beatdown” will occur and will preclude any attempt to characterise the result as fraudulent: “We’re negative-30-plus percent GDP, we've got 150,000 dead Americans and probably 200,000 by Election Day, we've got a rampant pandemic that is destroying the health of people in an economic disaster that's destroying their welfare and economic well-being. And he [Trump] is responsible for many of the aspects of those things, so he’s paying a price for being a f**k-up.”