Trump’s tweets are hollow, but Frank Underwood-style voter suppression is a real Election Day threat

Jerry Goldfeder is an election lawyer, and special counsel at Stroock LLP in New York. He teaches Election Law and the Presidency at the Fordham Law School and is the author of the treatise Goldfeder’s Modern Election Law, now in its Fifth Edition. Photo courtesy of Goldfeder

By Jerry Goldfeder

As Democrats are about to nominate Joe Biden, President Trump has been trying to divert our attention. 

Minutes after the worst economic news on record was recently announced, Trump threatened to postpone the presidential election. By now most Americans know he has no authority to do that. Only Congress can, and even during World Wars, our own Civil War or the Great Depression, our presidential elections have been held as scheduled. His threat is hollow — a divided Congress will not postpone the election. Even Mitch McConnell shot it down. 

His other favorite diversion is that he may not leave office on January 20 if he loses. That is not going to happen either. Neither Congress, the secret service nor the military would permit it — not to mention the American people, who would converge on Washington and in every major city demanding lawful succession. 

As unnerving as these possibilities are, the real danger to our constitutional republic is if Trump prevents an orderly and fair election a la President Frank Underwood (played by Kevin Spacey) in “House of Cards.” 

Remember Season 5? 

Thinking he was going to lose re-election, a desperate President Underwood conjured up fake terrorist threats and engineered the closing of polls in key states on Election Day, ultimately leading to an unresolved contest that was thrown into the House of Representatives where he believed he had a better chance to win. 

The show comes to mind as President Trump sends federal agents in combat gear into American cities on the pretext of restoring law and order. These paramilitary troops are already in a handful of cities, and Trump seems intent on expanding their presence. 

Such armed incursions are worrisome for many reasons, not the least of which is what they portend for the election. 

He could send in additional troops to Democratic-leaning communities, as he has promised. It is one thing for Republicans to boast that they are spending $20 million dollars to recruit 50,000 “poll watchers” to prevent “suspicious voting.” 

It is quite another for unidentified federal agents in battle-ready uniforms to “maintain order” in liberal cities or African American neighborhoods. Aside from residents’ outrage about such an abuse of presidential power, the presence of these troops might very well depress the vote.  

Trump could also send them into swing states controlled by Republicans where the pandemic is raging. The fabricated rationale would be the same, to keep the peace, but a subtext would be that it is too dangerous to open polling sites. 

Rather than rely on vote-by-mail, these states could try to change the rules of the presidential election. Currently – and for about 150 years – each state’s voters choose presidential electors on Election Day. 

Under the gaze of Trump’s paramilitary forces, however, legislatures may decide to select electors directly, bypassing the voters altogether (The US Constitution says that state legislatures decide how electors are chosen.) 

Imagine, then, Florida and Georgia doing this. Forty-five electoral college votes would be off the table — in the Trump column without one voter in those states casting a ballot. Voting rights advocates would of course try to stop this election hijacking, but can the Supreme Court be relied upon to strike down such wholesale disenfranchisement? 

Before 2016, a president’s use of federal agents to disrupt a presidential election may have seemed like a hard-to-believe Netflix drama. After all, we have held fifty eight elections and no fewer than ten incumbents lost, and graciously, if not so happily, stepped aside. Unfortunately, Trump is more familiar with TV than history. 

Trump’s tweets about postponing the election or not accepting the results are head fakes. On the other hand, his use of troops in American cities, and how they might be used on Election Day, appears all too real. 

Americans need to be watchful.

Jerry Goldfeder is an election lawyer, and special counsel at Stroock LLP in New York. He teaches Election Law and the Presidency at the Fordham Law School and is the author of the treatise Goldfeder’s Modern Election Law, now in its Fifth Edition. @jerrygoldfeder