What if neither Mitt Romney nor President Obama is the clear winner on Nov. 6? What if we wake up on Wednesday morning, and find out that in one, three, five, or even more states, the outcome is in doubt, and America is heading for court battles that will make Florida in 2000 look like a tussle at the local PTA?
The possibility of that happening has never been greater. More than 10 states are putting new election laws into effect in this election dealing with voter identification, early voting, or absentee ballots. Other states are altering their election laws in less obvious ways that affect administration. Each of these changes increases the possibility that there will be unintentional errors, confusion, or systemic failure.
Remember the butterfly ballot in Palm Beach? If that one innocent snafu had not been made by a local Democratic election official, Al Gore would have been easily elected.
But there’s more. The parties and outside groups are lawyering up to respond to these changes, and to the fears that the ballots will be tainted.
On the Democratic side, many believe that millions of voters could be disenfranchised by voter identification laws. Or, voter watch groups will challenge legitimate voters in heavily Democratic precincts, tying up the voting process. If challenges push lines to an hour or more to vote, some voters will be unable or unwilling to wait for their chance to cast a ballot for President Obama.
Democrats also worry about widespread registration fraud on the part of Republicans. In battleground Virginia, it seems that a Republican contractor threw away Democratic registration cards. This follows reports that a firm linked to registration fraud worked for the Romney campaign and the Republican Party of North Carolina, another swing state.
On the other side, Republicans seem deeply afraid of voter fraud, from illegal immigrants or from multiple voting by the same persons.
Patrick Moran, son of Virginia Democratic Rep. Jim Moran, resigned from his father’s campaign last week after being secretly recorded by a conservative activist. The congressman’s son seemed to advise the activist, who was pretending to be a supporter, that utility bills could be used to commit voter fraud.
These largely phantom fears about voter fraud will motivate Republicans to police the polls with unprecedented fervor. As was revealed to many voters in 2000, America, unlike most advanced democracies, does not have, in most states, a nonpartisan election administration system. Instead, elected or appointed partisans are typically in charge of elections. This is such a bad idea, that when we set up quasi-democracies in Afghanistan and Iraq, we didn’t copy our own system.
And unlike almost all other advanced democracies, America has a creaky, state and locally run election system that is woefully underfunded and can be inaccurate. For some widely used voting methods, the fail rate, in which a voter’s intent is unable to be ascertained, is well above 2 percent of ballots cast, which would be an outrage in western Europe. The fail rate is even higher for absentee ballots, as is the risk of fraud.
In an election where both candidates are polling at a statistical tie, we are poised for a perfect storm of election controversy. And if it emerges, it will be very difficult to resolve easily.
The hatred level on both sides seems to have risen to new heights in contemporary politics. Moderates are an endangered species in Congress and both parties seem convinced that the other is not just wrong, but evil. The “Big Sort” continues to separate Americans into red and blue churches, workplaces, counties, and social networks.
The Supreme Court itself has lost esteem in the eyes of the public. In 2000, Democrats, led by Vice President Gore, accepted the court’s narrow ruling for Bush. Would partisans, particularly those on the left, be willing to see the court put a conservative in office in a contested election – twice in 12 years?
And asking the high court to resolve one state’s deadlocked disaster of an election recount is a piece of cake compared to resolving multiple states in dispute, each raising different issues, under different state laws, with different governing precedents and procedures.
Ultimately, I’m sure the nation would survive a two- or three- or four-month election court battle. But the costs would be extremely high.
How would markets react to another protracted period of struggle over election outcomes? How about our allies and potential enemies around the globe?
And a lot has to happen immediately after the election that involves compromise between the lame duck Congress and Mr. Obama – not least of which is avoiding the “fiscal cliff” come January. Could that happen while Republicans and Democrats are fighting in the county courthouses of Ohio and Florida and Virginia for every dimpled chad and questionable voter registration?
Great nations often decline most rapidly via internal power struggles. Rome had no greater enemy than strife among Romans for the right to rule. The stakes in this election could not be higher, in ways that most people don’t realize.
Bigger than any single issue, bigger than the entire agendas of both candidates, looms the question: Can America still peacefully exchange power without bitter controversy and weeks of uncertainty?
So, before you hope that your candidate wins, hope that one of them emerges with a clear victory. Or if there is no clear winner, that the candidates and the parties are governed by reason and the greater interest of the country, instead of by passion, recrimination, and self-interest.
No matter which side you support, a President Romney or a President Obama would be much better for America than a President Nobody for months on end.
Jeremy D. Mayer is an associate professor in the School of Public Policy at George Mason University where he also directs the masters program in public policy. This op-ed is adapted from a longer commentary in The American Interest.