The looming legitimacy crisis of the 2018 midterms

Between now and November 6, one question is sure to dominate American political life: Which party will win the 2018 midterm elections?

But there’s another, more difficult question we should also be asking about the midterms: Will we collectively accept the results as legitimate? And if not, what happens then?

There’s a non-zero chance we could have an electoral legitimacy crisis on our hands. And we should start preparing for it now. It’s getting late for a cybersecurity solution, and even that may not be enough. We’re going to need a political solution.

How worried should we be?

Consider the following three propositions:

1. There’s a decent chance that either or both chambers of Congress could come down to a few close elections.
2. Electoral confidence in the United States has been declining since 2000, in large part because politicians, especially Republicans, have been undermining it. Electoral confidence is particularly low in closely contested states.
3. We know the Russians are planning to sow chaos in the 2018 elections, and they’ve already infiltrated the crazy patchwork of election administration in America. In a close election, a few fishy developments could undermine the legitimacy of the results and set in place a potential crisis — especially if political leaders on the losing side of the election encourage it.

There’s a good chance of a close election in 2018

At this point, Democrats are a slight favorite to win a majority in the House, while the Senate is closer to a toss-up. But it’s quite within the range of possibility that control of either or both chambers rests on a few very narrow outcomes.

And when things are close, electoral confidence falls. Look at the scatter plot below, from MIT’s Election Data and Science Lab.

The y-axis shows the share of voters in the state who say they are “very confident” that their own state’s votes were counted as intended. The x-axis shows the margin of presidential victory. Al the swing states are on the left. There’s a general pattern here — the closer the state, the less confident voters in that state are that their votes are counted. In six states (Pennsylvania, Michigan, Florida, Arizona, New Mexico, and North Carolina), the share of “very confident” respondents was less than 40 percent.

What’s going on here? “In a close contest,” MIT’s Election Data and Science Lab data explains, “it’s common for both sides to accuse the other of dirty tricks.”

In our winner-take-all two-party system, total political power can hinge on a razor-thin margin. Add in highly polarized parties and you raise the stakes to a point where it would feel like political malpractice for a party not to contest every inch of political territory, given that even one tiny inch could determine the balance of power.

Electoral confidence in the US has been declining since 2000

MIT political science professor Charles Stewart III, who leads the MIT lab, has written a bit on electoral confidence. A 2015 paper he wrote with political scientist Michael W. Sances collected polling on electoral confidence from 2000 and 2012 and plotted the results. Here’s their graph:

Between 2000 and 2012, the overall share of Americans confident that the country’s vote was being counted fairly plunged from about 50 percent to 20 percent. This was mostly driven by Republicans, whose confidence plunged dramatically. Apparently, a decade of conservative propaganda about voter fraud had an impact.

Of course, Republicans also lost two presidential elections in that period (2008 and 2012), and as a general rule, partisans tend to be more confident in the vote counting when they win than when they lose.

Republican vote confidence did jump after the 2016 election, as political scientist Jack Santucci showed in a Democracy Fund blog post.

This raises the question of what would have happened if Trump had lost in 2016 and refused to concede the election, as he threatened. Perhaps we’ll find out in 2020. Still, the low overall public confidence in our electoral vote counting should be worrying. It’s a necessary but not sufficient precondition for an electoral legitimacy crisis.

Enter the Russians

Roughly three in four Americans are anxious about foreign interference in our elections right now, and leading intelligence experts think they’re right to be. We know that Russians tried to hack the electoral systems of 21 states in 2016, and that some of those states were breached.

I’m not an expert in elections security, and so I leave it to others to tell me how vulnerable our systems really are. But the perception that our political systems are hackable is up since 2016, especially among Democrats. Republicans have long had concerns about “voter fraud,” and Democrats now have deep concerns about “hacking.” And one thing is almost certain: The Russian troll bots will be doing their darnedest to stoke these concerns as we get closer to November.

It would only take a few choice security breaches or even credible allegations of such breaches to upset confidence in the entire election if things are close. Like a single terrorist attack putting an entire nation on edge, If some fishy activity shows up in a few close elections, it could easily lead to a perception that wider results shouldn’t be trusted. This could trigger contested and bitter recount and certification fights.

If control of Congress hangs in the balance, this could get very ugly. Given the high stakes (if Democrats control the House, oversight of the Trump administration will change dramatically, and the chances of impeachment increase dramatically), political actors on the losing side will have a powerful motivation — and likely lots of external pressure — to challenge any suspicious results. And the public will be primed to be suspicious already.

How to avoid a destabilizing legitimacy crisis

The obvious suggestion would be to devote more resources to electoral security, to make it harder for malicious foreign actors to hack into our electoral systems. For example, Congress could pass the bipartisan Secure Elections Act. But this seems unlikely at this point, especially since the Trump administration is lying down and putting a big “kick me” sign on its face when it comes to foreign electoral intervention. And at this point, it might be too late anyway,

Perhaps a more feasible (though also highly unrealistic) response would be for party leaders on both sides to sit down and anticipate the joint possibility that 1) the 2018 midterms could wind up being really, really close; and 2) that there might indeed be enough suspicious activity that the balance of power would rest on that suspicious activity. Upon anticipating that possibility, they could negotiate a bipartisan plan to handle it.

Here’s one idea: agree on an independent body of experts to intervene and certify results on the off chance this does happen, rather than leaving it to the potentially ad hoc judgments of secretaries of states and court challenges — a process that is almost certain to exacerbate, rather than mitigate, potential disputes.

Here’s another idea: Partisan leaders in Congress from both parties should preemptively agree on a joint power-sharing agreement that would be triggered by a close and suspicious election, so that a narrow and suspicious margin of power doesn’t have the possibility of creating a fundamental crisis of legitimacy.

I know these suggestions, especially the second, seem unlikely. And yes, the scenario I’m worrying about — close elections, coupled with credible allegations of meddling significant enough to hold the balance of power — is also not super likely.

But the chances are non-zero, and the results could be devastating. And while it’s easy to blame the Russians, the reality is that our hyperpartisan, winner-take-all, closely contested two-party system has made us vulnerable to a threat like this. This is now a political problem. And we should develop a political solution.

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