Will we accept the results of this presidential election?

If this year’s presidential election turns out to be as close as it’s projected to be, the real question is not who is going to win. It’s rather, will Americans accept the outcome?

The answer, I’m afraid, is that a sizeable percentage of the electorate will not.

It’s easy to imagine a scenario in which Donald Trump and many of his supporters will not accept the outcome. After all, if Trump didn’t accept the legitimacy of the 2020 election, which Joe Biden won with over 51 percent of the popular vote and with an electoral vote majority of 306 to 232, why would he accept the results of an election that will almost certainly be much closer?

But what about the Democrats? If the Democrats are now the party that insists on the legitimacy of institutions, wouldn’t they accept the election results even if they lose?

I think that depends on how the outcome is determined. Consider this scenario:

Right now, the New York Times polls and other reputable surveys indicate that Trump is slightly ahead in the Sunbelt swing states, but that Harris leads by a very small margin in the swing states of the Rust Belt. While several of these margins are well within the polls’ margin of error – which means that exact projections are impossible – we can say for hypothetical purposes that if all of these polls are accurate to the first decimal point, Harris would win this election by 270 electoral votes to 268.

However, one of those electoral votes will have to come from Nebraska’s second congressional district. Nebraska is one of only two states that awards some of its electoral votes by congressional district instead of simply giving all of its electoral votes to the winner. If the state awarded all of its electoral votes as a bloc to the candidate who won a plurality of the state’s vote (as most states do), Republicans would win all of Nebraska’s electoral votes, but since the Omaha-dominated second district tends to be more liberal than the rest of the state, it has often voted Democratic in recent elections. As of last month, polls showed Harris leading Trump in this district by five percentage points.

But what if Nebraska changed its rules to do away with this idiosyncratic system of electoral vote allocation by congressional district and instead decided to give all of its electoral votes to the winner, as 48 other states do? That’s actually what the Republican governor and a majority of Republicans in the legislature favor, but as of this week, the contingent of legislators who support this idea is still one vote short of a filibuster-proof majority.

But some legal analysts have suggested that there’s nothing in Nebraska law to prevent the legislature from changing the rules for electoral vote allocation after Election Day as long as it does this before the state certifies its electoral vote.

So, imagine this: What if Election Day comes and goes, and after several more days of counting mail-in ballots and litigating the results in several swing states, it becomes apparent that Harris really will finish the race with 270 electoral votes unless the Republicans can do something to change the rules in Nebraska. Suppose that after enormous pressure from Republican operatives, the legislature votes in favor of changing the rules for electoral vote allocation, so that all of Nebraska’s electoral votes go to Trump, resulting in a 269-269 electoral vote tie between the candidates. The Democrats, of course, will challenge this move in court, but it’s not too difficult to imagine the current US Supreme Court ruling in favor of the Republicans. That means that, according to the Constitution, the US House of Representatives will have to resolve the electoral vote tie. Given the current partisan composition of the House, it’s widely expected that they would vote to give the election to Trump.

Would the Democrats accept the election result in such a scenario? If Harris wins the popular vote, but Trump finishes ahead because of a series of maneuvers such as I have described – all of which are probably perfectly legal but perhaps ethically dubious – would the Democrats accept the result?

Or would they instead be likely to argue that Trump really didn’t legitimately win the election? Would they make the argument that Trump probably shouldn’t have been on the ballot to begin with, since he violated the Fourteenth Amendment’s prohibition on officeholding for those who have “engaged in insurrection or rebellion”? It’s true, of course, that the Supreme Court rejected this argument earlier this year, but that doesn’t mean that many Democrats don’t believe it’s valid.

Would they also argue that if Trump won only because of voter repression in Georgia or post-election electoral vote reallocations in Nebraska, the election results are not valid? Would they argue that if Harris wins the popular vote, she is the rightful winner of the election, regardless of what the courts and the House of Representatives say?

I don’t think that all Democrats will make this argument, but it’s not too difficult to imagine that some will. And if that’s the case, one can easily envision how this could lead to a constitutional crisis in which Americans on both sides of the controversy will believe that they are the ones upholding democracy and that the other side is corrupting the democratic process and thwarting the will of the voters.

The election may not play out exactly like I have imagined it in this scenario, but with the race as close as the polls indicate it is, it’s not too hard to imagine a scenario – either this one or one very much like it – in which the ultimate outcome of the election will be determined by the courts long after election night. And if that happens, it’s nearly certain that a substantial group of Americans will cry foul and declare the election stolen.

We’ve been through this a few times before in this country. Many Democrats of the late 19^th century believed that the election of 1876 was stolen, and many supporters of Al Gore were similarly outraged at the Supreme Court’s decision in Bush v. Gore and insisted that George W. Bush was “selected, not elected.” But in both cases, tempers eventually cooled somewhat because the victorious presidential candidates extended at least small olive branches to the opposing party and because party leaders on both sides decided to put the nation’s electoral institutions ahead of partisan interests.

I’m not sure that that level of good-faith bipartisan trust exists today. If we no longer have faith that our courts will be able to justly decide a contested election outcome, and if we no longer trust the opposing party to play fair, will we be able to live with an election result that doesn’t go our way – particularly if we think we have good reason to believe that it doesn’t reflect the will of the majority of voters?

If the answer is no, Election Day will not resolve the political conflict we’re experiencing this year; it will instead only mark the beginning of a much more protracted and uncertain post-election chaos. In this country, we have traditionally looked to the polls to settle contentious disputes in a peaceful way. But if we don’t trust our political opponents to honor the democratic process, we will lose the most important safeguard we have against anarchy or political violence.  

In an election that is likely to be this close, the temptations will be enormous for one side or the other to refuse to accept the results – but the need to put country ahead of party and respect the nation’s electoral institutions will be greater than ever.

There may be no easy resolutions to the election challenges that may unfold in the days and weeks after what will likely be one of the closest elections in American history. But I hope that those involved in the challenges will realize at some point that the way they handle these challenges may have much greater repercussions for our democratic system than merely which party wins the White House this time. The future stability of our political order is much too important to jeopardize for the sake of a single election gambit.