GeoLegal Weekly #41 - US Election: Are you Ready to Rumble?

On November 5th, Americans go to the polls. On November 6th, America may never be the same. It is likely the election will be disputed and the chance of political violence is disturbingly high.

Elections usually bring certainty. But disputes and violence related to the 2024 US Presidential Election could drag on for weeks and present huge risk to businesses.

My overall view is that it is likely the election ends up disputed - in the courts, in statehouses and on the streets. This is because Trump will almost certainly reject and litigate a loss. And Democrats view the election existentially so have some probability of doing the same. Between the chance the election drags on - and the potential for political violence on election day or after - business need to get ready now.

Who is going to win?

I really don’t know, but I’m happy to share my thought process. Right now Vice President Kamala Harris is leading in the national polls.

But national polls aren’t that helpful - remember, Hillary Clinton beat Donald Trump at a national level and that was about as consequential as when I was waitlisted at Harvard for undergraduate (cool story! you almost made it! but you…didn’t).

Instead, we need to look at the battleground state polls, and those show that Trump is in the lead. By a lot, if the poll aggregators are to be believed.

That would make it seem like Trump is a heavy favorite but poll aggregations are often wrong. Instead, I favor forecasters who look at election simulations - and no election analysis is complete without looking to Nate Silver, the golden boy of US election forecasting. He shows only a slight edge for Trump

So basically all of the above tells us no one knows or has a real strong conviction. And prediction markets - which are favoring Trump - are not really of help because low trading volumes make it really easy for a rich person (Elon Musk?) or a foreign government to push around the market.

My gut instinct is that if the polls remain this close going into election day, Trump is going to win because:

• There are no positive catalysts from here on out for Harris. There’s no potential news story I can think of that would really shift the narrative in her favor.

• Trump is literally Teflon. While Iran (which prefers Harris) and Russia (which prefers Trump) are trying to put their fingers on the election scales, scenarios like a last-minute crazy deepfake of a candidate doing or saying something completely outrageous might just roll-off of Trump where it could tank Harris.

• Voters can be quite racist in ways they won’t admit to pollsters - a phenomenon known as the Bradley effect for when LA mayor Tom Bradley, an African-American, lost for governor to a white candidate after polls predicted he would get a much greater share of the white vote than he actually did. Trump vs. Kamala is the classic constellation for this type of effect. So if it’s close, Trump wins.

But I’m not longer in the forecasting business - my job is to prepare you for any eventuality. And that’s a lot harder this time around.

Election Challenges

According to the World Justice Project, around 1/3 of Americans “would not accept the election’s results if their preferred candidate does not win.” They are in good company because half of the presidential candidates (Trump) certainly won’t and the other half (Harris) very well may not.

The best predictor of the future is often the past and Donald Trump’s attempts to reclaim the presidency in 2020 give some insight into the playbook for how he might do so. Politico has an excellent piece on how he could do it that I won’t retell here but in summary he will: a) sow distrust in the result b) file court challenges that drag out uncertainty even if they won’t win, and c) pressure friendly state legislators in swing states to come to his Electoral College rescue.

But I think Democrats could well mount their own challenges to a close Trump victory. Gone are the days when a losing candidate bows out and pleads for unity. Democrats view a Harris defeat as an existential risk to their party and to democracy; some even fear Trump will personally prosecute them. As a result, I think Democrats are more likely to fight a close election than ever before. As Vice-President, Harris has a personally pivotal role in certifying the election; I don’t think she’d use it to her advantage but I’m not certain.

One of the areas Democrats might challenge is Elon Musk’s tech-bro tactics in swing states. Technology companies are good at manipulating users and getting them to do things like make referrals or respond to gamified inducements. Musk is doing the same with the election, paying registered voters to refer their registered friends to sign his petitions in swing states and giving away $1 million per day until the election. If he was paying people to register, that would be illegal; but making them have to register to participate is a gray area. I wouldn’t be surprised if Democrats claim he was operating at Trump’s behest and that his tactics swayed the election in illegal ways. Otherwise, Democrats will look to file lawsuits around voter intimidation tactics. I do not think Democrats would pressure state houses.

Political violence

This risk of political violence in the US over the course of the next few weeks is very high. According to Robert A. Pape from the University of Chicago, around 26 million American adults agree that “the use of force is justified to prevent Donald Trump from being president” while 18 million American adults “support the use of force to restore Trump” to the White House. By the way, 30% of those who want to prevent Trump and 50% of those who want to restore Trump own guns.

I certainly hope no bullets are fired on election day or after, but an attack designed to scare voters away on polling day or a riot in angry response to the election outcome is a very real possibility. If Harris wins, I think there is a very high chance of isolated political violence and a significant chance of major episodes of political violence like January 6th but more widespread and deadly in the weeks that follow.

A friend with a child in a Washington DC school told me the school has already sent messages to parents that it was prepared to shift to home schooling in the event of political violence in the city. It’s not the only one. Preparations like that haven’t been necessary since the 1960s.

GeoLegal Implications

There are huge policy outcome differences depending on who wins. But right now, you need to worry about waking up to the headlines that violence has broken out or that the election will be unresolved for an extended period of time.

Prepare for infrastructure outages and office closures: Foreign governments will attempt to sow discord, with the US government briefing that Russia, China and Iran will spread misinformation and possibly contribute to physical violence and cyber attacks on news sources to perpetuate confusion. This could well hit critical infrastructure that businesses rely on. Prepare for disruption to systems and possibly US travel in the days after the election. And also prepare for potential civil unrest that might lead you to close offices and shift to remote working.

Prepare to talk or remain silent: If there is physical violence on election day or a disputed election, the position of your company will become an issue to your staff, your customers, and possibly to the future president. Do you have communications specialists who can stay up to date on events and advise you on the positions you should take? Remember that you’ll feel compelled to condemn any violence with general statements but also remember that, as with the January 6th riots, there is no common ground on the cause of violence and there are a disturbing number of Americans who support it. My view is that very few companies will benefit from making themselves part of the story in the days following the election; you can read my broader philosophy on when to speak and when to stay silent here.

Get your employees ready: While you may have the ability to plan your communications, your employees will already be on social media potentially telling the whole world their views. Emotions will be high after election day: Do you have clear views on the boundaries for civil political discussion that you expect your employees to observe? If an employee advocated for rioting or violence on their personal social media account do you know what you would do - and have you communicated that? If employees bring their politics into the workplace, do you have common-sense policies to guide it? For instance, Sam Schwartz-Fenwick of Seyfarth is quoted in a write up of a large HR association suggesting that employees might want to seek consent before speaking about politics to another employee; even reminders of such techniques can be helpful to prepare.

Prepare to hold back key decisions: Often a raft of business investment follows an election because companies take decisions with a clear mind to what is ahead. However, an election outcome that drags on could lead to a cycle of deferred investment and decision-making that may be a drag on growth. Prepare for your customers to be in a defensive position if the election is contested and also for your company to have enough flexibility such that you can defer your own decisions as needed. Stock market volatility will also complicate the situation for publicly traded companies.

Happy to pick up a dialogue on these topics as you plan.

-SW