All Your Most Paranoid Transfer of Power Questions, Answered

Can Donald Trump continue as president even if he loses the election in November? Trump’s refusal to say that he would accept the results of the election during an interview with Chris Wallace of Fox News comes as the president continues to fearmonger about the use of vote by mail in the 2020 election and raise questions about its legitimacy.

This rhetoric is not new from Trump. He falsely claimed in 2016 that Ted Cruz “stole” the Iowa caucuses and refused to commit in advance to accepting the result of the general election against Hillary Clinton. Now that he’s in the White House, can Trump thwart the will of the American electorate if he loses in November? Let’s look at what’s actually possible — and what isn’t.

Constitutional procedures don’t change if it’s a close election, but there are more opportunities to weaponize them for political advantage.

No. In this case, only the most outlandish scenarios would be available to a president seeking to stay in office. Peter Feaver, a professor at Duke University who served on George W. Bush’s National Security Council, said Trump “would have to persuade many, many people who are currently in government, most of whom are civil servants, they have to go along” with any effort. Further, the constitutional process of transfer of power does not require any “pomp and circumstance”; if Trump loses, he is no longer president as of noon on January 20, 2021, regardless of where he remains physically. Even if he bunkers down in the White House and tweets orders at government officials, he will lack any legal power.

The constitutional procedures don’t change if it’s a close election, but there are more opportunities to weaponize them for political advantage. Even though Election Day is November 3, the presidential election is not finalized until January 6, 2021. In between, there is a two-month process with a number of choke points in a normal election year, to say nothing of one where the coronavirus pandemic sparks the unprecedented use of vote by mail.

Nope. Remember, voters don’t directly vote for the president. They vote for electors in the Electoral College. The electors convene to cast their ballots on December 14, 2020, in their respective state capitals. The ballots are then counted during a joint session of Congress on January 6, 2021, which is presided over by the vice president. Only then do we officially have a president-elect. In between, a lot of things can go wrong, ranging from fundamental election administration issues to a parade of constitutional horribles.

The big one is absentee ballots and the issues with counting them. Throughout 2020, elections have required extended periods to count absentee ballots and produce final results. Because of this, there is already a broad expectation on both sides that there may not be a clear winner of the presidential election on election night or even in the days after that.

The issue here is not just the lag in counting votes, but also that there is a partisan bias in the modality people use to vote. In recent elections, late-arriving ballots have trended toward Democrats. In 2018, mailed-in votes not counted until after Election Day tipped the balance and delivered victories in a number of races in California and in the Arizona Senate race. This Democratic-leaning trend is likely to be further amplified by Trump’s rhetoric against absentee ballots, which has discouraged Republican primary voters from requesting them.

This creates a potential scenario where, on election night, Trump is ahead in states that have the 270 or more electoral votes needed to claim victory, while Biden wins in the final tally days or weeks later, once all the votes are counted.

It all depends. The three closest states in the 2016 election—Pennsylvania, Wisconsin, and Michigan—all have Democratic governors but Republican legislatures. It’s conceivable in a close race that the Democratic governor certifies one result and one set of electors, but the Republican legislature certifies an entirely different result and set of electors. That’s where all these scenarios can start to go haywire.

However, they require one other precondition: a divided Congress in 2021.

Any conflict over the 2020 election results, including competing returns, would be decided by the next Congress, the one elected in November and seated on January 3, 2021. (Yes, the new Congress is sworn in almost three weeks before the president and three days before the presidential election is certified by Congress.) If Capitol Hill continues to be divided, with Democrats controlling the House and Republicans controlling the Senate, these scenarios come into play. It is unlikely to be an issue, however, if Democrats control both chambers.

There is precedent for this. In 1876, three different Southern states sent two sets of returns and two sets of electors to Congress. The result sparked a national crisis, and Congress created a special electoral commission to resolve the election, which was eventually awarded to Republican Rutherford B. Hayes. Democrats then controlled the House, but Republicans controlled the Senate.

Not really. Although Congress passed the Electoral Count Act of 1887 to try to clarify the situation in the future, it is “gibberish,” in the words of Lawrence Douglas, a professor at Amherst College who has written a book about potential nightmare scenarios for the 2020 election. There are broad questions about whether it should even be considered a law, or whether it is merely a rule of congressional procedure that can be overturned.

The Electoral Count Act does provide that in the case of conflicting returns, the set of election returns “certified by the executive of the State, under the seal thereof, shall be counted.” That means the governors. Because of the ambiguous legal standing of the law, however, a divided Congress could still raise issues about whether this resolves the dispute, and Republicans in the Senate could still try to force a stalemate.

This creates a whole new set of issues. If there is a stalemate over a conflicting set of returns from a state, its electoral votes could get thrown out. But there’s no clear method of determining what happens next. Currently, to win the Electoral College, a candidate has to win a majority of the electoral votes: 270 out of 538 available. But there is no literature or precedent for what happens if electoral votes get thrown out. Do candidates still need to win 270 — or merely a simple majority of the electoral votes cast? Electoral votes have been rejected only once, in the election of 1872, when Ulysses Grant cruised to victory against Horace Greeley, a newspaper publisher who died shortly after the election. Grant won by such an overwhelming margin that this issue was not addressed.

The short answer is “human sacrifice, dogs, and cats living together… mass hysteria.” The long answer is a political fight that will be entirely results-oriented. Under the 12th Amendment, if no candidate wins a majority of the electoral votes, the election goes to the House of Representatives (the Veep Season 5 scenario), where each state delegation then casts a single vote. California gets one vote, Wyoming gets one vote, and the presidential candidate who gets 26 states’ votes wins. Currently, Republicans control 26 state delegations in the House, Democrats control 23, and one is split. Even though the House has an elected Democratic majority, Republicans continue to narrowly control the majority of state delegations, just as they hold the majority of Senate seats.

This could lead to a scenario where Republicans try to force the election to the House, arguing that Biden has not received 270 votes, and attempt a last-ditch effort to elect Trump through their majority at the state delegation level.

Probably not. It requires a very specific set of circumstances where Trump loses, challenges the validity of the election, and then still has enough allies in state legislatures and Washington, D.C., to be able to formally overturn the Electoral College results—to say nothing of the popular vote—under color of law. That said, the convoluted and arcane nature of the American electoral system still presents a number of choke points that create openings for a sore and resourceful loser to attempt to force a different result.

Leave a Reply

Your email address will not be published. Required fields are marked *