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by Causes | 7.20.20

Could Trump lose the election and remain president?

It’s not completely speculative fiction: the president has discussed serving more than two terms on multiple occasions. He’s also continued to claim, with no evidence, that he “won the popular vote if you deduct the millions of people who voted illegally.”

And, on July 19, 2020, President Trump refused to say on \"Fox News Sunday\" whether he would accept the results of November's election if he loses to Joe Biden, telling host Chris Wallace:

\"I have to see. I'm not just going to say yes. I'm not going to say no.\"

During the impeachment investigation, Trump tweeted that there would be a “Civil War-like fracture” if he were removed from office. Michael Cohen, Trump's former lawyer, told Congress:

“Given my experience working for Mr. Trump, I fear that if he loses in 2020, that there will never be a peaceful transition of power.”

America has always prided itself on a peaceful transition of power, so:

What happens if Trump is unwilling to leave the White House?
What happens if Trump contests the results of the 2020 elections?

Scenario

It’s the night of November 3, 2020. The results come in: Trump has lost both the electoral college and the popular vote.

Trump appears on TV (and/or Twitter) and says there’s bad news: The 2020 election has been compromised: “Could be Russia, could be China, could be Iran, who knows?” But Trump has “lots of people telling” him that the elections were hacked. And “everyone knows” that millions of unauthorized immigrants voted (“which is why I pushed for the voter commission! Blocked by Dems!”). Until the government can verify the election results, Trump says, he’s issuing an executive order blocking the election results.

Another scenario

Prior to Election Day, Trump could propose postponing the election until the U.S. can ensure only eligible American citizens can vote.

Congress and the Electoral College

The Twelfth Amendment of the Constitution gives Congress final say over who becomes president. Which means: Congress has to confirm the results of the electoral college.
On January 6th, Members of the House and Senate (including those newly-seated) meet in the House chamber to conduct the official tally of electoral votes. The vice president, as President of the Senate, presides over the count and announces the results of the vote.
Trump could order Mike Pence not to participate in the electoral tally until the elections are confirmed clean or until there’s a re-do.
However, Trump could bypass Congress and go straight to court, disputing the results and setting up a legal battle. Not likely? Well, it’s happened before…
But before we get to Bush v. Gore…

Not-Supreme Courts

Let’s look at Pennsylvania, which has clear red and blue districts.
As Washington Monthly explained, “The Trump campaign might sue Democratic-leaning counties for alleged 'irregularities' and ask that judges toss out their results.\"
Mark Tushnet, a constitutional law professor at Harvard University, told the Monthly that he could “imagine the litigation in Pennsylvania taking the form of saying voting booths in Philadelphia were held open an excessively long time, an unlawfully long time, or the vote counters in some Democratic-leaning county unlawfully refused to count late-filed absentee ballots.”
Victory here would mean that the (polarized) courts agree with the Trump administration and throw out the ballots of the contested districts, and “when those are thrown out, Trump gets the state’s electoral votes.”
Let's say states sue upwards, and it reaches SCOTUS...

Bush v. Gore

\nBush v. Gore was only about Florida and the fight took one month. Imagine if Trump sues over the election results of multiple states.
Remember, the Bush V. Gore decision was about which electors the Sunshine State would send to the electoral college: Democrats (giving the election to Gore) or Republican (giving the election to Bush).
Ultimately, the conservative-majority Supreme Court stepped in to resolve the question, shutting down the recount and giving the 2000 election to George W. Bush.
“All candidates have a right to contest results in federal court,” Constitutional law expert Jonathan Turley explained to Politico. “It’s not up to the candidate to decide if an election is valid. It’s not based on their satisfaction or consent. They have every right to seek judicial review.”
The current Supreme Court has been apt to respect executive power—regardless of how they might decide an electoral victory. They could also decide that the president has the legal authority to postpone elections (or the VP confirming the results) via executive order.

State rights

The Constitution gives state legislators free rein in deciding how to select electors. Nearly all states legally require electors to vote in concordance with the people.
Now recall the GOP governments in North Carolina, Michigan, and Wisconsin who, after losing the 2018 midterms, attempted to limit the power of the incoming Democratic governors.
Similarly, Trump allies in GOP-controlled states could pass laws giving themselves direct power to appoint the state’s electors.
The Washington Monthly considered this scenario, using Florida as an example:

“Governor Ron DeSantis, an outspoken Trump ally, could sign [this bill], claiming that the fraud allegations and ‘controversy over the tallies make the popular vote untrustworthy, and that he’s merely implementing the voters’ ‘real’ will.”

Don’t write off this possibly as fan fiction: in 2000, the GOP-controlled Florida legislature called a special session to appoint its own slate of delegates to the electoral college.

Executive branch & Defense Department

Ok, so, let's say none of the above legal challenges occur. But Cohen's prediction comes to pass and Trump refuses to leave the White House.

Trump alone could not govern. He would need the executive branch (and military) to continue to follow him and obey his orders. As of noon on January 20, 2021, the military would no longer owe its loyalty to Donald Trump.
“I can’t imagine the military accepting an effort to turn them into a partisan arm of the executive,” said Robert Mickey, a political scientist at the University of Michigan.
Were Trump to stay beyond Inauguration Day 2021, courts would also begin to weigh in with whether the president’s orders were lawful.
Also worth noting: The White House is symbolic. There is no law stating the president must govern from 1600 Pennsylvania Ave.

What could be done now?

Senators and representatives could make a joint pledge not to delay or alter the counting of the votes, regardless of any candidate’s objections.
Current members of Congress could also “pledge to hold public hearings with intelligence community leaders should those officials or any candidate suggest that vote counts were influenced by foreign election interference or for any other reason,” wrote Joshua Geltzer, executive director and visiting professor of law at Georgetown Law Center's Institute for Constitutional Advocacy and Protection

“That unvarnished testimony by intelligence professionals could debunk any claims by Trump (or any other candidate) that the final vote count shouldn't be honored.”

What do you think?

Are you concerned about Trump refusing to leave office? What about challenging the results of the election? Should Congress make efforts to ensure that no president – in 2020 or thereafter – can interfere with the results of a general election? Take action and tell your reps, then share your thoughts below.

—Josh Herman

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