ON Wednesday, President Trump refused to say whether he would commit to a peaceful transition of power if he lost in the upcoming election, telling reporters: “We’re going to have to see what happens.”
For many months, the president has carefully planted the seed that he might not leave the office of the presidency willingly if he loses.
Whether it’s tweeting that the election should be delayed as it “will be the most inaccurate and fraudulent election in history” or that there will be widespread voter fraud because of the massive increase in mail ballots due to the coronavirus, Trump seems intent on undermining the electoral process.
This raises a rather unpleasant and unprecedented question: What happens if Trump will not go?
The answer is bleak and will most likely lead to violence.
Despite what some may suggest, the president actually has a lot of power at his discretion to contest the election, and some of the scenarios that could bring us to the edge of a crisis are actually very plausible.
Here is just one example: It’s the wee hours of the morning on Wednesday November 4, and hundreds of thousands of votes in key battleground states still have to be counted due to the increased use of mail and absentee voting because of the pandemic.
As a result, media outlets have largely avoided calling the race, but based on the votes that have been counted, Trump leads in enough states to reach at least 270 electoral votes, which would be enough to win the election if his election-night lead holds.
Trump claims victory, but because Democrats were much more likely to vote by mail than Republicans, Joe Biden eventually pulls ahead because of the Democratic lean of the remaining votes.
That’s just one of the many scenarios the Transition Integrity Project, a bipartisan collection of more than 100 experts, looked at over the summer while researching how a possible election crisis could unfold.
Rosa Brooks, a professor at Georgetown University Law School who co-founded the Transition Integrity Project, said that she was not interested in predicting the likelihood of any one scenario they looked at, but more so in understanding the range of possibilities.
Ultimately, they do not know to what extent this year’s election result will be contested.
Would Trump deploy federal agents from the Department of Justice to secure vote counting sites or would he just take to Twitter to bemoan the results? Brooks suggested they do think the election will be contested at least on some level.
One big takeaway from the Transition Integrity Project’s simulations was just how much power Trump has at his disposal should he choose to contest the election.
Brooks says, “you have just a tremendous differential between the president of the United States of America, who has just awesome coercive powers at his disposal, and a challenger who really has no power whatsoever in our system, Joe Biden can call a press conference; Donald Trump could call on the 82nd Airborne.”
This would obviously be a doomsday scenario, but given the president’s comments this week, it is not beyond the realms of possibility. A cornerstone of American elections has been the peaceful transition of power, but as research from the Transition Integrity Project suggests, there are multiple ways to contest an election.
You do not have look too far back in time to know that America has survived a disputed election before- the 2000 presidential race.
Many experts are worried about 2020 however, given Trump’s inflammatory rhetoric around the election and his own track record of openly flouting democratic norms, that the country would not be able to handle another full-throttle election dispute.
In the 2000 presidential election, Florida’s GOP-controlled state legislature was on the verge of appointing a new slate of electors to vote for George W. Bush had the court-ordered manual recount imposed by the Florida Supreme Court continued.
Of course, it ultimately didn’t come to that because the Supreme Court stepped in and halted Florida’s recount, famously deciding in a 5-4 decision that the Florid Supreme Court had overstepped its purview and that a recount could not be held in time to meet the federal deadline for the selection of presidential electors.
A similar situation could happen this time around in the state of Pennsylvania if the president and his enablers contest the Electoral College, with terrifying results.
Imagine this scenario: Trump leads in the tipping-point state of Pennsylvania on election night, but because of Democratic gains in mail-in ballots counted in the following days, Biden pulls ahead by a few thousand votes. What happens next quickly breaks down into a partisan dispute.
Democratic Gov. Tom Wolf signs Pennsylvania’s certificate of ascertainment, confirming Biden’s victory by listing the Democratic electors as the state’s official slate for the Electoral College, while the Republican-controlled Pennsylvania legislature appoints a different set of electors at Trump’s command as he has claimed there was widespread election fraud.
This, were it to happen, would likely be met immediately with legal challenges in state and federal court, perhaps followed by another intervention by the US Supreme Court at which time may be held by the conservative wing by 6 to 3.
The significance is that even if a court ruled against the validity of one set of electors, Congress still has the power to consider both sets of electors as long as they have in hand the certificate naming them- even the Supreme Court could do nothing about this.
The Electoral Count Act 1887, which defines the electoral vote counting process, was designed to help Congress decide how to handle such a situation. It is especially ambiguous on what would happen if the Senate and House disagree on which set of electors should count.
This could happen if the GOP retains control of the Senate and Democrats keep the House as this would not play out until January 6th once the new congress is seated- dangerously close to inauguration day of January 20th.
In this situation, Vice President Mike Pence, as president of the Senate, would oversee the count in Congress and may follow one interpretation of the law, especially if it is electorally convenient. He could argue that neither set of electors should count because they conflict.
This would remove Pennsylvania’s votes from the total number of electors and gives Trump a majority based on the remaining 518 electoral votes. Democrats, would counter this by claiming the certificate bearing the governor’s seal, a Democrat who supports Biden, is given preference by the law.
If this occurred, the country would find itself in the middle of a full-blown constitutional crisis. The Supreme Court could become involved if say Democrats wish to seek an injunction to stop Pence from not counting Pennsylvania’s votes.
Although, it is possible that the court would refuse to hear the case since citing the precedent of Bush v. Gore where they argued that neither the constitution not the Electoral Count Act provides a role for the judiciary in this process.
Under the 20th Amendment to the constitution, someone must take office on January 20 as president.
It’s possible that House Speaker Nancy Pelosi could claim that under the Presidential Succession Act, she is next in line to become president and that she would be willing to resign her House seat to serve as president until Biden is ruled the election winner.
If Republicans claimed Trump had won re-election, they very well might object to Pelosi being sworn in. Given a crisis on this scale, it’s hard to know for sure what exactly might happen, but it’s very likely things would spiral out of control, and the resulting uncertainty could spark unrest and protests that could very well lead to violence not seen in the US since the civil war.
Even if the worst scenarios do not come to fruition, the fact is the US lacks a neutral electoral arbiter and that is a ticking time bomb. There is no UK-style returning officer to certify results who is politically neutral.
For now, though in the absence of such measures, the peaceful transfer of power hinges on the expectation that that is how American elections work, and it requires “losers’ consent”.
One thing is for certain though, Trump’s term constitutionally ends on January 20 at noon and it will be impossible for him to stay as “acting president” until any constitutional crises are resolved.
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