The unthinkable, but theoretically possible path to a 2nd Trump term
For many of us, we all breathed a sigh of relief on 7 Nov at 11:25 AM EST when the AP called Pennsylvania and the US Presidential Election for Joe Biden (Slodysko, Brian 2020). For those of us familiar with the election process we have accepted this familiar map showing Biden past the critical 270 electoral votes as the authoritative representation of the electoral mandate that decides the next President.
That’s how it has worked for years in how America had decided it’s presidents. The formalities of the Electoral vote casting and certifications are not usually a detail that captures much public attention after the races have been called and the losing candidate concedes. What many of us are only just now waking up to realize is that the actual mechanisms for a smooth transfer of power rely to a large extent on the voluntary cooperation of the outgoing President.
What happens if the outgoing President refuses to accept the results?
This is where things get interesting and disturbing. I can’t believe I’m actually describing this scenario because it runs against the very idea of democracy and a popular mandate, but the recent behavior of Donald Trump replacing top Pentago officials as a lame duck (Detsch, FP 2020), Secretary of State Mike Pompeo claiming a ‘smooth transition to a 2nd term for Trump’ (Chappell, Bill NPR 2020) and some Republican legislators seem to suggest that this unthinkable scenario is not yet off the table.
Step 1 : Sow doubt in the election outcome
This is already occuring, and it appears to be working.
Trump and those closest to him in his cabinet, his family and personal lawyer Rudy Julian continue to sow doubt of the election outcomes claiming “fraud” wherever they can reach despite fact verifying censorship from social media companies Twitter and Facebook (Hern, Guardian 2020). Despite numerous public figures inside and outside the US including Republican Senator Mitt Romney and former Republican president George W Bush recognizing Joe Biden’s electoral victory, Senate majority leader Mitch McConnel and other Republican lawmakers have declined to accept the election as conclusive for Biden and repeated the doubt of election integrity.
This appears to be having an effect on Republican voters, whose faith in the election process has plummeted to only 30% (down from >50%) since Nov 3 while Democrats faith has gone the other direction > 90% confidence in the election outcome (Bekiempis, Victoria Guardian 2020).
Step 2 : States send conflicting sets of electors to Congress, one from the State legistlature, and one from the governor’s office
Now to the strange part of the story. In the US, there is no federal popular vote. Instead elections are decided by the Electoral College. Normally how we intuitively think of it is a simple mathematical formula that translates the state elections results and applying a winner-take-all logic to awared all of the electors to the winning candidate, no matter the margin. Two exceptions are Nebraska and Maine, who further divide the state into 2 or 3 districts but the same general logic applies to those districts and this nuance would not change the outcome for this race. For all presidential elections in the 20th century and most all of the others since inception, that’s how it has effectively worked.
The technical reality is that it isn’t ACTUALLY determined by a formula, it’s determined by real people called ‘electors’ (Miao, CNBC 2020). The process has not changed since inception in 18th century when it would have been impossible to conduct a real-time national count in a time of horses and buggies and these electors may have been a practical necessity. There are two possible means for an irregularity between the electoral vote count as determined by formula from the popular vote by state and the actual electoral college vote
- Faithless electors — A faithless elector casts their vote against the outcomes of the vote in their state. This has happened in the past but is rare, insignificant in changing the outcomes and penalized by law in most states (except Pennsylvania..) (Cox, Chelsey USA TODAY 2020).
- State legistlators nominate a different set of electors from the results of the State’s elections office.
This is the unthinkable part. While the supervisor of elections reports to the Governor, the state legislators are responsible for appointing the electors. Normally this process is perfunctory and non-controversial, but there are some signs that we may not be able to take this for granted in 2020. State election officials have from now until 1st Dec (23–25 Nov for many states) to complete and certify their election count. After that, the state legistlature has until 8 Dec to certify the results and nominate the state electors. The electors have one week from 8 Dec until 14 Dec to cast their ballots in their respective states (Miao, CNBC 2020). While it seems absurd to suggest that the legislatures would produce a different set of electors than those from the elections department, it is theoretically possible.
Who would have the advantage if state legislators ignored the election outcomes and instead nominated the electors based on whichever party had majority control?
The answer is : The Republican Party.
Republicans control key swings states that would be decisive in this election. They control state legislatures in all of the key battleground states — AZ, WI, MI, PA, GA and NC
Step 3 : Congress resolves the conflicting sets of Electoral College votes
The next step is that the states send their electoral votes to both Houses of Congress. If for whatever reason there is doubt about the electoral votes (for example Congress also receives a seperate set of electoral votes from the Governor’s office) Congress has the final authority to resolve the dispute.
In case of any dispute, the House decides the Presidency and the Senate decides the Vice President. They would have from 6 Jan until inaguration deadline of 20 Jan to decide the fate of the Presidency.
But the Democrats control the House so what?
No they don’t. In case it comes down to the House arbiting an electoral college dispute, the Houes is reorganized with one representative per state. The representative is determined by which party in that state has the largest number of representatives. Using this logic where Wyoming counts equally as California,
Republicans have a majority in the House and the Senate (Kamarck, Brookings Institute 2020).
Checkmate : The outcomes from Congress are secured using the powers of the military and local law enforcement
Were this to actually play out from now until Jan, it would very likely trigger the public and the media into various forms of dissent, rebuke, protesting, etc.. So in order to enforce this unconventional power grab, it would require the military to step in to suppress civil resistance, censor the media, control the borders, etc.. and exercise it’s intelligence advantage to stay one step ahead of any dissent or counter-resistance effort.
This past Friday, Donald Trump fired his Defense Secretary Mark Espers, who had blocked Trump’s attempt in June this year to invoke the Insurrection Act to use the military to over-ride state Governors to control Black Lives Matter protests. He has replaced senior officials at the Pentagon with loyalists, including (Detsch, FP 2020).
One such official — Anthony Tata was nominated to the “#2 spot in the Pentagon’s policy shop” who, according to sources from Foreign policy :
[..is] a Trump loyalist, conspiracy theorist, and former Fox News contributor who […] had his nomination to the undersecretary [..] withdrawn over conspiratorial and Islamophobic comments
- Detsch, FP 2020
In the words of Cenk Uygur from The Young Turks who reported on these recent developments
Bekiempis, Victoria Guardian 2020 70% of Republicans say election wasn’t ‘free and fair’ despite no evidence of fraud — study
Chappell, Bill NPR 2020 Pompeo Promises ‘A Smooth Transition To A Second Trump Administration’
Cox, Chelsey USA TODAY 2020 Fact check: State legislators pick electors; Supreme Court ruled against ‘faithless electors’
Detsch, FP 2020 More Top Pentagon Officials Out After Trump Sacks Esper
Hern, Guardian 2020 Trump’s vote fraud claims go viral on social media despite curbs
Kamarck, Brookings Institute 2020 What happens if Trump and Biden tie in the Electoral College?
Miao, CNBC 2020 Here’s when the results of the 2020 election will be finalized
Slodysko, Brian 2020 Why AP called Pennsylvania for Biden