The party conventions are over, Labor Day has arrived, and the presidential race remains pretty much as it has been for months. Joe Biden continues to hold a six to eight point lead nationally, and a similar range of leads in most of the key battleground states. Donald Trump surely hoped that Republican National Convention would spark a narrowing of the race. If the campaign’s objective was to soften his image in order to boost his support among suburban women and independents, any material impact has been short-lived.
Donald Trump is an open book, and you don’t have to read excerpts of Michael Cohen’s new book to know that Trump will do whatever it takes to remain in the White House on January 21, 2021. Continuing to incite violence in the street, pitting left against right, will no doubt remain central to his law and order campaign. Rolling out a vaccine — however preliminary the results of clinical trials might be — to an increasingly skeptical public is similarly ready to go; though that gambit may be foiled by pharmaceutical companies wary of becoming pawns to his ambition. Cohen suggested this week that he could easily imagine the President starting a war to stay in office, and current US movements in the South China Sea could be a precursor to Tonkin Gulf-type incident, mirroring LBJ’s 1964 election year ploy.
Whatever other surprises lie in store, Donald Trump has made clear that he will pronounce anything short of an outright victory in November — a landslide even — the result of massive voter fraud. As he reiterated to the delegates gathered at the RNC convention last month — right after he suggested that they should be chanting ‘twelve more years’ rather than ‘four more year’ — he has no intention of conceding defeat, however the vote might turn out. “The only way they can take this election away from us is if this is a rigged election,” he assured them, as delegates shouted their approval.
Whatever the outcome of the race, we will never hear Donald Trump deliver a gracious concession speech, where he thanks his supporters for all their hard work and commits to working with the incoming administration. After watching him trash every conceivable norm of presidential conduct, and undermine every institution that offered the slightest resistance, there is no reason to believe that Trump will treat an election defeat and the peaceful transfer of power — the singular, defining attribute of liberal democracy, and one that Americans take for granted — any differently.
The core underpinning of our democracy is faith, in all manner of institutions. Those institutions have no inherent durability without the faith of the citizenry and the support of our leaders. For several hundred years, electoral democracy in particular has relied on two things. First, it relies on public faith in the election process and the willingness of the electorate to accept election results. Vote counts are never accurate to the single vote — there is always noise in the system — which is why the willingness to accept the results is essential. Many Republicans held a grudge for years after Nixon’s loss to John F. Kennedy in 1960, claiming that Joe Kennedy’s allies manipulated the results in Illinois and Texas to throw the election to his son. And certainly many Democrats — John Lewis famously among them — continue to believe that Trump’s election was illegitimate. But in each case, life went on.
Equally critically, democracy relies on the good faith of the candidates themselves. The election in 2000 tested that faith, and Al Gore — like Richard Nixon before him in 1960 — understood that a losing candidate willingly conceding to the outcome of an election can be as important to the perpetuation of democracy as the outcome itself. Gore and Nixon each lost elections that their supporters to this day claim they might have won if they had pursued every legal remedy — recounting every vote in Florida in Gore’s case, and perhaps dredging Lake Michigan to find missing ballot boxes in Nixon’s. Instead, they each made the judgment that the stability of the system was more important than their personal victory.
Gore and Nixon each kept faith with the nation’s founding principles in a manner that is nearly impossible to expect from Donald Trump. If there is one thing that Trump’s supporters and detractors likely agree on, it is that when push comes to shove, he will never graciously step aside to preserve the integrity and survival of the system.
Last week, Hawkfish, the election data analytics firm founded by Michael Bloomberg, indicated that they expect to see a scenario unfold on election night that they call the Red Mirage. As of election night Donald Trump will appear to have won — perhaps even by a landslide — with the race flipping to Biden (should Biden win) as the mail-in vote is counted. This is an outcome that the Trump campaign foresees as well, and is why Trump has been demanding that media networks declare a winner on election night. His objective is to delegitimize the post-election night vote count, but equally important, to garner a strategic advantage for the phases of the race that will follow Election Day; those who imagine that this race will end on Election Day should be forewarned.
On the evening of Election Day in 2000, the networks first called the race for Al Gore, based on exit polls. Then, as the evening wore on, those projections were retracted, and in the early hours of the next morning George W. Bush was ultimately declared the winner; a result confirmed later that day by Florida Secretary of State Katherine Harris. For the rest of the 36-day saga, before the Supreme Court ultimately decided the election in Bush’s favor, the narrative from the Bush camp was whether Bush’s “victory” would be taken away.
A “Trump wins, now it’s being stolen” narrative matters to the Trump campaign, and not simply as a way to rile up his supporters as the votes are being counted — though no one should be surprised to see gun-wielding caravans of Trump supporters showing up at county courthouses to intimidate vote counters as the process unfolds — but also to set the stage for upending the Electoral College vote itself. While determining the final vote tally could take weeks — the Florida recount lasted 36 days before it was stopped by the Court in 2000 — the timing of the meeting of the Electoral College has already been set by statute as “the first Monday after the second Wednesday in December” or December 14th.
Should Donald Trump fail to win the election outright, he could get a second bite at the apple. His purpose in continuing to hammer away at the legitimacy of mail-in voting, and laying the groundwork to legally contest vote counts on a state by state basis, is about more than just trying to assure that he wins an Electoral College victory. For the electors won by a candidate from any given state to vote in the Electoral College on December 14th, that state’s governor must first sign a Certificate of Ascertainment that designates the names of the electors for that state. For example, should Donald Trump lose the State of Florida in the general election, it will be the responsibility of his close ally, Florida Governor Ron deSantis, to certify the results of the vote and designate the Biden electors to represent the Florida in the Electoral College. This raises the possibility that should deSantis not move promptly to certify the vote — faced with the Trump wins, now it’s being stolen narrative embraced by Florida Republicans, and ongoing litigation by the Trump campaign challenging the validity of the vote — the certification of Florida’s electors could be delayed long enough that they are unable to cast their votes in the Electoral College on December 14th. In such an event, if the designation of electors from one or more states is delayed past that date, the result of the Electoral College vote could be different from what it appeared to be once all of the votes appeared to have been counted following Election Day. Absent an act of Congress, there is no wiggle room with respect to December 14th as the date on which the electors must vote — even if one or more states failed to designate their electors in time — and it is nearly impossible to imagine that Mitch McConnell would allow a bill delaying the December 14th date to come to the floor should it be to Donald Trump’s advantage to force the Electoral College vote to proceed as scheduled.
Whatever the result of the Electoral College vote on December 14th, the next step in the process is set forth in the Constitution. On January 6th, the House and the Senate meet together in the House chambers to officially tally the vote from the Electoral College. Should neither candidate win the 270 votes necessary to be deemed the winner — as could well be the case in a close election if one or more state governors fail to designate their electors — the ensuing steps are set forth in the Twelfth Amendment to the Constitution, as modified by the Twentieth Amendment. Under the Twelfth Amendment, the House of Representatives “shall immediately choose” the President. The vote in the House, however, would not be a majority-rules vote as many imagine, but rather would be based on one vote per state, with the vote determined at the discretion of each state’s congressional delegation — meaning that each state’s vote would presumably be determined by which political party holds a majority of the House seats in that state — with a simple majority of the states required to determine the President. The selection of the Vice President is simpler, based on a majority vote of the Senate.
In the current Congress, Republicans hold a narrow 26–23 edge in the House of Representatives — the 50th state, Pennsylvania, is tied — based on this Constitutionally-mandated method of voting, as there are currently 26 states whose Congressional delegation is majority Republican. Therefore, were the current Congress to hold the vote in a circumstance where neither Trump nor Biden won 270 electoral votes because one or more states failed to designate their electors, Donald Trump would win the presidency. Republicans similarly hold a majority in the Senate, meaning that Mike Pence would be elected to serve alongside Donald Trump.
The current congressional term ends on January 3rd, however, and a new Congress, elected in November, is scheduled to be sworn in that same day. It is the new Congress that would actually hold the vote, should it come down to that, on January 6th. The configuration of both the House and the Senate could change, or they could remain as they are. For example, should the House remain as it is, but the Senate flip to the Democrats, a rather unimaginable circumstance could occur. For the first time since 1796 — when Federalist John Adams won the Presidency and served for four years with Democratic-Republican Thomas Jefferson as his Vice President — we could have a split result, with President Donald Trump and Vice President Kamala Harris elected to lead the nation for the next four years.
No doubt, there would be challenges along the way, should this scenario transpire, including challenges to the legality of a state governor delaying the designation of delegates for apparent partisan advantage. The Constitution also establishes quorum requirements of two-third of the members for the House and the Senate on January 6th to proceed. Should Democrats find themselves in the midst of a challenge to the election intended to overturn the result, it is hard to imagine them participating in a quorum call to preside over their own execution. And then there are challenges to the eligibility of Kamala Harris to serve as Vice President, which Trump has already foreshadowed, along with everything else.
If the chaos that Donald Trump has long promised makes it this far, the Supreme Court has not effectively intervened, and we still do not have a President, the Twentieth Amendment allows Congress, in oblique terms, to “provide for the case.” One thing is certain, Donald Trump’s current term in office ends on January 20, 2021. Should no new President have been confirmed by that date, the Presidential Succession Act would put Nancy Pelosi in the White House, even if it requires Donald Trump to be frog-marched out by federal agents as his legal term in office comes to an end.
Is this scenario unthinkable? Perhaps, but for more than three years we have watched time and again as the unthinkable has come to pass. A thorough legal analysis may determine either that the date of the Electoral College vote is not set in stone, or perhaps that a governor does not have the discretion to delay the designation of electors. But litigation takes time, which is exactly what Donald Trump would be counting on. If the process indeed relies on good faith, as history suggests, then it is ripe for abuse by a political leader that views good faith as weakness, and a political party that is now fully under his sway. After all, in the wake of the RNC convention last week, the Republican Party now stands for nothing less, and nothing more, than whatever Donald Trump might tweet from time to time, and “Trump wins” is the full and complete 10-character platform of the GOP.
Follow David Paul on Twitter @dpaul. He is working on a book, with a working title of “FedExit! To Save Our Democracy, It’s Time to Let Alabama Be Alabama and Set California Free.”
Artwork by Joe Dworetzky. Check out Joe’s political cartooning at www.jayduret.com. Follow him on Twitter @jayduret or Instagram at @joefaces.