We are on the eve of the first debate between Joe Biden and Donald Trump, and Biden is on track to win the election. 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 in August, he had no intention of conceding defeat, no matter how the vote may turn out. “The only way they can take this election away from us is if this is a rigged election,” he said, as delegates shouted their approval.
Whatever the outcome of the race, we will never hear Donald Trump deliver a gracious concession speech, thanking his supporters for all their hard work and committing to working with the incoming administration. After watching him trash every conceivable presidential norm and undermine every institution that offered the slightest resistance, there is no reason to believe that Trump will concede an election defeat and the peaceful transfer of power – regardless of Mitch McConnell’s assurances.
The core underpinning of our democracy is faith. Our institutions have no inherent durability without the confidence of the citizenry and the support of our leaders. For several hundred years, electoral democracy, in particular, has relied on two things. First, it depends on public faith in the election process and the electorate’s willingness to accept election results. Vote counts are never accurate to the single vote – there is always noise in the system, so 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. Undoubtedly, many Democrats continue to believe that Trump’s election was illegitimate. In each case, life went on.
Secondly, democracy relies on the good faith of the candidates themselves. The election in 2000 tested that trust, but Al Gore humbly conceded the race because he understood that accepting defeat is just as crucial to the perpetuation of democracy as the outcome itself. Gore and Nixon lost elections that their supporters to this day claim they might have won if they had pursued every legal remedy. Instead, they each made the judgment that the system’s stability was more important than their 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, when push comes to shove, he will never graciously step aside to preserve the integrity and survival of the system.
In early September, 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. The Red Mirage is the theory that on election night, Donald Trump will appear to have won – perhaps even by a landslide – with the race flipping to Biden as mail-in votes tally up. This is an outcome that the Trump campaign foresees as well, and is why Trump himself has been demanding that media networks declare a winner on election night. He is actively trying to delegitimize the post-election night vote count to garner a strategic advantage following Election Day. The race will not end on Election Day.
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 declared the winner. The result was 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. It is not merely as a way to rile up his supporters as the votes are being counted, 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 the Court stopped it in 2000 – the timing of the Electoral College meeting has already been set by statute as “the first Monday after the second Wednesday in December” or December 14.
Should Donald Trump fail to win the election outright, he could get a second bite at the apple. He is continually hammering away at the legitimacy of mail-in voting to lay the groundwork to contest the vote count on a state-by-state basis. It 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, that state’s governor must first sign a Certificate of Ascertainment that designates the electors’ names for that state for them to vote in the Electoral College on December 14.
For example, suppose Donald Trump were to lose Florida in the general election. In that case, it will be the responsibility Florida Governor Ron DeSantis – a Trump ally – to certify the results of the vote and designate the Biden electors to represent Florida in the Electoral College. This raises the possibility that DeSantis will not certify the vote promptly. 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 14.
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. Absent an act of Congress, there will be no wiggle room concerning December 14 as the date on which the electors must vote – even if one or more stat
es failed to designate their electors in time. It is nearly impossible to imagine that Mitch McConnell would allow a bill delaying the December 14 date to come to the floor if it is in Donald Trump’s favor.
Whatever the result of the Electoral College vote on December 14, the next step is outlined in the Constitution. On January 6, the House and the Senate meet together in the House chambers to officially tally the Electoral College vote. If neither candidate wins the 270 votes necessary to be deemed the winner, the next steps are outlined in the Twelfth Amendment to the Constitution. Under the Twelfth Amendment, the House of Representatives “shall immediately choose” the President. Under that scenario, which hasn’t happened since 1876, every state’s delegation gets a single vote. Each state vote would presumably be determined by which political party holds a majority of the House seats in that state. The selection of the Vice President is more straightforward – a simple majority vote of the Senate.
In the current Congress, Republicans hold a narrow 26-23 edge in the House of Representatives. Pennsylvania is tied, and Michigan has a 7-6 plurality for Democrats, with a 14th seat held by independent Justin Amash. Therefore, were the current Congress to hold the vote in a circumstance where neither Trump nor Biden won 270 electoral votes, Donald Trump would win the presidency. Republicans similarly have a majority in the Senate, meaning that Mike Pence would serve alongside Donald Trump.
However, the current congressional term ends on January 3, and a new Congress is scheduled to be sworn in that same day. The new Congress would hold the vote should it come down to that on January 6. The House and the Senate’s configuration could change. 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. We could have President Donald Trump and Vice President Kamala Harris lead the nation for the next four years.
No doubt, there would be challenges along the way should this scenario transpire. There could be challenges to a state governor’s ability to delay the designation of delegates for apparent partisan advantage, or Republican state legislatures could seek to usurp the process, as Barton Gellman has suggested in The Atlantic. The Constitutional also establishes quorum requirements of two-thirds of the House and the Senate members on January 6 to proceed. Should Democrats find themselves amid 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 demise. Additionally, there may be challenges to the eligibility of Kamala Harris to serve as Vice President.
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 to “provide for the case.” One thing is sure: Donald Trump’s current term in office ends on January 20, 2021. Should there be no new President 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 not. A new story by Politico reports that Nancy Pelosi is mustering Democrats for a possible House decision on the presidency. A thorough legal analysis may determine either that the Electoral College vote’s date 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 precisely what Donald Trump would be counting on. If the process relies on good faith, then it is ripe for abuse by Mitch McConnell – a political leader known for subverting political norms. The Republican Party now stands for nothing more, and nothing less than whatever Donald Trump might tweet from time to time. “Trump wins” is the GOP’s full 10-character platform, and they will stop at nothing to attain that.