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US President Trump certainly will not undermine democracy to stay in office. But especially if the election results are tight, America’s branching legal system offers you the opportunity to turn a defeat into a victory.
The Republican Majority Leader in the US Senate was prompted to make an unusual statement Thursday. “The winner of the November 3 elections will take office on January 20.” tweeted Mitch McConnell. There will be “an orderly transition” from this presidency to the next, “as has occurred every four years since 1792.”
This is exactly the question that the President of the United States, Donald Trump, had previously left open. In a briefing at the White House, a journalist asked him if he could guarantee that there would be a peaceful transfer of power after the elections. Trump sidestepped the question and instead called the vote-by-mail “a disaster.”
This appearance of the president has been used as an opportunity to accuse him of wanting a coup. That’s silly. But like four years ago, Trump deliberately questions the legitimacy of the presidential election for good reason. He’s very successful at this too: 59 percent of Americans aren’t convinced that elections will be free and equal. This time, Trump is primarily targeting voting by mail. The reason is obvious: Polls show that more Democrats than Republicans vote by mail.
Four years ago, almost a quarter of the votes were cast by mail. Due to the corona pandemic, the proportion is likely to increase significantly. In six states there will even only be votes by mail. Most of them are “blue” states where Democrats can count on a secure majority. By the way: according to research, postal votes in the US only lead to fraud in isolated cases. “There is simply no basis for the conspiracy theory that voting by mail causes distortion,” says Ellen Weintraub, who heads the US federal electoral authority, FEC.
“We do not have an electoral law, we have 51”
One possible scenario for election night is that after counting the votes cast in the polling stations, Trump has won enough swing states and thus the presidential election as well, but loses this majority again when the votes are counted. votes by mail.
In view of the confusing legal situation, in such a case it might be obvious for Trump to question the outcome of the election. There are many ways to do this. “We do not have an electoral law, but 51, one for each state, plus one for the United States as a whole,” says American political scientist Paul Sracic. “Some states count absentee votes only if they arrive before voting day, others count them if they are postmarked before the vote. In a tight election, this could be a problem. It could be close enough that the loser has hope to be the winner. “
In theory, Trump could declare himself the winner before mail-in votes are counted in particularly competitive states because, based on the votes counted, he has the necessary 270 voters in the Electoral College. This is one of the scenarios that the “Transition Integrity Project” has gone through (that is, the integrity transition project between two presidencies, in which the “transition” does not exclude the possibility of the president being reelected). The more than one hundred experts of the project did not assign probabilities for their different scenarios, but law professor Rosa Brooks told the American portal Fivethirtyeight that the group was certain that the result of the election would be questioned in some way. And that one of the results of her investigations is that the president has much better opportunities to assert her vision of things than her opponent.
In the end, every dispute ends up in the Supreme Court
In a scenario developed by constitutional attorney Edward B. Foley, Trump has a majority in Pennsylvania on Election Night, but loses it again when the vote-by-mail ballots are counted the next day. Pennsylvania is an undecided state and could vote with its 20 votes in the Electoral College. The state is also interesting here because the governor is a Democrat and the Republicans have a majority in both houses of parliament there. Both Governor Tom Wolf and the Pennsylvania Senate and House of Representatives could each send a group of voters and women to Washington: Wolf could send Democrats, Parliament could send Republicans. Something similar happened in 1876.
Such a dispute would likely end in the United States Congress, because it would have the right to decide which of the two groups can cast the votes for Pennsylvania. However, the law does not say which chamber would be decisive. There is some evidence that Republicans will maintain a majority in the Senate and Democrats a majority in the House of Representatives after the December 3 election. Both cameras would block each other. The United States Supreme Court would then have to decide on this blockade.
Trump is currently in the process of improving his chances there: Due to the death of Liberal Justice Ruth Bader Ginsburg and the swift replacement, the Conservatives will have a six to three vote majority in court in the future. Trump himself made the connection between a legal dispute over the election result and the majority in the constitutional court. “I think it will end up in the Supreme Court,” he said of the presidential election. “And I think it’s very important that (then) we have nine judges.” The court currently has three liberal judges and five conservative judges. Given that presiding judge John G. Roberts occasionally votes with the Liberals, a deadlock is conceivable without a replacement for the vacant seat.
There must be an oath on January 20
It would not be the first time that judges have determined who will be the president of the United States. The 2000 election, when Democrat Al Gore lost to Republican George W. Bush, was decided by the Supreme Court, with a majority of five to four votes.
The “Transitional Integrity Project” assumes that two factors will be decisive: first, the question of how adamantly Republicans in the states and in Congress support Trump if he does not accept his defeat. Second, the uniqueness of the electoral result. With a clear victory for Democratic nominee Joe Biden, even loyal Republicans would find it difficult to sustain a scenario as described by constitutional attorney Foley for Pennsylvania.
Of course, it is also possible that it is not Trump who questions the election result, but Biden; Foley also presented a scenario in which Arizona voters are not accepted by Democrats in the United States Congress. However, so far it has been primarily Trump who sees voter fraud on every corner. “Given that Trump nullified millions of votes when he won in 2016,” writes Geoffrey Skelley in Fivethirtyeight, “it’s hard to imagine that he won’t do the same this year if it promises to be a controversial election. Win.”
Mitch McConnell is almost certainly right, and there will be an inauguration on January 20; after all, that’s what the law says. But will both Democrats and Republicans see this transition as “proper,” where they have had less and less say on key issues in recent years? Probably not.
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