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Contrary to reality, US President Trump sees himself as the winner of the election and accuses the Democrats of fraud. Can you still avoid the seemingly inevitable by legal or political means? A closer look shows that this scenario is unlikely.
President Donald Trump’s trademark is the confident appearances of himself, here a month ago on the balcony of the White House. But since Election Day, Trump’s options have been narrowing.
Four days after the US elections, President Donald Trump is facing an increasingly dire situation. His challenger Joe Biden has the target of 270 voter votes at his fingertips and leads in three still-undecided states, one of which is enough for overall victory. Trump is fighting his threat of being removed from office with his well-known media. He spreads conspiracy theories about alleged Democratic electoral fraud without being able to provide concrete evidence.
The aim is apparently to undermine the credibility of the election and prepare for a protracted legal battle designed to miraculously help Trump stay in power. It is not only based on the conservative-dominated Supreme Court, but also on its base, which sticks to it in the hyperpolarization of American society and sees the end of the world in a Biden victory.
But how promising is Trump’s defensive battle? Can you stay in the White House manipulating the election results?
The corresponding plans have been pending in Republican circles for a long time. In a nightmare scenario, Republicans in one or more states would try to turn the outcome in their favor. It is important to understand that the president is not elected directly by the people, but indirectly by 538 electors from individual member states. These people are traditionally determined on the basis of the outcome of the elections. One of the tricks discussed would be not to wait for a full recount in the event of election disputes. Republican-dominated state parliaments would take the reins into their own hands and appoint their own electors, a practice that was still widespread in the 19th century. This is how the Republicans would secretly achieve victory.
There have been times in American history when two competing voter lists were drawn up in one state and Congress had to play the referee. But Trump faces several obstacles on this path.
Biden performs in various states
In contrast to the electoral battle in Florida 20 years ago, the decision in the race for the White House does not depend on a single state this time. Based on the partial results, it can be assumed that Biden has 306 voters, Trump only 232. The president would have to win at least 37 additional voters through legal action or intrigue to secure his re-election. For mathematical reasons, this would mean inverting the result in at least three states. That is a big obstacle and it complicates the starting position.
Counts usually change little
Trump has the legal means to request a recount if the results are tight. Such tracking should take place in Georgia, Wisconsin, and possibly Pennsylvania, where Biden is currently in the lead with just 0.1, 0.6, and 0.4 percentage points, respectively. However, counts usually do little to change the overall result.
Over and over again in the past, a new winner of the elections was proclaimed. For example, in 2008, a Republican senator from Minnesota lost his job as a result of a recount, and in 2004 the battle for the governorship of Washington state tipped in favor of the Democrats. But at that point the results only changed from 400 to 500 votes. This time, however, Trump would have to get thousands, in various states even tens of thousands, of additional votes to win. It is not realistic.
No evidence of voter fraud
Trump’s lawyers have filed lawsuits in every controversial state, but they haven’t gotten very far. The basic problem is that Republican officials have so far failed to come up with any convincing legal argument to back up the massive voter fraud claim. There were individual irregularities, but nowhere to a great extent or even to a decisive extent. While Trump obviously aims to take his lawsuits to the Washington Supreme Court, that doesn’t help him much when there’s a lack of evidence. Trump has appointed three of the nine justices to the Supreme Court and has given them a distinctly conservative profile. But the panel will not go out of its way to approve obviously unfounded complaints.
Democrats occupy important positions of power in many swing states
If there is a dispute over the count in a member state, which party has how much influence plays a central role. In Nevada, Democrats control both the governorship and parliament. In Georgia and Arizona, the same is true for Republicans. In Pennsylvania and Wisconsin, while Republicans control the legislature, the governorship is in Democratic hands. This further reduces Trump’s chances.
The scenario in which Pennsylvania’s state parliament assigns voters to Republicans alone, for example, seems implausible. There is no legal basis for this. The Republican leader of the Pennsylvania Senate has frankly admitted it. More important is the fact that the Democrats provide the governor and the secretary of state, that is, the magistrate who oversees the elections. According to the Electoral Counting Act of 1887, governors have the right in certain disputes to proclaim the winner of elections in the respective state. Additionally, a governor could veto if the legislature changes the electoral law without further ado. This gives Democrats in several swing states a strategic advantage.
Without decision, Pelosi becomes president
Can Trump just prolong the legal battle and refuse to leave the White House? No, because the constitution is clear on this point: a president’s term ends on January 20 at 12 noon. If no decision has been made by then, authority under the Presidential Succession Act of 1947 will pass to the Speaker of the House of Representatives on an interim basis. Currently, and probably also in January, it is about Democrat Nancy Pelosi. Therefore, the Democrats also have a strategic advantage at this point. President Trump can’t just play for time.
Republicans don’t control Congress
But what happens when one or more states are truly divided in a political party dispute, unable to announce a recognized electoral result, and still tip the national balance? This is not a completely theoretical scenario. In the chaotic election of 1876, four states sent competing lists of Democratic and Republican voters to Washington. If this were to happen again, Congress would have to judge the validity of the electoral lists in its session of January 6, 2021. The Senate and the House of Representatives could thus assign Biden or Trump the remaining votes to win. But this requires a consensus between the two houses. Since Democrats will certainly have a majority in the House of Representatives, they automatically have veto power against any attempt by Republicans to declare Trump the winner in a controversial state.
2020 is not 1876
The 1876 example is regularly mentioned in nightmare scenarios. Back then, it took Congress more than two months to resolve the dispute over competing electoral lists. The result was highly controversial, as the candidate with the most votes, Democrat Samuel Tilden, did not win a majority of the voters in the end and had to admit defeat to his Republican opponent Rutherford Hayes.
That state crisis may serve as a warning, but the example cannot simply be transferred to current conditions. For one thing, things were much more chaotic then; in three of the four states in dispute there were parallel governments that published different electoral results. America today is far from such a situation.
On the other hand, with the Electoral Law of 1887, Congress subsequently promulgated rules that aimed to prevent electoral debacle in the future. Due to its ambiguous wording, this law is not a clear guideline. But first, it restricts Congress’s room for maneuver: it can no longer question the outcome of a member state’s elections, as long as that state has announced an official final result by a deadline, this year on December 8. Second, the law contains rules in the event that lists of voters from a member state are available. These provisions are not always clear, but represent a step forward compared to the legal situation before 1876.
Trump doesn’t have the security apparatus on his side
If the United States were an authoritarian state, the president would have a crucial instrument of power on his side thanks to control over the military and police. However, Donald Trump is in a completely different situation. Even if he toyed with the idea of asserting himself under the protection of armed security in the White House, this would not be a realistic endeavor.
The nation’s highest official, Gen. Mark Milley, has made it clear that the military will stay out of any electoral dispute. That was a problem for the courts and Congress, said the chairman of the Joint Chiefs of Staff in mid-October; the military has no role to play. In general, there is no apparent appetite in the police, military and secret services for the illegal support of a president, who in recent years has made disparaging remarks about generals and the federal police.
So far, Trump has taken exactly the path he took in the run-up to the election: He’s trying to wreak havoc, concocting an alleged Democratic plot, and bombarding courts across the country with lawsuits. But seen in the light, its chances of success seem slim. A worsening of the current situation to a deep national crisis is not entirely impossible. The mere fact that this must be taken into account is a symptom of the disease in American democracy. But especially in the context of the president’s limited possibilities, the hope remains that Trump himself, under the influence of his advisers, will accept foreseeable defeat before it reaches the worst.
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