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Joe Biden won the presidential election, a fact that Donald Trump and other Republicans refuse to acknowledge.
There is concern that the president and other Republicans will do everything they can to stay in power. “There will be a smooth transition to a second Trump administration,” Secretary of State Mike Pompeo said last week. William Barr, the attorney general, has also authorized federal prosecutors to begin investigating electoral irregularities, a move that prompted the head of the justice department’s electoral crimes unit to resign and move to another position. On Tuesday, Trump fired Christopher Krebs, the director of the federal agency that endorsed the reliability of the 2020 elections and had rejected the president’s unsubstantiated claims about voter fraud.
Yet despite all of Trump’s machinations, it is extremely unlikely that he will be able to find a way to stay in power or stage a coup. Here is an explanation why:
Trump refuses to accept that Joe Biden won the presidential election. Is there a constitutional way for him to strike a coup and stay in office for another term?
Not really. The electoral college meets on December 14 to cast its vote for president, and nearly all states use the state popular vote to assign their constituents. Biden is expected to get much more than the 270 electoral votes he needs to become president. His victory is not state dependent and he probably has an insurmountable advantage in Michigan, Nevada, Wisconsin, Pennsylvania and Arizona.
There is a risky legal theory, raised by Republicans before the election, that pro-Republican legislatures in places like Michigan, Wisconsin and Pennsylvania could ignore the popular vote in their states and appoint their own constituents. Federal law allows legislatures to do this if the states “did not make a decision” before the day the electoral college meets. But there is no evidence of systemic fraud or wrongdoing in any state, and Biden’s dominating margins in these places make it clear that the states have indeed made up their minds.
“If the country continues to uphold the rule of law, I do not see a plausible constitutional path for Trump to remain president unless there is new evidence of a massive failure of the electoral system in several states,” Richard Hasen, professor of law at the University . from California, Irvine, who specializes in elections, wrote in an email. “It would be a brazen and undemocratic takeover to try to use state legislatures to bypass the voters’ choice and I don’t expect that to happen.”
For legislators in a single state to choose to override the clear will of their voters in this way would be extraordinary and likely cause a huge outcry. For Trump to win the electoral college, several states would have to take this extraordinary step, a move that would provoke an extreme backlash and a veritable crisis of democracy across the country.
“There is a strange fascination with various imagined dark scenarios, perhaps involving renegade state legislatures, but this is more dystopian fiction than anything that can happen,” said Richard Pildes, a law professor at New York University. “The irony, or the tragedy, is that we managed to run an extremely fluid election, with record turnout, under exceptionally difficult circumstances, and yet a significant portion of the president’s supporters are now convinced the process was flawed. “.
Is there any indication that Republicans in these important states will agree to this?
Shortly after Election Day, Jake Corman, the top Republican in the Pennsylvania state senate, indicated that his party would “follow the law” in Pennsylvania, which requires awarding voters to the winner of the popular vote. In an October op-ed, Corman said the state legislature “has and will have nothing to do with choosing the state’s presidential electors or deciding the outcome of the presidential election.”
Last week Republicans in the Pennsylvania legislature said they wanted to investigate allegations of voter fraud. There is no evidence of widespread malfeasance in the state, but the move is alarming because it could be the beginning of an effort to undermine popular vote results in the state. But in a major blow to the president’s legal efforts, the state supreme court ruled that Philadelphia election officials did not improperly prevent the Trump campaign from observing mail ballot counts.
The Republican-led legislature in Michigan is also investigating the election, as are Republicans in Wisconsin. There is no evidence of widespread wrongdoing anywhere.
Is this in any way related to the lawsuits Trump is filing?
The Trump campaign has filed a host of legally dubious lawsuits since Election Day. The purpose of these lawsuits appears not to really be to overturn the election results, but to try to create uncertainty and prolong the counting process.
Each state has its own deadlines for certifying election results which are then used to allocate electoral college votes. In at least two states, Pennsylvania and Michigan, the Trump campaign seeks to prevent officials from certifying the results.
That certification schedule is important because federal law says that as long as the election results are finalized by December 8 of this year, the result is “conclusive.” That provides protection against Congress, which is responsible for counting electoral college votes, from questioning election results. By prolonging the process, the Trump campaign may be trying to beat that deadline and create more room for maneuver to guess the results.
Even if that’s the hope of the Trump campaign, the courts are unlikely to intervene, Pildes said.
“The states are going to start certifying their vote totals starting in less than 10 days, and there is no basis in the claims made so far for the courts to stop that process,” he said.
Let’s say the worst-case scenario materializes and Republican-led legislatures override the will of the people in several states. Is there a safeguard to stop Trump?
Yes. Michigan, Wisconsin, Pennsylvania, and Nevada have Democratic governors who would refuse to approve a group of Trump voters with the popular vote clearly showing Biden winning their status. Instead, they would present the voters to whom Biden is entitled as winners of the popular vote.
Then it would be up to Congress, which is in charge of counting the electoral college votes, to decide what to do. The law outlining the process for how Congress should handle a state’s constituency dispute is extremely confusing, but experts believe the list endorsed by a state’s governor is the legally sound one. There is a rival theory that Senate President Mike Pence could have control over the process. A dispute over voters between the US House and Senate is the worst case and the US Supreme Court would likely be asked to intervene.
Regardless of the duration of the dispute, the constitution sets a final deadline. Even if the count is in progress, the terms of the president and vice president end at noon on January 20. At that point, if there is no end result in the race, the Speaker of the House, probably Nancy Pelosi, would become the interim president.
