President Trump was asked more than once if he would accept the results of the November elections. He won’t say it. What it has done is repeatedly assert that the anticipated increase in mail ballots will “manipulate” the voting process.
The problem is the peaceful transfer of power from an outgoing president to his successor, no matter how bitter the campaign. It is a transition mandated by the 20th Amendment and a critical American tradition.
“I have to see,” Mr. Trump said when Chris Wallace of Fox News asked him last Sunday if he would accept the results. “No, I’m not going to say yes. I’m not going to say no, and not the last time either.” During a presidential debate with Hillary Clinton in 2016, Trump answered a similar question by Wallace saying, “I will keep you in suspense.”
Constitutional scholars and electoral experts argue that a president cannot rule out the election results and hold on to power.
“It does not depend on President Trump, and the country does not have to satisfy him because he has lost,” says Jonathan Turley, a professor of constitutional law at George Washington University and a legal analyst at CBS News. “The Secret Service on Inauguration Day is under the direction of the new president. Upon the oath of office assumed by his successor, President Trump becomes a guest in the White House. If he remains, he becomes a non-guest wanted. If he refuses to leave, he becomes an arrested guest. “
However, Turley says, the president (and any presidential campaign) can challenge the outcome in a given state, although there are rigid time constraints. Counting requests are allowed in 43 states, according to the National Conference of State Legislatures. Some of those states require that the margin between candidates be below a certain threshold.
This is how the election works: election officials in each state count the votes and give voters to the presidential candidate who wins the most votes in their states. (Maine and Nebraska give their voters proportionally.)
According to the Federal Election Commission, states have until December 8 to report the results. State voters (the system established by Article II of the Constitution) meet on December 14 to cast their votes. The new Congress meets on January 6 to certify them.
Such certification, in the absence of court orders, serves as the official acceptance of the election. This process is described in the 12th Amendment: “The President of the Senate, in the presence of the Senate and the House of Representatives, will open all certificates and the votes will be counted.”
Closed elections are already troubling for campaigns, and the pandemic will bring a unique set of challenges. Election officials in key battlefield states are sounding the alarm that, due to the likely unprecedented increase in absentee votes, the results will take longer to count, so we are likely to see Election Day in an “Election Week“ Pandemic primaries offer some evidence of this: New York City officials have taken more than a month to count the votes for the June primaries.
Trump has already raised questions about the legitimacy of the results in such a scenario, complaining that the process will be manipulated, although there is little evidence of fraud.
In defending Trump’s arguments, Republicans refer to cases in which Democrats have questioned the election results in the past, pointing to Stacey Abrams in Georgia’s 2018 gubernatorial race. Abrams argued that efforts to suppress Georgia voters brought Republican Brian Kemp as a certified winner and that the state had mismanaged the election.
Before the fall, the Trump campaign criticized states’ actions to expand absentee voting and decisions by some election officials to proactively send absentee ballot request forms to registered voters. Trump has threatened to withhold funds from these states, even though the movements have been bipartisan. Earlier this month, for example, the Iowa Republican Secretary of State announced that he would send absentee ballot request forms to all active registered voters.
“We don’t know what kind of mischief the Democrats will try before November. If someone had asked George W. Bush and Al Gore the same question in 2000, could they have foreseen the protracted fight for Florida?” Trump campaign communications director Tim Murtaugh said in a statement to CBS News.
Even without a pandemic, in an election he won, Trump claimed that election fraud had stolen him. Less than a week after it opened, he was tweeting demands for “a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and … even, those registered to vote who are dead ( and many for a long time) “.
He established a commission to investigate the issue. The commission found no evidence and dissolved.
Two years later, during the 2018 midterm elections, he tweeted: “Florida elections should be called in favor of Rick Scott and Ron DeSantis on the large number of new ballots that appeared out of nowhere, and many ballots are missing or falsified. vote counting is no longer possible: ballots are massively infected. Must go with Election Night! Both candidates won their races.
There is some concern among electoral experts about the impact of the president’s rhetoric. Given the political divide in the vote by mail and Trump’s previous comments, he could try to belittle the absentee ballots if they don’t match the results of the in-person votes.
“The worst case scenario is that there is confusion or there is a discussion on January 6 about what the result is,” says Edward Foley, professor of constitutional law at Ohio State University.
Foley points to the 1876 election, which was not decided until approximately 48 hours before Inauguration Day, as an example of a potential scenario. In that contest, neither Rutherford B. Hayes nor Samuel Tilden won the majority of the electoral votes because three states presented conflicting results. And the Democratic House and the Republican Senate disagreed on how to interpret the electoral presentations of the states in question.
Then, Congress appointed a special commission made up of five members of the House, five senators and five judges of the Supreme Court, who finally decided that Hayes would be the winner. (The decision had lasting consequences beyond electoral politics: Hayes, as part of an agreement with the opposing party to accept the results, agreed to withdraw federal troops from South Carolina and Louisiana, ending Reconstruction.)
Foley fears something similar in 2020: Election officials in a battlefield state certify the final count, including vote by mail, and declare Candidate X as the winner of that state. But Candidate Y could claim that the popular vote was flawed due to suspicious absentee ballots, and convince the state legislature to designate state voters directly under Article II of the Constitution. Therefore, there would be competitive results from the same state. The statute conceived after the 1876 elections is ambiguous as to what comes next, Foley says, and would require compromise in Congress.
There is no constitutional mandate that voters vote for the candidate who obtained the most votes in their states. In June, the Supreme Court ruled that states have the right to require their constituents to vote for whoever wins their state. But only 32 states have that requirement. The battlefield states of Pennsylvania and Georgia, for example, do not require it.
Campaign operatives don’t have to go too far in history to find nightmare scenarios of confusing election results. After weeks of legal battles, the 2000 election between George W. Bush and Al Gore ended with a Supreme Court decision. Against the deadline for voters to meet and a divided nation, Gore acknowledged, instead of issuing more challenges.
“Now the United States Supreme Court has spoken. Let there be no doubt, although I totally disagree with the court’s decision, I accept it,” Gore said in his award speech. “I accept the purpose of this result, which will be ratified next Monday at the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”
There is also no legal requirement that a candidate verbally acknowledge, but such acknowledgments are often made in service to unite the nation after a political campaign and to assist with the peaceful transition of power.
“Concessions are simply part of the culture of democracy or social practice,” said Foley. “The concession speech is the most important element of the election because each election must have a losing side and a winning side.”
Transitions are not always smooth. Few were as embittered as Abraham Lincoln’s entry into power after the 1860 election, when several states parted ways with the Union before its inauguration. The transition from President Herbert Hoover to Franklin D. Roosevelt after the 1932 election was particularly difficult and uncooperative, and occurred during a persistent financial crisis.
“The presidents sadly left, but they always left,” says David Marchick, director of the Association for Public Service’s Center for Presidential Transition. “We have had many bad and bitter elections, and the rule of law has always worn the day.”
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