As President Trump Clings to Power, the Electoral College Could Be Used to Defy Election Results

November 11, 2020

As President Trump Clings to Power, the Electoral College Could Be Used to Defy Election Results

 

On Saturday, November 7, 2020, Joe Biden was declared President-Elect by the nation’s media networks, from Fox News to the Associated Press, after state popular vote tallies lifted him above the 270 electoral college threshold. His inauguration is slated for January 20th, 2021. The time between election day and inauguration day contains several procedural events that usually pass by unnoticed by the American people. But this year, this election, and the Trump presidency are anything but “usual.” As of this writing, President Trump refuses to accept the election results in the states that determined President-Elect Biden’s win, and he continues to assert falsehoods that the election was stolen from him through widespread voter fraud.

The President, his campaign, and his advisers are trying to sow doubt about the legitimacy of the 2020 election. Due to the COVID-19 pandemic, many states expanded access to vote through mail in ballots and early voting, and millions of voters chose these options. President Trump openly criticized these voting methods in an attempt to undermine the public’s faith in the process. He warned supporters that mail in ballots would be used as a ploy to rig the election against him. Indeed, now that the election results are decisive for Biden, and many states took days to count millions of mail-in ballots, President Trump has declared himself the victor and has initiated several lawsuits to have results overturned.

Should his campaign’s lawsuits fail, as most expect, many are worried about what other tactics President Trump might employ to secure a second term. An important date looms large on the calendar: December 8, 2020. By that day, the Constitution requires state legislatures to appoint their electors, a collection of 538 individuals who conduct the actual vote for President of the United States. In almost all cases, state legislatures appoint electors to reflect the will of their state’s voters, but the Constitution does not require them to. According to an article published by the Atlantic on September 23, 2020, some Trump campaign officials have discussed plans to lobby the Pennsylvania state legislature to overrule the result of the election and submit a slate of electors pledged to President Trump. Three Republican leaders in the Pennsylvania state legislature told the Atlantic that they have discussed this strategy. With Joe Biden leading Pennsylvania by tens of thousands of votes, a decision by the state legislature to hand the state to Donald Trump would set off a constitutional crisis. The Democratic Governor could intervene and send an alternate set of electors for Joe Biden.

This worry is not simply academic. In 2000, prior to the landmark Bush v. Gore Supreme Court case that amounted to an election victory for President Bush, Florida Governor Jeb Bush certified electors for his brother, and the Gore campaign was preparing for an alternate slate of Democratic electors to deliver the state for him. This crisis was avoided when Gore conceded before the electoral college met.

On December 14, 2020, the Electoral College will meet, separately in the fifty states and Washington, DC, to vote for President. They will then send their results to Congress. If any state or states send more than one result, the crisis will come to a head on January 6, 2021, when Congress assembles to formally count the Electoral College’s votes. The Twelfth Amendment says “The President of the Senate [The Vice President] shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.” Shall then be counted. Who does the counting? There is no clear directive on what to do if there are two dueling vote counts and the Vice President and Members of Congress cannot agree on which votes to count.

This has happened once before, in 1877, when four states sent dueling electoral results to Congress. Democrat Samuel Tilden and Republican Rutherford B. Hayes had competing claims to the presidency, and Democrats planned to obstruct the count through inauguration day. Ultimately, Tilden conceded in exchange for a withdrawal of federal troops from the South, amounting to an end to Reconstruction from the Civil War.

Americans take for granted that their vote in November will lead to a peaceful and orderly transfer of power, but in 2020 and 2021, we might see the arcane structures prescribed by the Constitution in action.

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