How Trump Could Lose the Election and Remain President
A step-by-step guide to what might happen if he refuses to concede.
At the end of his congressional testimony in February, Michael Cohen, Donald Trump’s former fixer, floated a nightmarish possibility.
“Given my experience working for Mr. Trump,” Cohen said, “I fear that if he loses in 2020, that there will never be a peaceful transition of power.”
Cohen’s comments may seem hyperbolic, but they are worth taking seriously. In the aftermath of 2018, Trump told reporters, “Republicans don’t win, and that’s because of potentially illegal votes.” In a 2016 presidential debate, Trump refused to say whether he would accept defeat. “I’ll keep you in suspense,” he declared. Since that election, Trump has routinely said that his popular vote defeat was the product of “millions and millions” of illegal ballots. Now, facing potential legal jeopardy from ongoing investigations into hush-money payments and any number of apparent financial crimes, he might reasonably conclude that staying in office is the only way to avoid being indicted.
So what would it look like if Trump refused to concede? Is there really a way he could stay in office? It’s unlikely. For starters, successful autocrats rarely lose elections. “They take steps to rig it well in advance,” said Steven Levitsky, a comparative political scientist at Harvard University and the coauthor of How Democracies Die. They pack electoral authorities, jail opponents, and silence unfriendly media outlets. America’s extremely decentralized electoral system and powerful, well-funded opposition makes this very difficult to pull off.
The U.S. also lacks the kind of politicized military that lets some discredited autocrats, like Venezuela’s Nicholás Maduro, hang on. “I can’t imagine the military accepting an effort to turn them into a partisan arm of the executive,” said Robert Mickey, a political scientist at the University of Michigan who researches the history of authoritarianism in the American South.
But while nationwide cheating may be impossible, the Republican Party has proven more than willing to violate democratic norms where it has local control, and not every powerful institution is as neutral as the military. There is a sequence of events, each individually plausible, that would allow Trump to remain president despite losing the election—breaking American democracy in the process.
“I think we know that Trump will certainly, no matter what the result is, be likely to declare that there was fraud and that he was the rightful victor,” said Joseph Fishkin, a law professor at the University of Texas who studies elections.
Let’s assume that Fishkin is right. Here’s what could keep Trump in power.
1. The election is close.
If Trump lost in a blowout, alleging fraud would accomplish little. Even entrenched autocrats are often forced from office when they are heftily defeated.
But that doesn’t mean the race would need to be a redux of 2000, when George W. Bush won the presidency with an official margin of 537 votes, to spark a crisis. Given increasing polarization and the Republican Party’s growing impatience with democratic norms, experts told me the party might challenge even a clear defeat. “I am worried now, given the reaction to 2018, that you could get a dispute over a five-digit number,” said Edward Foley, a law professor and elections expert at Ohio State University.
Others suggested the margin could be even wider. When I asked Mark Tushnet, a constitutional law professor at Harvard University, just how close the election would have to be for Republicans to support Trump in disputing the results, he said, “ ‘Close’—as Trump supporters define it.”
However you construe the word, a close election is well within the realm of possibility. In 2016, Trump won his three pivotal states—Pennsylvania, Michigan, and Wisconsin—by five-digit numbers. Indeed, most of the country’s twenty-first-century elections have hinged on a few states with narrow margins.
“[2020] will probably be a nail-biter election where the polls are mixed or indeterminate, where it’s really not clear who is going to win,” said Levitsky. “If it’s close, just as Trump kind of did in 2018, Trump could basically claim fraud. And we don’t really have mechanisms to deal with that.”
2. Trump claims fraud, and Republicans back him up.
It is Wednesday morning, November 4, 2020. At 7:15 a.m., after a stressful night of watching the returns trickle in, the Associated Press projects that the Democratic presidential candidate will win Pennsylvania, and, with it, the presidency. Sure enough, it’s a narrow victory—279 electoral votes to 258. When all is said and done, the Democrat wins Wisconsin, Michigan, and Pennsylvania by only about 77,000 votes combined, the same amount Trump won those states by in 2016.
Donald Trump, who spent the past five months warning about fraud, has been eerily silent for most of the night. But as soon as the Democrat takes the stage to give her victory speech, he unleashes a barrage of tweets claiming that over 100,000 illegal immigrants voted in Michigan and that Philadelphia kept its polls open for hours later than allowed. “Without PHONY voters, I really won!” he tweets. “This is FRAUD!” Needless to say, the president does not call to congratulate his opponent. At an afternoon press conference, Trump’s press secretary announces he will not concede.
What happens next?
“In the best-case scenario, key Republicans would either talk him down or defect from Trump and say, ‘He’s wrong,’ ” Levitsky said. Most of the academics I spoke with also thought that this was likely. “I’m just having trouble wrapping my head around even this polarized and often radicalized Republican Party going along with that,” said Mickey. “This is kind of the limit condition of scenarios and surprise.”
But they acknowledged that defections were far from guaranteed. “Trump is still far and away the most popular Republican,” Levitsky said. “If Sean Hannity is claiming fraud on television and Rush Limbaugh is claiming fraud and Mitch McConnell is not willing to stand up and say, ‘No, there was no fraud,’ then we could have a real crisis.”
Unfortunately, that’s exactly what takes place. After forty-eight hours of silence, the Senate majority leader issues a terse press release in which he says he “recognizes the president’s serious concerns” about the election’s integrity. Some GOP representatives do break ranks and call for Trump to concede (I’m looking at you, Mitt Romney), but most stay silent or back the president’s claims. In a monumental act of gaslighting, Lindsey Graham tells reporters that Democrats are the ones undermining democracy. “They are afraid of a thorough investigation into the fairness of this election,” he declares. “They’ll stop at nothing to get this president out of office.”
3. Polarized courts side with the GOP.
Almost everyone I spoke with told me that, at this point, the election results would be challenged in court. The Trump campaign might sue Democratic-leaning counties for alleged “irregularities” and ask that judges toss out their results. “I can imagine the litigation in Pennsylvania taking the form of saying voting booths in Philadelphia were held open an excessively long time, an unlawfully long time, or the vote counters in some Democratic-leaning county unlawfully refused to count late-filed absentee ballots,” Tushnet said. Victory for Trump would “mean throwing out the ballots and saying that when those are thrown out, Trump gets the state’s electoral votes.” That, in turn, would allow him to remain president.
This argument, and the many others that the Trump campaign could employ, would almost certainly be specious. But Tushnet cautioned against underestimating the power of creative attorneys and motivated reasoning. The legal justification for challenging the returns would develop, he said, “in some ways that we can’t really anticipate now but that lawyers will come up with when it matters.”
The Republican Party has proven more than willing to violate democratic norms. There is a sequence of events, each individually plausible, that would allow Trump to remain president even after a clear defeat.
The academics I spoke with cited Bush v. Gore as evidence. When the U.S. Supreme Court’s Republican-appointed majority shut down the Florida recount, giving the 2000 election to George W. Bush, it did so by reading the Fourteenth Amendment’s equal protection clause in an expansive manner totally at odds with typical conservative jurisprudence. The Court even told other judges that their decision could not be used as precedent.
“The justices, along with everybody else, seemed to view disputed facts through the lens of the place where they have been ideologically,” said Rick Hasen, an election law expert at the University of California Irvine School of Law.
Still, it’s one thing for the courts to interfere in an election with a three-digit margin. It’s something else to invalidate a five-digit win. That would be truly extraordinary.
But it is not unthinkable. Autocrats abroad often rely on packed courts to cling to power, and while the U.S. judiciary is far more independent than that of Honduras or Venezuela, there’s no doubt that Trump has made a substantial imprint. He has appointed a historically high number of federal appeals court judges. He has added two justices to the Supreme Court. One of them, Brett Kavanaugh, has been outwardly partisan, raving during his confirmation hearings that he was the victim of an “orchestrated political hit” designed to function as “revenge on behalf of the Clintons,” fueled by “millions of dollars in money from outside left-wing opposition groups.” He obliquely warned, “What goes around comes around.”
4. Alternatively, Republicans play extreme constitutional hardball.
The courts aren’t the only mechanism Republicans might use to keep Trump in power. The Constitution gives state legislators free rein to decide how to select electors. Currently, most states legally require electors to vote the same way as the people. But in a state with complete Republican control over the government, the legislature and governor could, in theory, pass a bill that strips this power away from citizens between the election and the actual casting of electoral votes. (Indeed, in some instances, the state legislature alone might be able to usurp its constituents.) If this sounds far-fetched, recall that GOP governments in North Carolina, Michigan, and Wisconsin have all recently pulled lame-duck attempts to limit the power of incoming Democratic governors, with varying degrees of success.
To imagine how this would play out, consider Florida, where the GOP controls the governorship and both houses of the state legislature. If the Democratic presidential nominee narrowly won the state in 2020, Trump might cry fraud and demand an investigation—as he did in the aftermath of the state’s 2018 Senate race, when it wasn’t yet clear that Republican Rick Scott had won. The legislature could establish an investigatory commission stacked with partisans and designed to sow doubt about the outcome. Perhaps Kris Kobach, vice chair of Trump’s erstwhile Commission on Election Integrity (and the patron saint of franchise restrictions), would lead it.
The courts might still refuse to intervene. But Trump allies in the Florida legislature could pass a bill giving themselves direct power to appoint the state’s electors. Governor Ron DeSantis, an outspoken Trump ally, could sign it, claiming that the fraud allegations and “controversy” over the tallies make the popular vote untrustworthy, and that he’s merely implementing the voters’ “real” will.
This might sound too cynical, but in 2000, the GOP-controlled Florida legislature considered something similar. “They were effectively saying, ‘Hey, if it turns out Gore wins in court, we’re not going to accept that, and we’re going to assert an authority to appoint the electors directly,’ ” said Edward Foley, at Ohio State. Such a move would also invite a Fourteenth Amendment challenge, this time on behalf of Democrats. But it’s unclear if the conservative Supreme Court would intervene.
Foley, for his part, is more concerned about this kind of scenario than he is about judicial manipulation. “Judges are fact based and evidence based,” he said. “We know that Justice Clarence Thomas is a very different person than Justice Sonia Sotomayor, but I do think that with most election results they would agree as to what the answer was.” But he worries that politicians might refuse to accept the Court’s decision. “The judicial process is going to be slower than the Twitter process,” Foley told me. “If the Twitter process forces or causes politicians to dig in, then can a unanimous judiciary unstick the politicians?”
The Twelfth Amendment of the Constitution gives Congress final say over who becomes president. In some instances, the procedures for how Congress handles election disputes are clear. If there are three or more candidates and nobody wins a majority of electors, for example, the House decides who wins. But if it’s a two-way race where both candidates claim an Electoral College majority, Foley said, it’s unclear which chamber has the last word.
What would happen next is anyone’s guess. But it wouldn’t be pretty. “I think you could have a long, drawn-out crisis in which our institutions lose credibility,” Levitsky said. Even if Trump were eventually forced out, “we’ll be left with a situation where maybe 30, 35 percent of our population believes the election was rigged.”
It’s in this kind of crisis that Michael Cohen’s fears are most likely to be realized. “I could imagine some rioting, some civil violence,” said John Carey, a political scientist at Dartmouth who studies comparative democracy and who cofounded Bright Line Watch, which monitors the health of American democracy. “We just can’t imagine all the possibilities.”
Hopefully, we won’t have to. Trump may lose decisively, rendering his claims of foul play empty. He may win. Or he may lose a tight race and cry foul, but still ultimately accept defeat. In the aftermath of the midterms, for example, Trump groused about fraud without seriously contesting the outcome.
Trump, of course, wasn’t on the ballot in 2018. Losing in 2020 would be far more personal. But even if Trump refused to concede, it doesn’t mean he’d manage to remain in office. John Roberts has worried publicly about the credibility of the Supreme Court. It seems unlikely that he would “save” Trump from a less-than-ambiguous electoral defeat. Democratic governors in Pennsylvania, Michigan, and Wisconsin form a formidable roadblock against local Republican power grabs. Faced with incontrovertible evidence that Trump lost—and no plausible pathway to mess with the outcome—Mitch McConnell, Kevin McCarthy, and Mike Pence would probably tell Trump to pack his bags.
And if Trump still refused to go?
“I’m not sure which branch it would be, but it must be the case that somebody would be responsible for taking one elbow and somebody would be responsible for taking the other elbow,” Carey said. “I can imagine the feet going kind of crazy. But I like to think that it would be without too much damage to anyone.”
https://washingtonmonthly.com/magaz...could-lose-the-election-and-remain-president/
The Reichstag Fire 1933
