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 Trumpโs former fixer, floated a nightmarish possibility.
โGiven my experience working for Mr. Trump,โ Cohen said, โI fear that if he loses in 2020, that there will never be a peaceful transition of power.โ
Cohenโs comments may seem hyperbolic, but they are worth taking seriously. In the aftermath of 2018, Trump told reporters, โRepublicans donโt win, and thatโs because of potentially illegal votes.โ In a 2016 presidential debate, Trump refused to say whether he would accept defeat. โIโll keep you in suspense,โ he declared. Since that election, Trump has routinely said that his popular vote defeat was the product of โmillions and millionsโ 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? Itโs unlikely. For starters, successful autocrats rarely lose elections. โThey take steps to rig it well in advance,โ 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. Americaโs 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 Venezuelaโs Nicholรกs Maduro, hang on. โI canโt imagine the military accepting an effort to turn them into a partisan arm of the executive,โ 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 electionโbreaking American democracy in the process.
โI 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,โ said Joseph Fishkin, a law professor at the University of Texas who studies elections.
Letโs assume that Fishkin is right. Hereโs 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 doesnโt 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 Partyโs growing impatience with democratic norms, experts told me the party might challenge even a clear defeat. โI am worried now, given the reaction to 2018, that you could get a dispute over a five-digit number,โ 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, โโโCloseโโas Trump supporters define it.โ
However you construe the word, a close election is well within the realm of possibility. In 2016, Trump won his three pivotal statesโPennsylvania, Michigan, and Wisconsinโby five-digit numbers. Indeed, most of the countryโs twenty-first-century elections have hinged on a few states with narrow margins.
โ[2020] will probably be a nail-biter election where the polls are mixed or indeterminate, where itโs really not clear who is going to win,โ said Levitsky. โIf itโs close, just as Trump kind of did in 2018, Trump could basically claim fraud. And we donโt really have mechanisms to deal with that.โ
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, itโs a narrow victoryโ279 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. โWithout PHONY voters, I really won!โ he tweets. โThis is FRAUD!โ Needless to say, the president does not call to congratulate his opponent. At an afternoon press conference, Trumpโs press secretary announces he will not concede.
What happens next?
โIn the best-case scenario, key Republicans would either talk him down or defect from Trump and say, โHeโs wrong,โโโ Levitsky said. Most of the academics I spoke with also thought that this was likely. โIโm just having trouble wrapping my head around even this polarized and often radicalized Republican Party going along with that,โ said Mickey. โThis is kind of the limit condition of scenarios and surprise.โ
But they acknowledged that defections were far from guaranteed. โTrump is still far and away the most popular Republican,โ Levitsky said. โIf Sean Hannity is claiming fraud on television and Rush Limbaugh is claiming fraud and Mitch McConnell is not willing to stand up and say, โNo, there was no fraud,โ then we could have a real crisis.โ
Unfortunately, thatโs exactly what takes place. After forty-eight hours of silence, the Senate majority leader issues a terse press release in which he says he โrecognizes the presidentโs serious concernsโ about the electionโs integrity. Some GOP representatives do break ranks and call for Trump to concede (Iโm looking at you, Mitt Romney), but most stay silent or back the presidentโs claims. In a monumental act of gaslighting, Lindsey Graham tells reporters that Democrats are the ones undermining democracy. โThey are afraid of a thorough investigation into the fairness of this election,โ he declares. โTheyโll stop at nothing to get this president out of office.โ
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 โirregularitiesโ and ask that judges toss out their results. โI 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,โ Tushnet said. Victory for Trump would โmean throwing out the ballots and saying that when those are thrown out, Trump gets the stateโs electoral votes.โ 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, โin some ways that we canโt really anticipate now but that lawyers will come up with when it matters.โ
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 Courtโs Republican-appointed majority shut down the Florida recount, giving the 2000 election to George W. Bush, it did so by reading the Fourteenth Amendmentโs 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.
โThe justices, along with everybody else, seemed to view disputed facts through the lens of the place where they have been ideologically,โ said Rick Hasen, an election law expert at the University of California Irvine School of Law.
Still, itโs one thing for the courts to interfere in an election with a three-digit margin. Itโs 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, thereโs 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 โorchestrated political hitโ designed to function as โrevenge on behalf of the Clintons,โ fueled by โmillions of dollars in money from outside left-wing opposition groups.โ He obliquely warned, โWhat goes around comes around.โ
4. Alternatively, Republicans play extreme constitutional hardball.
The courts arenโt 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 investigationโas he did in the aftermath of the stateโs 2018 Senate race, when it wasnโt 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 Trumpโs 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 stateโs electors. Governor Ron DeSantis, an outspoken Trump ally, could sign it, claiming that the fraud allegations and โcontroversyโ over the tallies make the popular vote untrustworthy, and that heโs merely implementing the votersโ โrealโ will.
This might sound too cynical, but in 2000, the GOP-controlled Florida legislature considered something similar. โThey were effectively saying, โHey, if it turns out Gore wins in court, weโre not going to accept that, and weโre going to assert an authority to appoint the electors directly,โโโ said Edward Foley, at Ohio State. Such a move would also invite a Fourteenth Amendment challenge, this time on behalf of Democrats. But itโs 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. โJudges are fact based and evidence based,โ he said. โWe 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.โ But he worries that politicians might refuse to accept the Courtโs decision. โThe judicial process is going to be slower than the Twitter process,โ Foley told me. โIf the Twitter process forces or causes politicians to dig in, then can a unanimous judiciary unstick the politicians?โ
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 itโs a two-way race where both candidates claim an Electoral College majority, Foley said, itโs unclear which chamber has the last word.
What would happen next is anyoneโs guess. But it wouldnโt be pretty. โI think you could have a long, drawn-out crisis in which our institutions lose credibility,โ Levitsky said. Even if Trump were eventually forced out, โweโll be left with a situation where maybe 30, 35 percent of our population believes the election was rigged.โ
Itโs in this kind of crisis that Michael Cohenโs fears are most likely to be realized. โI could imagine some rioting, some civil violence,โ 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. โWe just canโt imagine all the possibilities.โ
Hopefully, we wonโt 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, wasnโt on the ballot in 2018. Losing in 2020 would be far more personal. But even if Trump refused to concede, it doesnโt mean heโd manage to remain in office. John Roberts has worried publicly about the credibility of the Supreme Court. It seems unlikely that he would โsaveโ 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 lostโand no plausible pathway to mess with the outcomeโMitch McConnell, Kevin McCarthy, and Mike Pence would probably tell Trump to pack his bags.
And if Trump still refused to go?
โIโm 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,โ Carey said. โI can imagine the feet going kind of crazy. But I like to think that it would be without too much damage to anyone.โ
https://washingtonmonthly.com/magaz...could-lose-the-election-and-remain-president/
The Reichstag Fire 1933
Well done for speaking up. It's never fun to talk about this stuff but some of the goldfish bowls are so small, everyone needs to hear different things imo.
The crooks are working on normalizing the fraud that's going to take place. And their modus operandi is to make up scenarios and follow up on them, like the friggin lockstep.
