The Atlantic has reported this week that operatives within the Trump campaign, and Republican allies across the country, are gearing up to question the outcome of the November 3rd election. But President Trump himself has made no secret of his position on conceding to Joe Biden in the case that the Democrat wins an electoral college majority: Trump will not concede.
In fact, just this week, when a reporter asked if the President would commit to a peaceful transfer of power after the election, Trump refused. “We’re going to have to see what happens,” he said, echoing similar comments that he made in a July interview with journalist Chris Wallace. At that time, he told the Fox News reporter “I have to see. No, I’m not going to just say yes. I’m not going to say no. I didn’t last time either.”
On Wednesday, however, Trump expounded on the comment, adding “You know that I’ve been complaining very strongly about the ballots. And the ballots are a disaster,” referring to the rise of mail-in voting which he has oft claimed, with no evidence, would cause the “most fraudulent election in history.” Ultimately, Trump stated “there won’t be a transfer, frankly. There will be a continuation.”
See You In Court
Trump’s unwillingness to accept an election’s outcome is nothing new. In 2016, he became president by winning an electoral college majority, even though his rival Hillary Clinton won the popular majority by nearly 3 million votes. But Trump refused to accept even that outcome, baselessly claiming that 3 million undocumented immigrants had illegally cast fraudulent votes for Clinton.
And on Tuesday, Trump seemed to suggest that he already plans to take the election results to the Supreme Court. Discussing the need to fill the Supreme Court seat recently vacated by Justice Ruth Bader Ginsburg, Trump said the following to reporters:
We need nine justices. You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam, it’s a hoax, everybody knows that. And the Democrats know it better than anybody else. So you’re going to need nine justices up there, I think it’s going to be very important. Because what they’re doing is a hoax, with the ballots.
There is little between-the-lines reading here. Trump has made clear his plan to appeal any election result that does not make him the undisputed victor, on the grounds of mail-in voter fraud.
Still, the story in The Atlantic says that Trump’s team has already taken action to delegitimize the results of the election. The report claims that, according to local and national Republican Party sources, “the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors” in GOP-leaning battleground states.
To understand the potential tactic, one must understand the conventions of the electoral college. According to the Constitution, a state must apportion its electoral votes “in such Manner as the Legislature thereof may direct.” In other words, the legislature of each state can decide how its electors cast their votes for president. Since the 19th century, however, every state has allowed that decision to be made by individual voters. In all but two states, the winner of the popular vote receives all of the state’s electoral votes. (The two exceptions are Maine and Nebraska, which apportion electoral votes based on percentage of the popular vote). But the right of the people to choose their presidential electors is not a guarantee.
In Bush v. Gore, the 2001 case that ultimately allowed the Supreme Court to pick the winner of the presidential election, the Court affirmed that a state “can take back the power to appoint electors.” That’s to say, in a situation where the popular vote outcome is unclear in a state, perhaps because the legitimacy of mail-in ballots is in question, the state legislature can make its own decision as to how electors should cast their votes.
This may seem like a doomsday conspiracy, but it’s already at play. Most experts agree that the state of Pennsylvania will play an outsize role in determining this year’s election. In the Atlantic story, the chairman of the Pennsylvania Republican Party says on the record that he has discussed with the Trump campaign the possibility of ignoring the popular vote and installing legislature-appointed electors loyal to Trump. “It is one of the available legal options set forth in the Constitution,” he says.
Such a maneuver is most likely to take place if the election is close. If Pennsylvania’s results seem to skew towards Trump on Election Night, but slowly teeter in the opposite direction as the state tabulates mail-in ballots, the Trump Campaign will likely insist that the entire system is fraudulent. Since the ballots cannot be trusted, this logic follows, the GOP-controlled state legislature must fulfil its Constitutional duty and appoint electors on its own.
Trump’s refusal this week to commit to a peaceful transfer of power caused at least a handful of Republicans to respond. Senators Marco Rubio and Mitt Romney both insisted that we ought to accept the fair and legitimate outcome of the election, though they fell short of decrying Trump by name.
Still, asked on Thursday about whether he would accept a Supreme Court decision that hands the presidency to Joe Biden, Trump replied “Oh, that I agree with,” a rare indication that there is a scenario in which he accepts defeat. (Of course, it is unlikely that Trump will agree to quietly disappear from public life. In the event that he does leave office, he is likely to continue to claim that he was robbed by a rigged election).
In the meantime, Senator Bernie Sanders is already warning the public to prep for a “nightmare scenario.” In a Monday interview with The New York Times, the democratic-socialist and former presidential hopeful made plain his belief that Trump will refuse to vacate the Oval Office, regardless of the election’s outcome. He has called upon states to expedite the counting of absentee ballots, and to even begin tallying before Election Day, so that an accurate count does not take weeks. The longer the period between Election Night results and final absentee results, Sanders argues, the more time Trump will have to declare premature victory and refuse any alternate outcome.
“If you are starting from zero on Election Night, and you’ve got hundreds of thousands or millions of absentee ballots, how long is that going to take you to count?” Sanders poses. “It will take a very long time. And that will allow the fomenting of conspiracy theories and so-called fraud and everything else.”