By Andrea Park
In the weeks leading up to Election Day on Nov. 3, President Donald Trump was repeatedly given the opportunity to commit on the record to accepting the results of the election and upholding the core democratic practice of a peaceful transfer of power. He refused every time.
Instead, Trump used the final weeks and months of his re-election campaign to sow doubt and mistrust in the accuracy of an election with record-breaking numbers of mail-in and absentee ballots. He egged on his supporters and Republican lawmakers as they do everything in their power to limit Americans' constitutional right to vote, whether through legislation or brute force. And, just before Election Day, he threatened to "[go] in with our lawyers" as soon as the polls closed to contest ballot-counting practices in major battleground states. (Remember: It was always highly, highly unlikely that we would know for sure the winner of the election by the end of Election Day. Reset your expectations, and spread the word!)
As a result, political scientists, election experts, and all Americans concerned about the longevity of our democracy are now forced to examine the very real possibility that Trump could refuse to concede the election even if Joe Biden is the winner in both popular and electoral votes.
Before we get into what, exactly, that would look like, a few key facts to set the record straight: There is zero evidence that more voting by mail means more voter fraud. Absentee and mail-in ballots postmarked on or before Election Day are regularly received and counted for several days afterwards; extensions instated this year to accommodate USPS slowdowns are neither unusual nor illegal. And, of course, far more troubling than the estimated 0.0003 to 0.0025 percent incident rate of voter fraud that occurs in each U.S. election is the president's repeated attempts to curtail millions of Americans' perfectly legal right to vote.
Now that that's cleared up, let's dive into what would happen if Trump decides to take his rhetoric even further and refuses to accept the results of the election. You might want to buckle up for this one.
What has Trump said about accepting election results?
Basically, that he won't do so if they don't show an outright win for him. During a September press briefing, when asked whether he would accept the results of the election, per Axios, Trump replied, "We're going to have to see what happens, you know that. I've been complaining very strongly about the ballots, and the ballots are a disaster."
When pushed to, at the very least, commit to a peaceful transfer of power, he replied with more deflection: "Get rid of the ballots and you'll have a very peaceful—there won't be a transfer, frankly. There will be a continuation. The ballots are out of control. You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else."
More recently, as several states extended the deadlines by which mail-in ballots could still be received, citing overwhelming numbers of mailed ballots and USPS slowdowns (though all ballots still had to be postmarked on or before Election Day), Trump continuously reiterated his belief that "the election should end on November 3rd," as he did in an Oct. 30 tweet, even if that means letting tens of thousands of legitimately cast ballots go uncounted.
And even as Biden pulled ahead in major swing states like Pennsylvania and Georgia in the days after Election Day, all but erasing Trump's possible pathways to victory, CNN reported on Nov. 6 that the president has neither prepared a concession speech nor indicated to his supporters and inner circle that he intends to concede the election should it be called in Biden's favor.
"This is no longer about any single election. This is about the integrity of our entire election process," Trump said in a written statement on Nov. 6, per CNN. "We will pursue this process through every aspect of the law to guarantee the American people have confidence in our government. I will never give up fighting for you and our nation."
Trump has also repeatedly implied that the only way he would accept a Biden win is through a Supreme Court battle, which is why he moved so quickly in filling Ruth Bader Ginsburg's seat with an ultra-conservative judge. "I think this will end up in the Supreme Court. And I think it's very important that we have nine justices," he told reporters ahead of Amy Coney Barrett's appointment to the court, The New York Times reported in September.
How is Trump challenging the results of the election?
A refusal to accept a Biden victory could go several different ways (four of which are played out by the Transition Integrity project here). For one, if Election Day returns were to show Trump with even the slightest of leads, there was always the possibility that he might try to declare a premature victory well before all of the estimated 90 million mailed ballots have been counted. Sources told Axios that Trump has been plotting to do so, but the president denied these reports on Nov. 1.
Of course, despite these denials, he did just that in the wee hours of Nov. 4, just as mail-in ballot numbers were starting to shift what appeared to be his pathway to victory in the Electoral College over to Biden. In a speech late after polls had closed nationwide, Trump labeled the legitimate and very legal vote-counting process as "fraud" and claimed he "did win" the election, per CNN, despite the fact that millions of votes were still uncounted at that time. The backlash was swift, with several broadcasters cutting away from the president to fact-check his wildly inaccurate claims, and with politicians from both sides of the aisle criticizing the remarks.
Another scenario saw Biden narrowly edging out Trump in both the popular and electoral votes after all ballots have been tabulated, but Trump refusing to accept these results, citing (false) claims of voter fraud and illegally counted votes.
In a move that will surprise absolutely no one, this, too, has already happened. Along with prematurely declaring victory, Trump has also spent days furiously tweeting, sending out statements, and making public addresses to attack—say it with me—the perfectly legal and legitimate process of counting mail ballots postmarked on or before Election Day, as those ballots have in many cases shifted a greater share of votes to Biden, as predicted. Twitter has flagged and hidden several of the misleading tweets, and some news networks have fully cut away from Trump's addresses to immediately fact-check his baseless claims of fraud.
And, of course, Trump and his legal team are also already pursuing multiple lawsuits in several states in an attempt to stop the perfectly legal vote-counting processes, claim fraud, and challenge already-enacted laws that allow for valid votes to continue being counted after Election Day. So far, several of the suits have already been dismissed, and most, if not all, of the remaining cases contain no substantial evidence of fraud, according to ABC News. Should any of these cases end up reaching the Supreme Court, it's unclear whether the conservative-leaning justices would rule in favor of Republicans or in favor of the legal democratic process of vote-counting, but as it stands, without evidence to back up Trump's claims, it's unlikely any of the current cases could make it that far.
However it looks, a sitting president's refusal to accept the legitimate results of the election would pose a massive challenge to the foundation of our democracy, and to anyone attempting to uphold that foundation—precisely because the challenger is, indeed, the sitting president. "You have just a tremendous differential between the president of the United States of America, who has just awesome coercive powers at his disposal, and a challenger who really has no power whatsoever in our system...Joe Biden can call a press conference; Donald Trump could call on the 82nd Airborne," Rosa Brooks, co-founder of the Transition Integrity Project, explained to FiveThirtyEight.
Experts have predicted that, in a worst-case scenario, Trump's refusal to accept the results would kickstart a Constitutional crisis, as well as widespread unrest and potentially violent partisan clashes. According to the Transition Integrity Project's report, "The potential for violent conflict is high, particularly since Trump encourages his supporters to take up arms."
So, how would a refusal to concede play out?
Fortunately, merely tweeting about the election being "rigged" isn't enough to overturn the results. "Just charging that an election is fraudulent is not the way elections get overturned," Benjamin Ginsberg, who served as national counsel for the 2000 Bush campaign during the Bush v. Gore recount fight, told the Boston Globe. "To successfully do that, a candidate would actually have to prove on a precinct-by-precinct, ballot-by-ballot basis that there are enough fraudulent ballots to change the results of the election. Bombastic rhetoric will have no force in the election contest litigation that would have to be filed to throw out the results."
Beyond simply taking vote counts to the courts, another way that Trump and his allies might try to steamroll over a Biden victory would be for Republican legislatures to appoint Trump-supporting electors to the Electoral College, even if their states went blue in the popular vote. While states have allowed the popular vote to decide the appointment of electors for most of the nation's history, The Atlantic reports that state legislatures could potentially choose to take that power back for themselves, since the Constitution leaves the appointment of electors totally in the hands of each state.
In such a case, states with Republican legislatures but Democratic governors—including crucial swing states Pennsylvania, Wisconsin, Michigan, and North Carolina—might end up appointing two separate slates of electors, according to a study by election scholar Edward B. Foley. These states would then cast double their allotted votes when the Electoral College convenes on Dec. 14, and when the president of the Senate, Vice President Mike Pence, goes to count the votes, he would be tasked with unraveling what his Constitutional duty to tally the Electoral College's votes means in this situation. If Pence chooses to throw out the doubled-up votes, it's possible that neither candidate would then be able to reach the necessary 270 electoral votes to win the presidency. In that case, the decision would go to the House of Representatives, with one vote per state, resulting in a slight majority for Trump according to currently drawn partisan lines.
Alternatively, according to The Atlantic, Speaker of the House Nancy Pelosi could hypothetically keep members of the House from entering the chamber to witness Pence's vote count as required by law; if she then stalled long enough, she could potentially assert her right to assume the presidency according to the line of succession.
Furthermore, these aren't necessarily standalone possibilities. Per Foley and The Atlantic, Biden could win the election, Pence could push through the extra Electoral College votes for Trump, and Pelosi could assert her own claim to the office to block Pence's order all at once, resulting in three seemingly legitimate (at least in the eyes of the Constitution) POTUS claims. Hence, a Constitutional crisis.
What's the precedent for this?
States have actually sent dueling slates of electors to the Electoral College before. After the election of 1876, Congress was unable to decide which votes were valid. The partisan battle was only resolved when a deal was struck that put Rutherford B. Hayes in power in return for an end to Reconstruction, per Vice News.
As for a court battle, look no further than the 2000 election, when the winner of the election wasn't confirmed until mid-December, after the Supreme Court handed down a win for George W. Bush, after which Al Gore promptly conceded "for the sake of our unity as a people and the strength of our democracy."
At the time, Florida was actually planning on kickstarting the above scenario by appointing a competing set of electors to vote for Bush, per FiveThirtyEight. They didn't have to, however, since the SCOTUS decision stopped the state's manual recount, claiming that the Florida Supreme Court had overstepped in ordering the recount, and deciding that there wasn't time to manually recount every vote in time for the national deadline of Dec. 8, at which time all states must be done counting their popular votes.
"The biggest lesson of 2000 is that our election systems are not sufficiently robust and reliable to handle results that are within the margin of error, and if anything, that's only become more true since then. Any election that's within the margin of error is going to be a nightmare in terms of the health of the nation," Jonathan Adler, a professor at Case Western Reserve University, told Vice News.
Andrea Park is a Chicago-based writer and reporter with a near-encyclopedic knowledge of the extended Kardashian-Jenner kingdom, early 2000s rom-coms and celebrity book club selections. She graduated from the Columbia School of Journalism in 2017 and has also written for W, Brides, Glamour, Women's Health, People and more.
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