One hundred and forty four years ago, on August 1, Colorado was admitted as the 38th state in the Union. Less than 100 days later, voters across America went to the polls to choose the successor to Ulysses S. Grant in a contest between the Republican governor of Ohio, Rutherford B. Hayes and the Democratic governor of New York, Samuel J. Tilden.
Voter turnout was the highest in US history — a whopping 82% — but not in Colorado. Instead, with neither the money nor infrastructure to hold a presidential election, Colorado’s newly formed legislature designated the state’s three electors for Hayes. It is well known that according to the US Constitution, it is the members of the Electoral College who ultimately select the President and Vice President of the United States. It is not so well-known that the Constitution also gives state legislatures the authority to choose how electors themselves are designated, and there is no obligation to do so by popular vote.
Back in 1876, Tilden won an outright majority of the national popular vote. But, after controversies surrounding the electors from South Carolina, Louisiana, Florida and Oregon, Hayes emerged victorious from the electoral college, winning by a single vote, 185-184.
It was this electoral result that got me thinking. What if Trump were to exploit procedural ambiguities and use his bully pulpit to hang on to power? With a slew of recent polls in the United States suggesting his re-election prospects are imperiled, and knowing what we know of his character, it’s a reasonable question to ask. He is a man so obviously driven by greed and pathological narcissism and so unconstrained by law, decency, or the norms of our democracy, that he could try anything to remain in the White House.
And so, with 1876 in mind, I sketched out one possible nightmare scenario…
The Set Up
Our story is already in train. It begins with Trump’s baseless attacks on postal ballots. The technical administration of American elections is decentralised — organised by states and counties across the country. Nominally, Trump and his political sycophants are trying to stop state and local officials from making voting-by-mail more accessible during a pandemic. But, in fact, the real aim is simply to push into the public sphere the false claims that mail-in ballots are prone to fraud. Each court battle or legislative fight gives them the opportunity to keep sowing those doubts, ready to be harvested later.
At the same time, with public polls stubbornly showing Biden maintaining a significant lead, Trump privately rages but publicly claims the polls are fake news meant to torpedo his overwhelming support. Relying, as usual, on his tactic of projection, he repeatedly claims that Biden and the Democrats are going to play dirty, that they will try to steal the election and rig the vote.
November 3, 2020
Fast forward to election day. Unlike 2016, when Trump and Clinton were blocks apart in Manhattan, this time Trump spends the day at Mar a Lago. After the morning photo op, when he and Melania cast their ballots, he tells reporters that he’s going to spend the day getting ready for a huge victory rally and mentions that there are thousands of Trump campaign volunteers in Pennsylvania and Wisconsin and Arizona and right here in Florida who are watching closely to make sure that Biden and the Democrats don’t get away with anything.
That evening, as polling closes and the first returns from eastern states start coming in, Trump’s campaign sees that the numbers portend a bad night. He’s ahead in Ohio but not by nearly enough. Pennsylvania and Michigan are tied, but they know that tallies from urban areas always come in late.
In addition, while there has not been a nationwide expansion of postal voting, many states have made it easier to request absentee ballots and millions more early votes and mail-in ballots have been submitted than in previous elections. Most states have not been able to procure new machines to count these ballots quickly, and officials have warned that it could take days for final results to be available.
The Trump campaign knows, as the scholars Charles Stewart and Ed Foley have documented, that there is a growing “blue shift” phenomenon, whereby the votes that are counted last (the provisional ballots, same-day registration, and postal votes) tend to tilt toward Democrats. This means that if the Republicans don’t have a convincing margin on election night in key states, then those states are likely lost.
Before midnight, they deliver the news to Trump: they think he will lose Wisconsin, Michigan, Pennsylvania. Florida too, though that’s closer. Arizona is too close to call and even Georgia could go blue. It’s not a blow-out; Trump has come close in many swing states, but he has lost the election.
“It’s time to talk to our people,” Trump says. Thirty minutes later, he takes the stage at an outdoor rally in Florida, in front of thousands of cheering supporters. The teleprompter has been loaded with a short concession speech — his wife and three of his children stand behind him on stage. He approaches the microphone.
But he doesn’t read the speech. “Today was a very bad day for real America and for real Americans!” he adlibs, “because we won this election. But right now, just as I warned, just like we all knew would happen, Joe Biden and the Democrats are printing millions of fake ballots, they are helping illegal aliens cast fake votes by mail, and they are trying to steal your White House!”
November 4-30, 2020
In the days that follow Trump’s defiant refusal to concede, his supporters protest in swing states, and votes continue to be counted. Enough states are working on final tabulations that neither Biden nor Trump has the requisite 270 electoral votes according to The New York Times, though it remains clear that Biden has prevailed.
Trump holds Ohio. He wins North Carolina, narrowly. He has lost Wisconsin by less than 1%. He has lost Florida by more, but there are already Trump supporters protesting — without basis — that non-citizen immigrants have cast ballots in several counties. Pennsylvania and Arizona are slow to count, but as the votes come in, it becomes increasingly clear that Trump has lost both.
Trump holds twice daily White House press conferences, detailing his allegations of fraud. “Look on election night for a while I was ahead in all these states, but then they magically found millions of ballots and now they say I lost? That’s criminal. I call on the Governors to arrest the fraudsters, and I call on the state legislatures to disregard these faulty tabulations and respect the will of the people.”
Republicans in the Senate and the House echo Trump’s claims and begin to say that the election has been “fishy”. In fact, they claim, some of their members who were deemed to have lost on election day may have been cheated just like Trump.
On December 8, state legislatures across the country convene to formally designate the electors who will represent them in the electoral college. In Harrisburg, Pennsylvania, despite Trump’s constant cries of fraud, the Republican-held legislature appoints the slate of 20 electors pledged to Joe Biden, consistent with the final outcome certified by the Secretary of State.
A week earlier, however, in both Phoenix and Tallahassee, the Trump-friendly Republican governors had called special sessions to petition for extraordinary measures “to protect the will of the people”. Despite final election results showing Biden winning in both Arizona and Florida, these Republican-controlled legislatures voted to invoke their powers under Article II of the U.S. Constitution to change the manner by which electors are designated (on the grounds that the election was marred by irregularities) and gave themselves power to appoint them under state law (and the governors in both states signed the changes into law immediately). Reconvening on December 8, both legislatures advance the slate of electors pledged to Trump.
Democrats cry foul, but conservative constitutional scholars point out that no matter what state or federal law might suggest, the Constitution clearly accords the power to select the manner of designating electors to state legislatures — after all, Colorado did it without the participation of any voters at all in 1876.
Meanwhile, in Wisconsin, where Biden’s margin is smallest, the Republican-controlled legislature also moves to change the manner of designating electors, and to approve those pledged to Trump. However, the Democratic Governor, invoking Wisconsin state law, signs and affixes the state seal to the slate of electors for Joe Biden as certified by the state elections commission. The Governor then joins with the Secretary of State and the Democratic minority in the legislature at a press conference to announce the proper designation of electors for Biden. But the Republican state legislature holds a dueling press conference in which they assert their right under the Constitution to invalidate the commission’s role and select their own electors. Trump tweets “thank you Wisconsin! don’t let your governor rob YOUR PRESIDENT!”
Donald Trump immediately declares victory — thanking the millions of “real Americans” who voted for him. Joe Biden’s campaign continues to file lawsuits challenging the actions in Wisconsin, Arizona, and Florida. There are two competing realities — the vote tallies clearly show that Biden has won the election — with Wisconsin, Florida, and Arizona he has 319 electoral votes to Trump’s 219. But Trump claims that the real tally is 270 to 268, and that when the Congress counts the electoral votes, he will emerge victorious.
January 6, 2021
While multiple lawsuits continue to work their way through state and federal courts, the Senate and House — sworn in just days earlier — convene in Washington. Democrats have failed to take back the Senate, although they have narrowed the gap — the Senate is now 52-48, including the two Independents who caucus with Democrats.
The Electoral Count Act—first passed in the wake of that same contentious election of 1876—specifies rules for the counting of electoral votes, and for how to handle objections. Congress convenes in a joint session on January 6, after the new Congress has been installed but before inauguration, and state-by-state, records the tally. Objections are adjudicated in separate votes of the House and Senate.
When Congress convenes to record the count, objections are made to the electors from Arizona and Florida, but Republicans argue that because the state law for designating electors was duly changed more than 6 days before the Electoral College met, the electors’ votes are legitimate under section 5 of the Electoral Count Act.
So everything hangs on Wisconsin, and, in essence, a contest between the Constitution and the Electoral Count Act. The former accords state legislatures the power to determine how electors are chosen. The latter specifies that when there are two returns from a State, and when the House and Senate cannot agree on which is legitimate, then the return that has been certified by the executive (governor) of that State should be counted.
What happens then? As new lawsuits are filed and expedited to the Supreme Court, injunctions prohibit the counting of Wisconsin’s electoral votes. Neither Trump nor Biden has the 270 recorded electoral votes.
According to the Constitution, if no candidate reaches a majority in the Electoral College, then the election of the President falls to the House of Representatives. Democrats have held their majority in the House — more than 20 seats. But there’s a catch: according to the Constitution, in selecting the President, the House votes not by member, but rather by state, with each state delegation receiving one vote. And, just as in 2020, while Democrats hold a majority in the new Congress in 2021, a majority of the state delegations are Republican — 26 states have more Republican members than Democrats, and in Pennsylvania, there is a tie.
Speaker Pelosi delays calling the House to order, trying to give more time to the Supreme Court to resolve the issues. But Minority Leader Kevin McCarthy goes to the House floor with all Republican Members and begins announcing the votes for Trump of each state where Republicans hold a majority of the seats. When Liz Cheney, Wyoming’s sole House Member, announces Wyoming’s support for Trump, McCarthy declares that the House has spoken and 26 States have voted for Donald J. Trump.
Trump tweets: “George W. Bush didn’t like my first inaugural speech—maybe I won’t invite him to this one! See you January 20!”
So: could it happen? It is pretty unlikely, even nigh impossible. But I sketch it out to underscore the perilous moment that we find ourselves in. Law can be an unreliable guide even when facts are not contested. And the Electoral Count Act is a largely untested law (it’s last major moment in the spotlight was during the contested 2000 election and the Bush v Gore Supreme Court decision). Meanwhile, President Trump has repeatedly shown that he is willing to lie — about the size of his inauguration crowds, about his poll numbers, about voter suppression, about postal voting — in an attempt to undermine public confidence in observable facts.
So my scenario invites two questions: would Trump try to refuse to accept the results of an election he’s lost? And could he be successful?
On the second question, the President has shown a surprisingly durable ability to enlist accomplices and maintain support of Republican elected officials who serve as accessories to his many misdeeds, but the warping of election outcomes through law, though technically conceivable — as I attempted to map out — would require a new level of complicity.
For starters, it would require a pliable Supreme Court — which, in recent weeks, has shown that it is willing to take decisions at odds with the President. Trump tweeted last month:
It seems like a good thing that Trump doesn’t think that even the Court’s conservative members are automatically on his side. Senior leaders and former military chiefs have also made statements that ought to give Trump pause in thinking that he could enlist them in an illegitimate effort to hold on to power.
And even though Trump’s past actions mean that we must take the possibility of his bad behaviour seriously at every turn — the answer to the first question is probably also no.
If he loses, he will probably claim that the election was rigged against him and do his utmost to further undermine confidence in our democracy. But my hunch is that he will go. After all, he doesn’t seem to like the job, he will doubtless relish the idea of mobilising his base against a Biden presidency and, as a human being, he is demonstrably consumed by insecurity and cowardice. It’s a potent combination.
Perhaps, if Biden wins, the departing President will take inspiration from Samuel Tilden, who did not fight the result of the 1876 election (despite the fact that he won an outright majority of the popular vote and remains the only presidential candidate in to have done so and not been inaugurated). When Tilden died, 10 years later, he had his gravestone engraved with the words “I Still Trust in The People”. Trump could use it for a new TV show in 2021.