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.
December, 2020
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.
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Subscribe‘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.’
So, not exactly an impartial commentary. Trump won because he did at least offer or promise to do something about the endless wars, immigration (79% of Americans want less immigration), and the endless transfer of jobs to China and Mexico etc. I guess the media class will never understand this, which is why the media class is now so despised by normal, decent people.
It is despised by uneducated people who are easy prey for propagandists offering scapegoats and simple solutions. The average IQ is 100 so they are probably quite normal.
I am a long-standing British conservative voter distinctly right of centre and as concerned with the growing influence of Marxist dogmas as anyone here on Unherd. Whether in the form of Black Lives Matter, the Corbyn/Mcdonnell die-hard Communistas currently being rooted out by Keir Starmer, or the increasingly partisan left wing media I am as concerned as anyone for the influence that they may have on the future of our country and the world.
However. If we only criticise left wing leaders and commentators and either support or stay silent whenever a conservative such as Donald Trump does or says something that is plainly idiotic or self-serving we are guilty of exactly the same blind partisanship of which we accuse the left.
‘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.’
Some may see this quote as an example of left wing bias in the article and therefore not worth reading. If we take this path of blind obedience we are no better than those we spend so much time criticising. I don’t find any contradiction in agreeing not only with a number of the policies that Mr Trump is pursuing but also with the author’s negative description of him as an individual. The author would appear to be making a very interesting point about how far current US politics has strayed from the Constitution and how the US legal system can be weaponised by interested parties on both sides to the detriment of democracy. As such I read it as a call to action to the American people to recognise the fragility of their democratic rights and to pressurise their politicians to focus on the intentions of the Founding Fathers rather than perpetuate the endless loopholes that characterise much of US legislation.
Loads of great points. But he doesn’t argue the case for that quotation just states an opinion. I can see evidence for some of it but for example “unconstrained ……by decency?”. I suspect he means “by what I consider to be decency” but doesn’t set it out. So an interesting technical, if somewhat fanciful, “what if” comes across as a biased rant from the Guardian. I dont want to read that sort of stuff here. That’s what the rest of the MSM are for.
Trump has never been a Conservative. Trump is not a politician. Trump speaks often without considering the political side of what he is saying. Didn’t vote for him the first time. Will this time if for no other reason to drive DemocratSlaveryParty POLs, Stooges, Toadies and Apparatchiks insane. These are the danger to our Republic.
But actually both these things could be true. A man could be driven by greed and narcissism, could be unconstrained by laws and norms… but could at the same time offer policies people want. Obviously, if power is what you want, in a democracy you have to offer something that people want in order to get it! – and Trump is much less extreme than other politicians who have played this game historically.
The late John J. Reilly wrote (and in quoting this I don’t mean to imply that DT is a fascist, a term that is bandied round far too often these days to be useful – but the paragraph shows the mechanism at work):
“The fascists in the ’20s and ’30s did not come to power by promising to create a society beyond good and evil. They did it by promising people things that really were good, such as safe streets and private property and a country with a culture they could recognize. The opponents to fascism too often fell into the trap of opposing these things simply because the fascists endorsed them. This is an important point for the world’s liberals (or progressives, or whatever they call themselves locally) to keep in mind. As for the conservatives, they must beware of the company they keep.”
I don’t deny for one moment that Trump isn’t greedy and narcissistic. To the extent that I have followed him I have always thought him vulgar and unpleasant, although he was always very welcome on Oprah and all such chat shows, where he was quite entertaining.
I think the reason so many of us have developed a grudging affection for him is the way in which he annoys the media and chattering classes, as exemplified by the writer of this pointless piece.
Well, but there are (as I’m sure you’d agree) more vital priorities in politics than annoying the media and chattering classes! The question is not really whether one approves of Trumpist policies, by why modern democratic politics seems to throwing greedy and narcissistic people into positions of leadership – rather than, say, people who might advance similar or dissimilar policies from a position of probity and honesty. The increasing prominence of figures such as Trump and Johnson does suggest to me an alarming tolerance for open mendacity and openly self-serving conduct that I think is relatively new in our politics. Of course we have always had liars in politics, but if “Hypocrisy is the homage that vice renders to virtue”, the flagrancy with which today’s leaders behave suggests that the ideal of virtue has become sufficiently attenuated that they no longer feel the need to pay that homage. Wherever one stands on the political spectrum, can one deny that that is an alarming situation?
The very rare triple-negative
‘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.’
Evidence please for each of these assertions.
The author of the article thinks he’s a skilled mind-reader.
Can you give the evidence of greed. A man that gives his salary away does not look greedy.
Most of the senior politicians in the US have made themselves rich through politics – think Obama, Bernie Sanders, Chuck Schumer, Nancy Pelosi. One thing in Trump’s favour is that he can’t be bought off and is clearly not doing it for the money.
Yeah, how’s he getting on with those things?
I’m saddened to see UnHerd pushing conspiracy theories. It cheapens an otherwise excellent site.
This article marks itself as speculation about the next US election, not the previous one, so it can hardly be viewed as ‘conspiracy theory’.
Only recently Boris tried to work the British system (and succeeded, by appearing to be prepared to work the system).The one thing I find most difficult about leftist politics is the belief that established justice and political systems are inherently unfair, and should be disregarded, defunded and dismantled, despite the fact that they should be the last line of defence of the weak against the powerful, and of democracy against tyranny.
Kicking the tyres of the systems designed to prevent tyranny isn’t a bad thing in these polarised times.
Is there any evidence that this is Trumps intent? Are we to allow all unfounded accusations to be published under the banner of speculation?
The opening conjecture could just as easily be turned on its head. What if the Democrats, anticipating a close election, are trying to build a narrative that if Trump should challenge any razor thin victory, that he’s not exercising his legal right but refusing to step down and is a de facto dictator. It could easily been seen as a smear attempt to undermine the rule of law, to preempt any proper scrutiny of the election in the courts.
Of course, this is just speculation…
So am I.
Another “Orange Man Bad” piece. Nothing new, nothing remotely interesting.
How about a hit piece on Macron?
It seems remarkable to me, that as it gets clearer by the day that Obama and his minions in the DOJ, intelligence services etc, did indeed do everything in THEIR power not to accept the result of the 2016 election of Trump, we have this kind of fear mongering doing the rounds of “serious” media.
What’s the game?
A rhetorical question, in case…
Exactly. It is they who were and are the threat to democracy, not Trump.
Trump Derangement Syndrome reaches a state of severe paranoia. I suspect the authors fears won’t come to pass because Trump will win a second term comfortably. Not that it will stop the hysteria.
I agree. This article is peak TDS. One would have thought that if you were going to claim that voter fraud is virtually impossible / non existent you would have done some research first.
If the democrats don’t start putting some daylight between themselves and the excesses of the ‘progressive’ denizens of that wide land, Trump’s not going to need dirty tricks. ‘Unconstrained by law, decency or the norms of democracy’ – could apply to an awful lot of what passes for politics these days.
The DNC recently tweeted that celebrating the 4th of July at Mount Rushmore was wrong because of white supremacy, or something along those lines. If you are a patriotic American of any ethnicity, I suspect you’re going to find that kind of nonsense quite concerning. I also can’t think of a single instance in Trump’s career when he has promoted political violence (I discount the dog whistle argument) or illegally defied a court order so this whole article is utter nonsense.
Very well said!
” A slew of recent polls in the United States suggest his re-election prospects are imperiled,”
Would that be the same polls that confidently claimed he would lose the first time round?
“Will the President bow out with good grace…?”
Why? He’s going to win, and win HUGE.
The only thing that would have done for him was the economy, COVID has rode to the rescue as he can blame the collapse of the economy on it and his vote base will buy it.
Another round of Democrat tears if you please barman.
Do you not understand the polls are fixed, fake news, fake polls.
Gun ownership is one of the best predictors of voting intentions. If you are a registered gun owner you are very likely to vote Republican because once you own a gun you are very disinclined to have it taken away, especially during uncertain times. Revealed preferences are therefore better than opinion polls because polling in today’s environment is very suspect – just think the UK General Election where figures moved wildly in the weeks before the vote. The number of US gun background check applications has increased massively in recent months and is accelerating, I’m therefore going to call a Trump victory unless there are further developments such as Biden withdrawing from the debates.
A very silly article. Just for a start, postal voting is very prone to fraudulent voting. But two much more interesting questions: first, would Trump abandon his campaign if he thought he was going to lose, and how then could the GOP select a new candidate? Second, when will Biden choose his running mate? That is crucial to his campaign and possibly to America’s future
UNHERD you would do well to not publish fantastical drivel by a DemocratSlaveryParty Pol and a former Toadie of Oscumba who was the worst President (beating out the inept Carter and the corrupt FDR) for the last 70 years. It reduces your prestige and credibility by 100 fold. What is or could be a travesty is enough knot heads vote in enough states to throw the Electoral College to Groper Joe.
Obviously you are not prepared to look at the results of Trumps tenure. If you think Trump will stop at nothing to get re-elected just watch the Democrats at work.
No- ID voting doesn’t sound like a great idea for a democratic election.
Until I read this article I didn’t think there was anyone who did not know postal voting is wide open to fraud with plenty of examples, or was not aware of how the Democrats had been cheating with ballot counting in local elections.
The pandemic will still be going on November? Presumably the virus would be eradicated from Earth if Biden were to win?
For the last three and a half years almost the entire Establishment and media have tried to bring down the Presidency because the wrong sort of people voted for the wrong sort of President… and Trump refusing to go would ‘further’ undermine democracy? There is nothing left to undermine. Democracy is a convenience for those who believe they have a Right to rule, it doesn’t actually mean what it says.
But I think you are missing an important point. Not whether Trump refuses to go, but whether the deplorables refuse to let him go. The precedent to reject the election result has been set by the behaviour of the Democrats et al.
Among those deplorables are some well armed, well trained, well prepared, very determined people. Don’t count on the beleaguered police to stop them. Trump is for them their last hope, they have nothing to lose by rising up. The Democrats have made it quite clear the deplorables days are numbered, a dying group of White, male, gun-toting, Bible thumping, Red-Neck, beer swilling inbreeds.
Britain has no rednecks to speak of but it does have angry white folk but in far greater numbers than America in relative terms. British deplorables don’t have their Donald – yet. Folk such as Barr are all over British media too and they have NO IDEA of the extent of this anger..which might materialise soon In a British Trump…
Well said.
You could have gone on and said ” the beer swilling inbreeds”, also know how to shoot straight, and are very unlikely to be dissuaded.
This is precisely what the “Right to bear arms” is all about.
Anothe bandwagon report to have a go at Trump. Its just pathetic insted of looking at what he has done.I thought better of Unherd but they are just part of the leftie herd.
What has he done? Apart from greenlighting the judges the Federalist Society tells him to nominate…
As Trevor Phillips pointed out in the Channel 4 documentary “Has Political Correctness Gone Mad?”, Trump actually polled higher among Hispanic and Asian Americans than any other recent Republican candidate. I dislike him as a person, but he was clearly saying something that resonated with minorities in 2016. Don’t be too quick to write him off.
Really? Seems a bit far fetched, for all its faults the US does have a simple and clear constitution and a supreme court to uphold it.
Is Trump really going to bulldoze through all of that and get away with it?
If you’ve following the US press for the last four years you’ll know that this piece is just a variant on countless such pieces in The Atlantic, NYT, WashPo and all the rest of them. They are pathetic.
You are spot on but so many people refuse to see it.
It’s not so much that they refuse to see it. It is simply that they are unaware of it, or have not thought about it. Even when you speak to quite intelligent, successful people with good jobs etc, you realise that they know absolutely nothing about what is going on beyond their own desk, family and immediate social circle. Literally nothing, Also shocking is the extent to which they still believe the MSM.
Ironically, I often find that it is working class guys one talks to in pubs or in the general course of life who know a lot more about what is going on, and who the villains are.
Exactly.
In fact it is so blatantly obvious it must be a “wind up”.
Is there no end to this tsunami of Democrat/Biden drivel?
What’s the point of this article?
It is the establishment here (re brexit) and in the US against Trump, that started this rejection of democracy.
You may end up reaping what you sow.
TDS
TeDiouS
Come on Unherd I expect better of your journalism. This is a sad and pathetic hit piece of a non story that has being doing the rounds in the left wing media for weeks and I can’t understand why it appears here. I’m all for open discussion but this is so far of reality it does Unherd no good at all publishing such utter rubbish.
Has the writer forgotten how at this point in 2016 the polls were suggesting Hillary Clinton had a massive lead and Trump was unlikely to win a single state.
The folly there lay in looking no further than the headline figure. In US presidential election polls for that year, as in the Brexit referendum a very significant detail in the small print revealed that polling companies were having to approach around 5 Republicans / Brexit supporters for each one who agreed to participate. The figure was much lower for Democrats / Remain supporters. Many theories have been proposed to explain why this was so but nobody really knows.
What I see from US polls is the sale is happening and also polling firms are allowing massive error margins of plus or minus 7,8 or even 9 %.
This will all become irrelevant of course if the Democrats sideline Joe Biden and find a credible candidate.
The American Constitution is clear that Trump’s term of office will end on 21st January 2021 as will VP Pence’s. In the absence of a successor the president will be the speaker of the House of Representatives which will have met on 3rd January. Unlike Tilden v Hayes in 1876 when the inauguration was not until March, there will be little time for the shenanigans you are suggesting, that was one of the reasons why Gore didn’t pursue his options against G.W Bush; things had to move on. Congress has no power to intervene in the conduct of elections within states, the reforms in the 60s did not go there. If the results are bad for the GOP it is likely also that it will have lost ground in the Senate, House and at state and city level. Those republicans who have cut Trump a lot of slack over the last few years will be looking more to the future of their party and will dump Trump
An interesting piece, and, like what the U.K. went through during 2017 and 18 shows the limitations of existing constitutional principles and rules against someone who was committed to abusing them (although I am not convinced Trump is so committed).
But it seems odd, considering the current BLM protests, for the author to hang his argument on the 1876 election, where it is highly likely that Tilden’s victory in the popular vote (and the questions over the electoral college) were entirely down to massive racist voter suppression in the Deep South. I’m not really sure we should be approvingly quoting Tilden and the 1876 Democrats on anything to do with fair elections and democracy…
It seems we have started the same narrative the Democrats used in 2016. There was such an outcry because Trump would not say he would accept the results. Then when Hilary lost, who wouldn’t accept the election? And who hasn’t accepted it throughout his presidency? And who didn’t accept President Bush’s presidency? DEMOCRATS!
I never thought I would see the day that such biased trash would appear in Unherd. Very, very disappointing. Its the sort of garbage article that the Guardian would accept or the BBC would make a documentary of pointing out every five minutes that there have been unexplained communication between DT and BJ.
This was an interesting thought experiment. Thanks for publishing it.
Tom Fitton and Judicial Watch would beg to differ (search YouTube ‘Fitton: The left wants to be able to steal elections’). There’s an obvious huge potential for voter fraud with mail in ballots. Millions of ineligible names on voter roles and driving licenses given to non-citizens. There’s also evidence that it’s taken place in significant volumes. This has to be about the lowest information article I’ve seen so far on unHerd. It’s odd how TDS makes otherwise intelligent people lose their reasoning skills.
https://youtu.be/b6h0gC7Ws2c
I stopped reading at the “all right thinking people know Trump is evil” bit. Show your readers some respect, Mr Baer.