President Donald Trump showed his skill at trolling last week, sending his critics into a frenzy when he re-tweeted Jerry Falwell Jr.’s assertion that “Trump should have 2 years added to his 1st term as payback for time stolen by this corrupt failed coup.” The idea of a lunge for extra-constitutional power was then embraced by none other than House Speaker Nancy Pelosi, who reportedly said she “does not automatically trust the president to respect the results of any election short of an overwhelming defeat.”
It might sound absurd, but for people who understand the mechanics of the U.S. electoral process, her fears have an edge of plausibility.
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It’s extremely unlikely that a defeated President Trump would literally barricade himself in the Oval Office, denouncing the millions of illegal aliens and corrupt Democratic election officials who led to his downfall at the ballot box, while loyal aides bar the new president from entering the White House. (Something like that actually did happen back in 1946 in Georgia, though, when three men claimed to be the governor, and one of them even set up an office down the hall.)
Less far-fetched is that a president unconcerned with the consequences of chaos for American democracy could cannily exploit our creaky, sometimes incoherent set of rules about how to deal with a disputed presidential election—and turn the ensuing chaos into a claim to reelection regardless of the vote.
What would that look like? The key moments would happen at three different post-Election Day stages, as long as the vote in one or more decisive states was close enough to trigger the kind of chaos we saw in Florida back in 2000.
Is that a reach? Hardly. Back in 2016, the three states that gave Trump his Electoral College majority—Pennsylvania, Wisconsin and Michigan—all were decided by less than 1 percent of the vote. If the race is that close again, here’s what could happen next.
1. A state legislature decides to buck the electoral vote.
It’s safe to presume that the 2020 election will be fought with a barrage of charges and countercharges about a “rigged” election and that these charges will be especially fierce in swing states. As it happens, those three key states—Michigan, Pennsylvania, Wisconsin—all have Democratic governors. But their state legislatures are controlled by Republicans. And the Constitution puts the power to choose electors squarely in the hands of legislatures. It’s right there in Article II, Section 1, Clause 2. and it says the legislature can do this “in such manner as the Legislature thereof may direct.” A governor has no say whatsoever about this.
Indeed, there’s no requirement that the legislature has to allow the citizens of its state vote at all. In their Bush v. Gore concurrence, William Rehnquist. Antonin Scalia and Clarence Thomas appeared to muse that a state legislature would be allowed, under the Constitution, to consider the popular vote merely advisory, and to allocate the state’s electors to another candidate, in defiance of the public’s ballots. “There are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government,” they wrote. “This is one of them.”
Is it fanciful to think a legislature might step in to resolve a contested count in a presidential election? No—it’s history. In 2000, as the Florida Supreme Court was ordering recounts, the state’s Republican-controlled Legislature moved to take over the process, scheduling a special session to give George W. Bush its decisive 25 electoral votes. “I’m afraid there is little we can do to prevent this horrible outcome from happening,” said Lois Frankel of Palm Beach County, then the minority leader in the state House. “It’s inevitable now.”
The U.S. Supreme Court’s ruling in Bush v. Gore put an end to the dispute before the Florida Legislature could act. But if there’s a similar too-close-to-call result in 2020, it’s not hard to imagine that Republican legislators would have little compunction in taking a similar vote. A Democratic governor might try to certify a competing slate of electors, but she would face serious obstacles in the courts. Wisconsin, for example, has a conservative, politically activist majority on its Supreme Court.
Would the legislators fear the blowback created should they choose to pick a winner in a too-close-to-call recount? The behavior of Republicans in the Senate over the past two years suggests otherwise. As with every assertion of executive dominance by the president, Susan Collins might express “dismay,” and Ben Sasse might offer a homily about his “concern,” but that’s about it.
2. Democrats in Congress fight back.
The chances for chaos would not end with the swing-state legislature’s machinations. The ultimate judge of the process is Congress, which meets in joint session in early January to receive the report of the Electoral College votes and to decide if those votes are kosher— “properly given,” in legalese. The process is set down in the Electoral Count Act of 1887, a law passed in the wake of the disputed election of 1876. That battle, between Rutherford B. Hayes and popular-vote winner Samuel Tilden, didn’t end until a few days before the inauguration.
So what if furious Democrats object to the swing state legislature’s antidemocratic overturning of the state’s popular vote? If one senator from any state and one representative from any state objects, the members withdraw to their respective chambers. If the Congress renders a split decision, then those disputed votes would count. But if both houses vote to reject a state’s electors—which could happen in the event Democrats keep the House and take the Senate in November 2020—the state’s electoral votes would be discarded.
And if that unlikely event happens—let’s say the votes of Michigan or Pennsylvania or Wisconsin are thrown out—what then?
3. One vote per state. Seriously.
Discarding the votes of a decisive state would leave neither candidate with the 270 electoral votes needed to win a majority. (That’s what would have happened had the Congress rejected Florida’s electoral votes back in 2000). If no candidate won an electoral majority, the election would be thrown into the House of Representatives, where each state—not each member of Congress—would cast one vote. Right now, even though Republicans have only a minority of House members, they have a majority of state delegations. And in this scenario, Wyoming’s lone House member would have the same clout as California’s 55 members. If that holds true after November 2020, House Republicans might possess the power to give Trump a second term.
Back in 2000, Al Gore’s decision not to fight the Supreme Court’s ruling in Bush v. Gore allowed for a peaceful resolution of the election, and not a single Democratic senator objected to the slate of Florida electors. In today’s climate, it’s hard to imagine that happening. A narrow Trump defeat could well move Fox News and company to assert that the result was due to voter fraud—especially if such assertions had been echoing from Drudge to Breitbart to Hannity to the president for weeks on end, from August to November. For that matter, a narrow Trump victory would likely be met with charges of voter suppression by Democrats.
But unlike Democrats, Republicans have a powerful arsenal of weapons—key state legislatures in swing states—should they decide that Election Day should be the start, not the end, of the real fight.