ADVERTISEMENT

Farid Zakaria: Trump could stay in power even if he doesn’t win the election. The Constitution allows it.

cigaretteman

HR King
May 29, 2001
77,133
58,315
113
Opinion by
Fareed Zakaria
Columnist
September 24, 2020 at 4:25 p.m. CDT

Add to list
By declining to commit to a peaceful transfer of power, President Trump has agitated many who fear he will refuse to leave office even if he loses the November election — and may even resort to violence. The terrifying reality is that there are also several mechanisms that are legal and constitutional that could enable Trump to stay in office without actually winning the vote.

The system of electing the president is complicated because it was not designed to be directly democratic. The Constitution calls for states to choose the presidential electors, who in turn gather to vote for the president. Over time, states have passed laws that ensured their state’s popular vote for the presidency would determine the electors. But those are laws, not a constitutional obligation.
Now, imagine the scenario during election week: Trump is leading on Nov. 3, but Democratic nominee Joe Biden gains ground in the days following. Republicans file objections to tens of thousands of mail-in ballots. Democrats file countersuits. Taking account of the confusion, legislatures decide to choose the electors themselves.
AD



Here’s the worry. Of the nine swing states, eight have Republican legislatures. If one or more decide that balloting is chaotic and marred by irregularities, they could send what they regard as the legitimate slate of electors, which would be Republican.
Democrats may object and file lawsuits. In some of those states, Democratic governors or secretaries of state could send their own slates of electors to Washington. That would add to the confusion, but that might well be part of the Republican plan. When Congress convenes on Jan. 6 to tally the electors’ votes, there would be challenges to the legitimacy of some electors. Congressional Republicans would agree that disputed states should not be counted. That would ensure that neither candidate would get to 270 electoral votes.
Sign up for The Odds newsletter for election updates from data columnist David Byler
At that point, the Constitution directs that the House of Representatives vote to determine the presidential election. But it does so with each state casting a single vote. If the current numbers hold, there would be 26 state delegations that are Republican and 23 Democratic (with one tied), so the outcome would be to reelect Trump. Trump does not need to do anything other than accept this outcome, which is constitutional. (Hat tip to Tom Rogers and Tim Wirth for their writings on this topic.)
AD


Trump clearly understands this chain of events. He has been casting doubt on mail-in ballots for months, insisting that the results must be the ones that reflect the tally on election night. He said this week that without mail-in ballots, there would be no worries about a transfer of power because there would simply be a continuation of his rule. He has also acknowledged that “at a certain point, it goes to Congress.”
For this scenario to play out, state Republican parties have to put their desire to win above concerns that all voices are heard. Unfortunately, recent history suggests that most will readily make this trade.
Many state Republican parties have been actively attempting to suppress votes. Just a few examples: In 2011, Texas passed a law requiring a government ID for voting, and allowed gun licenses but not student IDs from state universities. Ostensibly, this was to prevent voter fraud, which several studies have shown is largely nonexistent. In 2017, Georgia passed a law blocking voter registrations with minor typos, which mainly affected Black voters. In Florida, the Republican governor and legislature have effectively gutted a state initiative that restored voting rights to more than 1 million former felons, disproportionately Black.
AD


American democracy is getting warped because the Republican Party believes its path to power lies not in getting a majority of the votes but through other means. In 2018, thanks to redistricting, Republicans in Wisconsin, having won about 45 percent of the vote, ended up with almost 65 percent of the seats in the state assembly. They have become used to this kind of situation on the national stage. Since 1992, the Republican presidential candidate has won the popular vote only once — in 2004, in the wake of the country’s worst terrorist attack and with a wartime “rally around the flag” sentiment. Nevertheless, Republicans have held the White House for almost half of those 28 years.
The United States prides itself as the world’s leading democracy. And yet, because of a vague and creaky constitutional process and ferocious partisanship, this November we might put on a display of democratic dysfunction that would rival any banana republic on the planet.

 
  • Angry
Reactions: Torg
Trump will happily leave office if he loses the election,... The bigger question is will we be able to accurately determine a winner?
 
Trump will happily leave office if he loses the election,... The bigger question is will we be able to accurately determine a winner?

Yes, we will know who had the most popular votes. And we will almost certainly know who should have the most electoral votes based on voting totals and statistical margins of error. To any extent that there is doubt as to the accuracy, it is a near certainty that votes for Biden will be the ones undercounted.

And the notion that Trump will happily leave office even if he loses the election is laughable. Even if we know with a certainty that he lost, he and the GOP will fight tooth and nail to negate the results and send it to the House. They have been laying the groundwork for years to negate the will of the people, and that is what they will do starting November 4.
 
He won’t be happy about it nor will he be a gracious loser. However I think he will leave if it’s a blowout. If it’s at all close, see something like Bush Kerry, he will stop at nothing to stay in office.

Yeah, that's why we REALLY need a blow-out. Which means every Biden voter must vote IN PERSON. He could get blown out in Florida, but still be leading on the morning of November 4. If that happens, the GOP will absolutely use their power - and they control the Senate and the courts - to illegimately keep Trump in power.

The GOP has completely abandoned any sense of principle or patriotism. They know they lack the support of the nation, but they believe they have support of those people who matter - white folks - and that anything to maintain control is legitimate because they represent the "real Americans."

It is disgusting.
 
Well we need to start by addressing the court,... Going into this election with an even number of justices is a recipe for disaster,.. The only thing that would be worse than having the SCOTUS determining the outcome of this election would be having a SCOTUS that couldn't determine the outcome of this election...
 
Well we need to start by addressing the court,... Going into this election with an even number of justices is a recipe for disaster,.. The only thing that would be worse than having the SCOTUS determining the outcome of this election would be having a SCOTUS that couldn't determine the outcome of this election...
Where was this argument in 2016? Why was it ok to go into that election with 8 justices, but we need 9 now?
 
I will gladly march on Washington with violent intentions if this plays out. And I believe there is an excellent chance it will.

Trump is a dangerously terrible person, and the GOP has become a dangerously terrible organization.

Yep, nearly every elected official in Tump's GOP have shown that they zero integrity and willfully and gleefully put partisan gain ahead of the constitution, the separation of powers and the rule of law. They are truly deplorable and despicable human beings, just like our so-called president, but worse.
 
Anyone who thinks we’ll know the next president on election night is mistaken.

Dems need to start making it a talking point that we probably won’t know who won for a few days or even longer. That’s why we vote in early November to change hands in mid-January. There’s plenty of time to get it right. It’s not a crisis until mid-January.
 
As far as I am concerned, if a GOP Kangaroo Supreme Court makes Trump the winner, that is Fort Sumtner and Pelosi should respond by not funding the court system. Yes, they have to pay the judges, but they dont have to pay support staff or operating costs.
 
  • Like
Reactions: GOHOX69
Well we need to start by addressing the court,... Going into this election with an even number of justices is a recipe for disaster,.. The only thing that would be worse than having the SCOTUS determining the outcome of this election would be having a SCOTUS that couldn't determine the outcome of this election...
Bullshit!! The freaking court should have nothing to do with this. The ONLY reason it does is because we have a corrupt president followed and helped by corrupt people who want to steal this election...steal our democracy. Trump has laid the groundwork that this is rigged. The democrats aren't rigging anything. They're voting. Trump is doing everything, with the tools of the senate and DOJ to blow this up.

We are in big freaking trouble if that happens. I told my wife last night...if he does, I think I feel obligated to march on Washington too.

If he wins the EC, so be it. But if this goes like I think it is going to go, it will be rigged for Trump. Right in front of us and Republicans are complicit.
 
I saw a Michael Cohen interview on CNN last night. He reiterated that Trump won't leave peacefully. End of story.
 
Anyone who thinks we’ll know the next president on election night is mistaken.

Dems need to start making it a talking point that we probably won’t know who won for a few days or even longer. That’s why we vote in early November to change hands in mid-January. There’s plenty of time to get it right. It’s not a crisis until mid-January.

I think there is a reasonable chance we will know the next president election night or early the next day. There is a relatively small number of states that may go either way. The others are pretty locked in as a safe Dem or GOP state. Florida, Arizona, North Carolina, Texas, and Ohio will start counting mailed in ballots before election day. Georgia, Iowa, Michigan, Nevada, Pennsylvania, and Wisconsin count the ballots on election day, but not necessarily wait for the polls to close. All states are preparing for much larger mail-in voting numbers this year and none of them want to be embarrassed by a vote-counting screw-up. I am confident the count will go much better than people think.

The president will continue to spread doubt about the legitimacy of the vote because that is how he can explain a loss (if it happens) and set the ground for legal challenges if the vote is close. Trump will make a close election a shit show, even when not warranted.
 
  • Like
Reactions: artradley
I think there is a reasonable chance we will know the next president election night or early the next day. There is a relatively small number of states that may go either way. The others are pretty locked in as a safe Dem or GOP state. Florida, Arizona, North Carolina, Texas, and Ohio will start counting mailed in ballots before election day. Georgia, Iowa, Michigan, Nevada, Pennsylvania, and Wisconsin count the ballots on election day, but not necessarily wait for the polls to close. All states are preparing for much larger mail-in voting numbers this year and none of them want to be embarrassed by a vote-counting screw-up. I am confident the count will go much better than people think.

The president will continue to spread doubt about the legitimacy of the vote because that is how he can explain a loss (if it happens) and set the ground for legal challenges if the vote is close. Trump will make a close election a shit show, even when not warranted.

Yep. And that is what Rifler is hoping for. Even though we really will know who won, if it's Biden the GOP will scream "fraud" and their base will hysterically agree. They will CLAIM we don't know, and do everything in their power to overturn the results by using their stacked courts to delay and delegitimize, working their way until a handful of GOP politicians are put in a position to appoint Trump.

That's why people like Rifler are laying the groundwork now - assuring us we will never be able to know the true winner.
 
Well we need to start by addressing the court,... Going into this election with an even number of justices is a recipe for disaster,.. The only thing that would be worse than having the SCOTUS determining the outcome of this election would be having a SCOTUS that couldn't determine the outcome of this election...

Ironically, a conservative packed SCOTUS should reject cert challenging election voting procedure or counting...that is a state court issue. SCOTUS in Bush v. Gore latched on to a pretty weak EP argument that many people thought was a throw-away argument. After the Florida Supreme Court ordered a statewide recall, that's where judicial review should have ended---if you are an originalist.
 
ADVERTISEMENT