President Donald Trump loves to boast and gloat about rigged elections and voter fraud, however, it turns out that the real trickery on November 3 will be perpetrated by his campaign – and the Constitution may allow him to get away with it.
It all comes down to loopholes within the Electoral Count Act of 1887, which was enacted after the bitter presidential election between Republican Ulysses S. Grant and Democrat Samuel Tilden in 1876. Neither candidate earned enough of a majority in the Electoral College to be declared the winner, and the contest ultimately ended with Tilden conceding to Grant following a bitter fight in the House of Representatives. Tilden – it must be noted – won the national popular vote.
That showdown forced Congress to provide some sort of measure to prevent a repeat mess in future elections. But the nebulous language within the law – which assigned the House, Senate, and individual states separate responsibilities – has left a door wide open for Trump to finagle his way into a second term, regardless of whom voters choose.
The Electoral Count Act established a few things. First, that each state appoint electors – people who, ideally, would pledge to support whichever candidate their state’s residents pick – no more than 41 days after Election Day. Second, the law decrees that these electors convene with the House of Representatives on January 6 to certify the results, which in turn are handed to the Senate, wherein “the President of the Senate shall call for objections, if any,” the act states. “Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.”
Under normal circumstances, six weeks should provide more than enough time for enough votes to be counted to determine a winner. But the chaos driven by the coronavirus pandemic may result in major delays tallying votes, tens of millions of which will be submitted by mail and managed by the struggling United States Postal Service.
If this occurs, and every day the likelihood increases that it will, Trump could declare victory on December 14 whether or not he is ahead – and there is little anyone can do to stop him.
One expert on the Electoral Count Act likened this scenario to a “death asteroid” smashing into the Earth.
“I used to think of this as the death asteroid that would hit planet Earth: very small chance of this happening, but if it did happen, it would be really, really bad,” Ned Foley, the director of election law at Ohio State University, told The Atlantic‘s Edward-Isaac Devere earlier this month. “Normally the asteroids miss planet Earth. Apparently we’ve got an asteroid heading our way for the night of November 2, which I hope is not a bad omen.”
On Wednesday, The Atlantic’s Barton Gellman wrote in an exhaustive analysis that the Trump campaign and other Republican insiders admitted to him that the aforementioned is precisely what Trump has up his sleeve.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” one unnamed campaign adviser told Gellman.
The foreboding issue, the adviser stressed, is that counting the votes simply may take too long.
“If you have this notion,” the adviser said, “that ballots can come in for I don’t know how many days – in some states a week, 10 days – then that onslaught of ballots just gets pushed back and pushed back and pushed back. So pick your poison. Is it worse to have electors named by legislators or to have votes received by Election Day?”
The GOP’s plot to potentially thwart democracy may coalesce in Pennsylvania, whose 20 Electoral College votes were narrowly carried by Trump in 2016 and which may determine the victor in 2020.
This is not some cockamamie Democrat freak out, Gellman warned. Two prominent Pennsylvania Republicans confirmed that the possibility of Trump naming his own loyal electors is a very real one.
“I’ve mentioned it to them, and I hope they’re thinking about it too,” said Lawrence Tabas, chairman of the Pennsylvania Republican Party. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution, and that “if the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the electoral process.
Pennsylvania’s Republican State Senate Majority Leader, Jake Corman, added that “the longer it goes on, the more opinions and the more theories and the more conspiracies [are] created.”
While both men expressed the hope that votes would be counted on time, if December 14 arrives and no winner emerges, there may be no other option.
“We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law,” Corman said.
Trump’s incessant barrage of false claims about rampant, albeit non-existent voter fraud, specifically surrounding mail-in voting, already threatens to erode the people’s confidence in the uniquely convoluted way the United States chooses a president.
Gellman explained in his report:
Republicans control both legislative chambers in the six most closely contested battleground states. Of those, Arizona and Florida have Republican governors, too. In Michigan, North Carolina, Pennsylvania, and Wisconsin, the governors are Democrats.
Foley, the Ohio State election scholar, has mapped the ripple effects if Republican legislators were to appoint Trump electors in defiance of the vote in states like Pennsylvania and Michigan. The Democratic governors would respond by certifying the official count, a routine exercise of their authority, and they would argue that legislators could not lawfully choose different electors after the vote had taken place. Their “certificates of ascertainment,” dispatched to the National Archives, would say that their states had appointed electors committed to Biden. Each competing set of electors would have the imprimatur of one branch of state government.
In Arizona, Secretary of State Katie Hobbs, who oversees elections, is a Democrat. She could assert her own power to certify the voting results and forward a slate of Biden electors. Even in Florida, which has unified Republican rule, electors pledged to Biden could meet and certify their own votes in hope of triggering a “controversy or contest” that would leave their state’s outcome to Congress.
Amazingly, there is a legal precedent that Team Trump can invoke:
Much the same thing almost happened during the Florida recount battle of 2000. Republican Governor Jeb Bush certified electors for his brother, George W. Bush, on November 26 of that year, while litigation of the recount was still under way. Gore’s chief lawyer, Ronald Klain, responded by booking a room in the old Florida capitol building for Democratic electors to cast rival ballots for Gore. Only Gore’s concession, five days before the Electoral College vote, mooted that plan.
All of this is slated to happen in not just one state, but many in which the election is expected to be close, nearly a month before a freshly-sworn in Congress meets to certify the election:
In any of these scenarios, the Electoral College would convene on December 14 without a consensus on who had legitimate claims to cast the deciding votes.
Rival slates of electors could hold mirror-image meetings in Harrisburg, Lansing, Tallahassee, or Phoenix, casting the same electoral votes on opposite sides. Each slate would transmit its ballots, as the Constitution provides, “to the seat of the government of the United States, directed to the President of the Senate.” The next move would belong to Vice President Mike Pence.
The 12th Amendment to the Constitution empowers the vice president to tally the count from the House:
The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.
That, Gellman said, “means that Pence has the unilateral power to announce his own reelection, and a second term for Trump,” unless Democrats manage to retake the Senate:
If Democrats win back the Senate and hold the House, then all roads laid out in the Electoral Count Act lead eventually to a Biden presidency. The reverse applies if Republicans hold the Senate and unexpectedly win back the House. But if Congress remains split, there are conditions in which no decisive outcome is possible – no result that has clear force of law. Each party could cite a plausible reading of the rules in which its candidate has won. There is no tie-breaking vote.
This is where things become even hairier:
Suppose Pennsylvania alone sends rival slates of electors, and their 20 votes will decide the presidency.
One reading of the Electoral Count Act says that Congress must recognize the electors certified by the governor, who is a Democrat, unless the House and Senate agree otherwise. The House will not agree otherwise, and so Biden wins Pennsylvania and the White House. But Pence pounds his gavel and rules against this reading of the law, instead favoring another, which holds that Congress must discard both contested slates of electors. The garbled statute can plausibly be read either way.
With Pennsylvania’s electors disqualified, 518 electoral votes remain. If Biden holds a narrow lead among them, he again claims the presidency, because he has “the greatest number of votes,” as the Twelfth Amendment prescribes. But Republicans point out that the same amendment requires “a majority of the whole number of electors.” The whole number of electors, Pence rules, is 538, and Biden is short of the required 270.
On this argument, no one has attained the presidency, and the decision is thrown to the House, with one vote per state. If the current partisan balance holds, 26 out of 50 votes will be for Trump.
But House Speaker Nancy Pelosi (D-CA) commands her own authority, too. She could expel the entire Senate from the House chamber, delaying a final vote entirely.
That, as crazy as it may seem, would give Pelosi a legitimate claim to the presidency – and Trump himself prophecized this not long ago.
“You know there’s a theory that if you don’t have it by the end of the year crazy Nancy Pelosi would become president,” Trump said last month. “You’ve heard that theory. Now I don’t know if it’s a theory or a fact, and I said, ‘that’s not good.’”
Even so, there will remain a two-week gap between when Congress meets and Inauguration Day – leaving only one final route to finality – the Supreme Court, which, if Trump gets his way and gets a third Justice confirmed, all but ensures he remains in office.
Thus, nothing short of a relatively fast and definitive Biden victory may be able to stop Trump.
Forty days left until the election. Brace for impact.
What's Your Reaction?
Brandon is a political writer for the Hill Reporter specializing in current events, breaking news, and scientific discovery. Brandon holds a Bachelor of Music degree from Indiana University. He lives in New York City.