US Supreme Court (Photo by Samuel Corum/Getty Images)
Artillery Row

Donald Trump’s likeliest path to staying in office

A contingent election would provide at least a patina of respectable constitutionalism

As Joe Biden tentatively plans his transition to presidential office, national obsession revolves around incumbent President Donald Trump’s audacious attempts to remain in the White House.

Backed by almost all Republicans – the exceptions being a handful of moderates, contrarians, and some who bear major personal grudges against him – Trump has refused to accept that Biden won and has not conceded. Legal challenges are in process. The state of Georgia, and probably other states with close votes, will conduct laborious recounts. The Justice Department and Senate Judiciary Committee have opened investigations. Evidence of possible voter fraud and other irregularities continue to percolate, even while rumours, generally based on “anonymous sources” that may not prove terribly reliable, suggest that Trump’s team, and possibly even Trump himself, are doubtful of a favourable outcome.

Critical government departments and agencies, including some dealing with national security, are refusing to facilitate Biden’s transition. Just days after Trump’s proclaimed loss, and in an unusual move for a president expected to leave office only ten weeks hence, he replaced much of the leadership of the US Defence Department with loyalists and is similarly expected to purge the leadership of the intelligence agencies and other important bodies whose current leaders no longer enjoy his confidence.

The Supreme Court could easily rule in his favour in a strictly partisan vote,

Legal challenges on a range of relevant issues will almost certainly continue until at least 14 December, when the decisive Electoral College will meet to cast the final votes that will determine the winner of the election. That constitutional body, which is designed to balance brut majority rule with America’s federal system, comprises electors chosen by each state in numbers equal to the state’s number of legislators in Congress: two Senators per state plus a variable number of Representatives proportional to state population size. Each elector in fact casts two votes: one for president and one for vice president, even though in practice presidential and vice-presidential candidates appear together as “running mates” on a campaign “ticket” that voters nominally chose in one ballot.

Debate rages about whether the various recounts and lawsuits can overturn a sufficient number of votes to matter. Trump is expected to continue legal filings aimed at disqualifying enough ballots to reverse the results in several crucial states where he is projected to lose. The maximalist anti-Trump position holds that little or no movement is warranted or even possible on the scale the president would need to overturn the projected results, and that he is deluding himself and embarrassing the country by refusing to acknowledge Biden’s victory.

Some left-wing commentators have tried to coax Trump into conceding with misplaced appeals to the sanctity of American democracy and practical suggestions that accepting defeat graciously now might enable Trump to stage a comeback in 2024 or at least save the Republican Senate majority, which depends on winning at least one of two runoff elections in Georgia.

A large percentage of Americans have no idea what the Electoral College is or does

The pro-Trump position suggests that claimed legal violations, either in invalid ballots or procedural errors, could disqualify hundreds of thousands of votes and award the president a second term. The most steadfast partisans of this view, including the entire Republican Congressional leadership and party apparatus, hold that conceding before these matters are settled would betray American democracy, imperil the integrity of the electoral system, and possibly create a situation in which Republicans could be barred from ever again winning the presidency. They look with hope to the federal judiciary, much of which was appointed by Trump, and especially to the Supreme Court, which has a six-to-three Republican supermajority of Justices, half of whom Trump appointed.

Thus constituted, the Supreme Court could easily rule in his favour in a strictly partisan vote, just as it did for George W. Bush with a slimmer and less conservative majority in the 2000 election, in a ruling with no significant precedent that the sharpest legal minds in the land did not think would go as it did. On the Saturday before Election Day, Trump himself mused – perhaps not facetiously – about winning re-election in this very way, parenthetically thanking the Supreme Court in advance during a Pennsylvania rally speech.

So far, the media debate revolves almost entirely around the final tabulation of votes. If enough evidence of fraud surfaces, and if court rulings based on that evidence favour Trump decisively, it is possible that he could win by court decision.

Another scenario, however, lies in the recesses of the American Constitution. A significant part of Trump’s legal strategy is oriented toward preventing crucial states from certifying results that would be averse to him. All states require vote certification before electors are dispatched. Two states, Maine and Nebraska, allow slates of electors to be split in their support of candidates, but neither is among the states in contention. If Trump can throw sufficient dirt on the electoral process to convince the courts to issue injunctions against certification in just enough states, neither candidate would win the majority of 270 electoral votes needed to triumph in the Electoral College.

In that scenario, Article Two of the US Constitution, as modified by the Twelfth Amendment, provides for a “contingent election” in which the president is chosen by the House of Representatives from among the top three electoral vote winners, while the vice president is chosen by the Senate (recall that the electoral voting for president and vice president are separate).

A “contingent election” provides for the vice president to be elected by a simple majority of votes cast by individual Senators. With a Republican Senate majority in the current Congress, Mike Pence would presumably win re-election as vice president. In the bigger contest, however, the House’s vote for president is not by individual ballot, but rather by state delegation en bloc. That means that all the Representatives from each state would cast one collective vote for president. In the current Congress, 26 out of the 50 state delegations are majority Republican. Assuming they deliver strict party-line votes, Trump would win the contingent election and be constitutionally re-elected.

A contingent election would provide at least a patina of respectable constitutionalism

This procedure is obscure, but not unprecedented in choosing American presidents. Thomas Jefferson was elected president in a contingent election in 1801, when the electoral vote in the previous year’s election resulted in a tie between him and incumbent president John Adams. In 1825, Adams’s son John Quincy Adams also won the presidency in a contingent election, in which four candidates split the Electoral College vote that resulted from the election of 1824. The younger Adams prevailed over Andrew Jackson, who had won large pluralities in both the popular and electoral votes. Neither of the losers in those elections was happy, but the winners’ presidencies, though controversial in other ways, were untarnished by the circumstances of their elections, firmly founded, as they were, in constitutional law. In 1836, a third contingent election took place when all of Virginia’s electors declined to vote for Millard Fillmore’s unpopular vice-presidential running mate, Richard Mentor Johnson. Depriving Johnson of an Electoral College majority in the vice-presidential vote, the constitutionally required Senate vote was duly held and elected Johnson contingently, again with no ill effect on his valid, if obscure, tenure.

Times have changed since then, and explaining this procedure to average Americans of today, a large percentage of whom have no idea what the Electoral College is or does, disapprove of it if they do, and would rather tear down a statue of Jefferson than learn about how he was elected president, will add layers of confusion and strife in an already tortured election year. It is, of course, only one possible way in which the brewing crisis could be resolved, but no matter which candidate ultimately prevails, half the country will be absolutely convinced that the 2020 presidential election was stolen. A contingent election, however, would provide at least a patina of respectable constitutionalism.

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