Much discussion has been had about mail-in voting, and the elevated amounts of election fraud it enables. But Republicans are kidding themselves if they think dubious mail-in votes are the only shady way this election could be lost in November. Like all electoral systems, America’s democracy is not flawless. It only continues to exist because throughout the country’s history most actors have operated on good faith and have kept institutions going rather than undermining them. But in their frenzy to destroy Donald Trump and everything he represents, the left no longer cares about sustaining norms or institutions. Instead, in 2020, they will exploit every loophole and weak point in the constitutional order to achieve victory. Here are some of those vulnerabilities, plus other fringe situations that could throw the election into total chaos.
1. Congress can refuse to certify the results.
When the Electoral College casts its votes for president, the process isn’t automatic. Instead, the U.S. Congress must certify the results in joint session. The U.S. Code is extremely detailed about the precise process for tallying up electoral votes. And that is exactly the problem. The process looks like this:
The language is dense, but the ramifications are clear: There are countless ways for a hostile Congress to interfere with the results of the election. Even if Democrats only manage to hold the House, they can gum up the process with objections. The House can then vote to sustain the objections, slowing the process down and muddying up the legitimacy of the outcome. But the most dangerous option is the most direct: If Democrats also take control of the Senate in November, they can simply refuse to certify any result that doesn’t satisfy the party. Alternatively, they could be even more aggressive and certify an alternative electoral college result based on disputed vote totals.
What happens then? Nothing less than a full constitutional crisis. The crisis would immediately go to the Supreme Court, but that would already be a victory for the perpetrators, since there would always be at least a slight chance of the Court siding with them. And if the Court rules against Democrats, it’s entirely possible that the Congress still refuses to submit, perhaps using the presence of a newly-arrived Justice Amy Coney Barrett as an excuse. At that point, Democrats could end up relying on the military to side with them…a possibility that they are definitely preparing for.
2. Competing electors
The law above directly alludes to another possibility that could turn the 2020 election on its head: A contested state may have both its Republican and Democratic electors claim victory, and try to submit their electoral votes in January.
Imagine, for example, that Michigan ends up as close as it was in 2016, when Trump won by barely ten thousand votes. This time around, Democrats have primed themselves to sharply contest any such outcome as the work of Russian interference or “voter suppression” via the postal service. Michigan now has an ardently Democratic governor in Gretchen Whitmer as well as a far-left secretary of state in Jocelyn Benson (who once worked for both the Southern Poverty Law Center and the NAACP Legal Defense Fund).
So, what happens if Trump narrowly wins in Michigan again, but Whitmer declares the result illegitimate? Michigan’s four-member board of canvassers, with two members from each party, may fail to certify an outcome. Whitmer and Benson could block the state from sending any electors to Washington, or even declare Biden’s electors be the state’s real choice. Michigan’s legislature is controlled by Republicans, though. They could fight back by convening and voting to endorse Trump’s slate of electors. If that happens, both slates of electors could submit their votes to Congress, demanding to be recognized as the “true” choice of Michigan.
What happens then? Nobody knows! A Roll Call analysis from June called the relevant 1887 law “almost unintelligible.” One theory is that Congress would have to accept the slate of electors endorsed by Governor Whitmer. Another interpretation argues that neither slate of electors would be counted. Once again the outcome is a huge mess, forcing all parties to resort to the Supreme Court.
3. Judicial intervention
Many have remarked that the Supreme Court could get involved in the 2020 election, but that understates the problem: Every federal judge in the country has the power to massively sway the election outcome. If there has been one constant of the Trump Administration, it’s that federal judges will seize upon any excuse, no matter how legally specious, to stop the Trump administration and advance liberal causes. In 2018, a federal judge invented a “right to say goodbye” to order the release of a criminal immigrant facing deportation. Other judges have claimed that the president’s tweets bar him from obviously legal acts like imposing travel bans on certain countries or repealing DACA. Just this month, a San Francisco judge blocked the president’s clearly-legal suspension of new H-1B visas meant to protect American workers during the coronavirus pandemic. None of this is sound law. It’s the invention of flimsy legal pretexts to serve the greater goal of stopping Trump.
What stops that from happening in November, with the highest stakes imaginable? Nothing. In a close race, it’s a virtual certainty that left-wing judges will invent any pretext possible to help drive Trump from power.
They’ve been doing it already. In Georgia, a judge has ordered state officials to accept mail-in ballots until three days after election day, when existing state law required them to arrive on election day itself. In Pennsylvania, the state Supreme Court has required late-arriving ballots to be counted even if they don’t carry a postmark, greatly increasing the potential for fraud.
Even more radical rulings are easy to imagine. Judges could require states to count ballots with no signature. They could make states count ballots that were illegally harvested en masse rather than being mailed in by actual voters. But why stop there? Earlier this year, a New Jersey state judge ordered an entirely new election in Paterson due to voter fraud. What if Trump wins a state, but a judge simply orders an entirely new presidential vote, citing “voter suppression?” It absolutely could happen, and Trump would have only two options: Appeal to a higher court and hope the shenanigans are stopped, or ignore a clearly political ruling.
4. The tied Supreme Court.
In every scenario listed so far, the likely result is the election going before the Supreme Court. That was a dicey enough prospect when the Supreme Court had its full nine justices. Now, Ruth Bader Ginsburg is dead, and the Senate may not confirm Amy Comey Barrett in time for the election. If squishy “Republicans” like Mitt Romney break ranks, she may not be confirmed at all.
If the Court is divided 4-4, then resolving the political deadlock could be impossible. When the Court ties, the rulings of lower courts prevail. Left-leaning federal and state courts would feel emboldened to issue extreme rulings, taking advantage of the Supreme Court’s likely inability to reverse them. Competing courts could even split on who the legitimate president is, with some courts declaring Trump the winner and others backing Biden. The only solution short of force will be some kind of political compromise. And given how cowardly Republicans are 99 percent of the time, what are the odds they show any courage at all in a crisis like this? Any compromise negotiated by the party of Ben Sasse will likely resemble a surrender to the other side.
5. President Pelosi
It’s possible that the election will be such a legal mess that no winner will be determined (or agreed upon) by the constitutional transition date of January 20. If that’s the case, then Donald Trump does not continue in office, as some might expect. Instead, this situation is governed by the text of the Twentieth Amendment:
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
In other words, the Presidential Succession Act governs who will be president. And under that act, the third in line to the presidency is the sitting Speaker of the House. That’s right. If the presidential election is still in dispute on January 20th, Nancy Pelosi will become president.
Now, Pelosi would not be the permanent president, and would have to step down as soon as a real president is chosen. But by taking power, even briefly, Pelosi could order the executive branch to meddle on behalf of the Biden/Harris ticket. If a Trump legal victory appears imminent, Pelosi could go scorched earth by revoking Trump’s executive orders, issuing her own, and firing or hiring personnel at a frantic pace, with the goal of causing as much difficulty for a restored Trump administration as possible.
Even stranger permutations are possible, though. While Pelosi is the likely Speaker of the House in this scenario, she doesn’t have to be. The Speaker is elected at the beginning of each Congress, and in 2019, 15 Democrats refused to back Pelosi. She was confirmed by a narrow majority of just five votes. When House Democrats realize the implications of the Speaker election in such a fraught political environment, they could scheme to choose a Speaker who is even more extreme than Pelosi to serve as acting president. This acting president would serve as long as the election remains in dispute, a situation that could last for months. If that happens, literally anything is possible. With Trump out of office and Democrats in control of the Department of Justice, this acting president could even have Trump arrested on bogus criminal charges.
6. A 269-269 tie…followed by a coup.
Many observers have recognized this possibility, but they haven’t appreciated its full implications. Under the Constitution, a tied electoral vote is voted on by the newly-seated House of Representatives. But representatives don’t vote as individuals. They vote as state delegations, with every state getting a single vote. Despite being a minority in the House right now, Republicans actually do have a narrow 26-23 majority in state delegations (Pennsylvania is tied). If that number holds in November, then Trump would win a tie, right?
Not so fast! Under the 12th Amendment, the House doesn’t pick from the top two candidates, but from the top three. Additionally, the “one vote per state” rule dramatically powers up representatives from states with only a single representative, or states where the partisan split is very close. While no sitting Republican Congressmen are explicitly anti-Trump, it’s no secret that many lawmakers secretly despise the president. Conceivably, if these lawmakers could convince a single elector (of either party) to faithlessly cast his or her vote for a non-Trump Republican, they could have that alternative Republican be an option during the House vote. Then, those Republicans could try getting House Republicans to back this alternative Republican, rather than the president, threatening to back Biden instead if they don’t get their way.
Ridiculous? Not in 2020. The only limits are imagination and shame, and most of Washington has none of the latter.
It’s impossible to predict the final outcome if any of these situations come to pass. Hopefully, President Trump simply wins a clear victory, and none of them happen. But it’s also possible that several will happen at once. Some of these scenarios may sound ridiculous, the sort of coup d’etat that the public would immediately rebel against. But remember: Corporate America, the press, academia, and the career bureaucracy are overwhelmingly in favor of the left. No matter how ridiculous the effort to topple Trump gets, professors and pundits will immediately step up to claim that these actions are completely justified, while Republican efforts to resist them are authoritarian. Big Tech will censor the president’s defenders, or even the president himself. “Mostly peaceful” protesters will spawn in every major city, to give the efforts a veneer of popular support. As soon as the election is about anything except the straightforward tallying of votes, the left has the advantage, because they can bring their total domination of American institutions to bear to enforce their will.
How, then, can President Trump and his allies stand up to this? Their biggest advantage will be a simple one: They will indisputably be standing up for America’s historic norms and the way things have been done successfully for more than 200 years. The most important thing is to be prepared for the possibility. Be ready to stand up for the rule of law, and forcefully label any underhanded ploy to change the outcome for what it is. Have a gameplan in place for a deadlocked Supreme Court or a state-level attempt to meddle with the outcome. Be prepared to maintain strict control in Washington D.C., itself; if the mob is allowed to rampage it will be taken as proof that Trump has lost control of events. If there is any reason to doubt a military commander’s dedication to the constitutional order, get them out of command right now, or at least get them far away from Washington. If Republicans are caught off-guard by how far the left is willing to go, they will lose. But if they are prepared for the tempter tantrum, they can triumph.
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