President Trump could find ways to get around a Biden win in the election
Trump told reporters today that he predicts the election will have to be decided in the Supreme Court
It doesn’t appear that President Donald Trump is going to let a potential Joe Biden victory keep him from remaining in the White House for four more years. The Atlantic reported on Wednesday in a preview of its November issue, that the nation’s sitting president could be looking for a way to bypass any Biden victory, which he seemingly confirmed during a press conference shortly thereafter.
The Atlantic’s Barton Gellman says that political and legal experts see a chaotic election despite the official results because of the extraordinary things that have taken place already this year, including a pandemic and Trump appointee Louis DeJoy’s attempted dismantling of the Postal Service in order, many believe, to prevent mail-in voting. During the year’s primaries, troubling reports of voter suppression emerged, with long lines in several states, most notably in the Georgia Democratic presidential primary in June.
“We could well see a protracted postelection struggle in the courts and the streets if the results are close,” Richard L. Hasen, a professor at the UC Irvine School of Law and author of the book called “Election Meltdown” told The Atlantic. “The kind of election meltdown we could see would be much worse than 2000’s Bush v. Gore case.”
In a press conference Wednesday, Trump seemed to confirm that he wouldn’t take an election loss at face value. When directly asked by a reporter at the White House presser if he would commit to a peaceful transfer of power, he was vague.
“We’ll have to see what happens,” Trump said. “I’ve been complaining about the ballots. The ballots are a disaster. Get rid of the ballots and there won’t be a transfer, frankly. There will be a continuation. The ballots are out of control and you know who knows it better than anyone else, the Democrats.”
As reported by The Associated Press, when asked about appointing a Supreme Court justice to replace the late Ruth Bader Ginsberg, who succumbed to cancer last week at 87, Trump said he thinks the election “will end up in the Supreme Court,” adding, “I think it’s important we have nine justices.”
He continued, “I think it’s better if you go before the election.”
In 2016, Republicans objected to Obama appointing the next Supreme Court justice when Antonin Scalia died 237 days before the 2016 presidential election. Obama ultimately did not appoint a new justice and the Senate refused to advance the nomination of Judge Merrick Garland, the candidate he chose. Ginsberg died 46 days before the 2020 election and she has been quoted as saying she didn’t want to be replaced until the next president took office.
Unless Biden has an overwhelming victory over Trump and even then, Trump and his allies could find ways to delay the election based on the ambiguities in multiple areas of the election process and the Electoral College Act, which at its most basic, mandates that whoever is in front by Dec. 14 in an election year wins the election, Gellman writes. This is separate from the Electoral College, which determines elections based on electoral votes in each state.
As most of us know by now, it takes 270 electoral votes to win the election regardless of the popular vote. In multiple states like Pennsylvania, Ohio, and Florida, where Biden and Trump could be close, there may be pressure applied on electors to give those votes to Trump. Mail-in and provisional ballots would still need to be counted and could delay Biden’s ability to take office as the president-elect by Jan. 20 of 2021, which is when the constitution mandates a new president must take office.
However, citing previous presidential election precedent, it would be unlikely that the Electoral College Act plays a role in the next election unless the race is close.
“So much will have had to go wrong at so many other stages of the process to get to a point where everything is coming down to conflicting interpreting of the Electoral Count Act,” Michael Morley, a professor at Florida State University College of Law, told The Atlantic. “You would have to have a lot of political actors playing constitutional hardball in circumstances where they had serious claims to back them up.”