The very real fear in six weeks is not that Donald Trump will have to be escorted from the White House grounds on January 20th after Trump losing, it's that Trump escorts Biden from the White House grounds on January 20th after Biden wins.
The interregnum allots 35 days for the count and its attendant lawsuits to be resolved. On the 36th day, December 8, an important deadline arrives.
At this stage, the actual tabulation of the vote becomes less salient to the outcome. That sounds as though it can’t be right, but it is: The combatants, especially Trump, will now shift their attention to the appointment of presidential electors.
December 8 is known as the “safe harbor” deadline for appointing the 538 men and women who make up the Electoral College. The electors do not meet until six days later, December 14, but each state must appoint them by the safe-harbor date to guarantee that Congress will accept their credentials. The controlling statute says that if “any controversy or contest” remains after that, then Congress will decide which electors, if any, may cast the state’s ballots for president.
We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.
Trump may test this. According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.
To a modern democratic sensibility, discarding the popular vote for partisan gain looks uncomfortably like a coup, whatever license may be found for it in law. Would Republicans find that position disturbing enough to resist? Would they cede the election before resorting to such a ploy? Trump’s base would exact a high price for that betrayal, and by this point party officials would be invested in a narrative of fraud.
The Trump-campaign legal adviser I spoke with told me the push to appoint electors would be framed in terms of protecting the people’s will. Once committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended.
“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,’ ” the adviser said. Democrats, he added, have exposed themselves to this stratagem by creating the conditions for a lengthy overtime.
“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?”
When The Atlantic asked the Trump campaign about plans to circumvent the vote and appoint loyal electors, and about other strategies discussed in the article, the deputy national press secretary did not directly address the questions. “It’s outrageous that President Trump and his team are being villainized for upholding the rule of law and transparently fighting for a free and fair election,” Thea McDonald said in an email. “The mainstream media are giving the Democrats a free pass for their attempts to completely uproot the system and throw our election into chaos.” Trump is fighting for a trustworthy election, she wrote, “and any argument otherwise is a conspiracy theory intended to muddy the waters.”
In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.
“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “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.” He added that everyone’s preference is to get a swift and accurate count. “If the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the election’s integrity.
Jake Corman, the state’s Senate majority leader, preferred to change the subject, emphasizing that he hoped a clean vote count would produce a final tally on Election Night. “The longer it goes on, the more opinions and the more theories and the more conspiracies [are] created,” he told me. If controversy persists as the safe-harbor date nears, he allowed, the legislature will have no choice but to appoint electors. “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”
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. 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.
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.
And there's your nightmare scenario. Republican legislatures in all six battleground states appointing electors loyal to Trump, with Democratic governors in four of those six states certifying election results that clearly show a Biden win.
It would be a coup with neither side having 270 electoral votes, or, Trump claiming that his slate of electors gives him the electoral college results in order to claim victory.
So who breaks the logjam, the voters, or the electors?
The Supreme Court would decide and this is why they want someone confirmed before the election so that they can be the fifth vote for Trump holding on to power.
He will never concede, folks. If he concedes, he goes to prison for life. He knows this.
President Donald Trump refused Wednesday to commit to a peaceful transition of power if he loses the 2020 election to Democratic nominee Joe Biden.
“Well, we’ll have to see what happens. You know that. I’ve been complaining very strongly about the ballots. And the ballots are a disaster,” Trump said at a news conference at the White House. It appeared Trump was referring to mail-in ballots, which he has repeatedly condemned, without evidence, as susceptible to massive fraud.
The president had been asked by a reporter if he would commit to a peaceful transfer of power, “win, lose or draw.”
When the reporter noted that “people are rioting,” Trump replied: “Get rid of the ballots, and you’ll have a very – you’ll have a very peaceful – there won’t be a transfer, frankly, there’ll be a continuation.”
“The ballots are out of control,” Trump said, adding, “The Democrats know it better than anybody else.”
The Biden campaign issued the following statement in response to Trump declining to commit to a peaceful transfer of power if he were to lose the election: “The American people will decide this election. And the United States government is perfectly capable of escorting trespassers out of the White House.”
Minutes later, the president abruptly left the briefing room, telling the press, “I have to leave to take an emergency phone call.”
The White House did not immediately respond to CNBC’s request for details on Trump’s departure.
America is not prepared for this.
Trump is openly saying that he believes it will not be necessary to make a peaceful transition of power to Joe Biden, because he believes there's no way Joe Biden can win without "fraudulent mail ballots", that is, DOnald Trump is openly telling us that he thinks there are only two outcomes of the election, Trump wins the election, or Joe Biden cheated and that Trump will rely on the Supreme Court to rule him the victor.
There will be no transfer of power because it cannot happen in Trump's mind, therefore asking if Trump will commit to a peaceful transition if he loses is irrelevant.
That it may shatter the country into open conflict is a bonus for him.
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