Your Most Paranoid Questions About Trump’s Refusal to Concede, Answered
Donald Trump’s refusal to concede and accept the results of the presidential election has sparked anxiety from many about the state of American politics in 2020. Despite it now being mathematically impossible for Trump to win 270 electoral votes, the incumbent’s insistence that only massive fraud has prevented his reelection has led many to question the stability of American institutions.
But, is there anything Trump can actually do to change the result of the elections, or will his 18 Brumaire simply be an extended tweetstorm and scurrilous litigation?
Will Donald J. Trump be president on January 21, 2021?
No. Joseph Robinette Biden Jr. will be.
So what’s the point of this piece?
It’s that things could get really weird between now and then and Trump could spark a constitutional crisis. As Ned Foley, an expert on presidential election law and professor at Ohio State University, told GEN, “at the moment it doesn’t have any realistic chance of success for a variety of reasons… it is unsettling and unfortunate that it is occurring at all.”
The fear of legal scholars before the election was that Trump could use a narrow win by Joe Biden in a close election to challenge the results in a single decisive state. But 2020 did not end up being that close. While Joe Biden has won several states by narrow margins, awarding any of them to Trump would not shift the result. Instead, narrow wins by the Democrat would have to be overturned in several states. So far, Republicans are targeting six — Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin — in a desperate attempt to, at the very least, sow doubt about Biden’s legitimacy.
For this gambit to work, they’d need to make successful legal arguments to overturn the results in at least three of those states. As election law expert Rick Hasen put it in an article in The Atlantic, “Trump Needs Three Consecutive Hail Mary Passes.”
Can Republicans overturn the result in at least one state?
Nope, all of the Republican Hail Marys are likely to fall incomplete. As Hasen told GEN, “I’m disappointed that the Trump campaign is raising really weak claims and trying to delay the inevitable, but the fact that they are weak claims says something.” He added: “I’ve seen nothing so far that could be a legal basis for delaying the certification” of the results.
Hasen noted the case where Republicans have the best chance of succeeding is one in Pennsylvania where they are trying to void late-arriving absentee ballots that were postmarked on or before Election Day. The Trump campaign won a minor victory in court on Thursday to void some of these late-arriving absentee ballots. However, even if they gain a favorable ruling on the remaining ballots, it does not affect anywhere near enough votes to alter the outcome of the Keystone State.
Without any ability to delay the legal certification through the courts, Republicans who control state legislatures in states that Biden won could still try to elect competing slates of electors. But that would require them to muster majorities to usurp the will of the electorate in their state and to override state law that governs the selection of electors as well. While some noises have been made about this, including by state legislators in Pennsylvania and in a stray Trump tweet, legislative leaders have long been reluctant to take such an extreme step. And the Republican state legislative leaders in the Keystone State have firmly insisted that they will not override the will of the voters.
What about recounts?
Although several key states are close, with Biden clinging to leads of less than 15,000 votes in both Arizona and Georgia, the margins are too wide for recounts to alter the outcome. Statewide recounts can make the difference when candidates are separated by margins of hundreds of votes as notably happened in Florida in 2000 and in the Minnesota Senate race of 2008. Biden’s lead is far too substantial for a recount to make a difference.
Even Karl Rove, George W. Bush’s top strategist during the 2000 presidential campaign and recount and an unofficial advisor to Trump, said in a Wall Street Journal op-ed, “the president’s efforts are unlikely to move a single state from Mr. Biden’s column, and certainly they’re not enough to change the final outcome.”
So far, a half dozen states have certified their election results, but in the closest states, the certification deadlines aren’t until the end of the month. Georgia’s deadline to certify its results is on November 20 while Pennsylvania and Arizona have until November 23 and November 30 respectively.
So then why won’t Republicans accept Biden’s victory?
Donald Trump is a sore loser. Trump repeatedly complained that the Iowa Caucuses were rigged in 2016 after Ted Cruz edged him out in the first nominating contest of the 2016 Republican primaries. Even after winning the 2016 presidential election, Trump has repeatedly and falsely claimed that his loss in the popular vote was the result of mass voter fraud in California. The result is a cobbled-together ex post facto justification of why he really won the election and why it was stolen from him. But, in a party where Trump is the dominant figure even after his loss, Republicans worried about the political consequences of crossing him can’t fall out of line.
Will it ever end?
Not until January 6. While the electors cast their votes on December 14, they aren’t formally counted until a joint session of Congress next year, which will be presided over by Vice President Mike Pence. Even then, the results are likely to face a challenge. Florida Republican Matt Gaetz, an ardent Trump backer, pledged that he would challenge disputed electoral votes under the Electoral Count Act in an interview with Sean Hannity. This would require one senator to join Gaetz. If this happened, the joint session of Congress would break up and each chamber would have to vote separately to sustain or throw out the objection. Neither the House, which is Democratic-controlled, nor the Senate, which will have a narrow Republican majority at that point, is likely to entertain the objection.
This process happened in 2004 when then-Senator Barbara Boxer joined House Democrats to object to Ohio’s electoral votes because of irregularities in the Buckeye State. At the time, Democrats said they were not doing so to challenge the outcome but simply to draw attention to the need for election reform in the United States. The challenge was swiftly tossed out.
So then it’s over?
Yes. Even if Trump never formally concedes and never shows up to the inauguration, it’s over. Joe Biden is the president-elect, and the January 6 congressional vote will mark the formal end of the process affirming that.