WASHINGTON (CN) — A test of a democracy is its ability to transition power peacefully and in one month, the United States will, as it has done for more than two centuries, test the mettle of its Constitutional traditions. But where distrust is regularly broadcast by the president over that very process, a key question emerges: what happens when the rules are flouted?
President Donald Trump has made flouting norms a cornerstone of his tenure and it has been a factor that has both drawn voters in and pushed them away. And among his most divisive statements are those he has made on the prospect of refusing election results this November if they aren’t in his favor.
Since 2016 during his final debate with opponent Hillary Clinton, he quipped if he were to lose that year, it was merely proof the election was “rigged.”
He has since doubled, tripled and quadrupled down over the years with a seemingly endless stream of comments or tweets entertaining the idea of extending his constitutional stay. Although Trump has dismissed his commentary as jocular, this particular norm-busting is unprecedented in modern memory.
But laws and conventional social mores are not the same.
No matter how inflammatory or unsettling to some Trump’s remarks might be, election and constitutional law experts rely on the devil in the details.
While the Constitution leaves some matters murky and to be sure, there are legal conundrums America has yet to unravel that may very well come up in the months ahead, in terms of what the Constitution purports to preserve of democracy, lawmakers and election experts alike agree: The guardrails created centuries ago remain ready to withstand a challenge from any comer with autocratic aspirations.
“It’s important to take stock of the moment we find ourselves in. There’s been a necessity to dig into these questions and understand how things could work after Nov. 3 and in a moment that feels like it is fairly unprecedented in this country,” Vanita Gupta, president of the Leadership Conference on Civil and Human Rights said during a teleconference hosted by the National Task Force on Election Crises this week.
The task force is comprised of over 50 election law and civil rights experts whose sole mission is to help elucidate understanding of what the Constitution deigns for a peaceful transition of power and how disputes this year can be handled in a way that is legal and solidifies, not undermines, public confidence.
Since Covid-19 gripped the U.S. and catapulted mail-in ballots as the preferred and recommended way to vote amid the pandemic, Trump portends daily a looming and inevitable fraud, but without evidence for his claims.
Mail-in voting is a cornerstone of America’s democracy and assessments conducted by election commissions as well as the U.S. intelligence community have confirmed claims of widespread fraud are unfounded.
During a September congressional hearing, FBI director Christopher Wray was unequivocal that the mail-in method was secure. What is dangerous, he said, is the “steady drumbeat of misinformation” that creates widespread cynicism.
It is those reverberations and yet foretold critiques from the White House to the legitimacy of this year’s election that are expected to grow louder during a crucial window ahead. That time period is the space between Election Day and the next president’s inauguration, whomever that may be.
Litigation has been mounted to curb or restrict altogether mail-in-voting access by Republican state legislatures in dozens of states including battlegrounds like Wisconsin and Pennsylvania.
“Here’s what we know will happen: Trump will say a lot of nonsense,” Joshua Geltzer, executive director and visiting professor at Georgetown Law’s Institute for Constitutional Advocacy and Protection said recently of potential delays ahead. “The urgency of now is helping Americans to understand there is nothing to worry about with mail-in ballots. There is nothing, no reason to doubt election results if we don’t find out on election night itself. And if not, the courts can handle it.”
The Trump administration has been on a litigation losing streak when it comes to restricting ballots even when arguing before Trump-appointed judges, Geltzer noted.
“It’s important to remember Trump doesn’t get unilateral delay powers here. Courts will sometimes move slower than we would like and we know campaign related litigation needs to move quickly. But Trump doesn’t get to unilaterally slow things down,” he said. “He doesn’t get to slow down a calendar set by federal law under the shadow of the Constitution.”
Even with delays in play, asking whether Trump will accept the results in November is a question arising from faulty framework to start, Gupta added.
“What is important about the way federal law is in place and the way it is shored up to prevent interference is really important. What is important to say over and over again is that the candidates themselves have almost no role in this part of the process,” Gupta said. “While people may make claims to powers or threats for what they may or may not do, the reality is, the candidates don’t have power to determine the outcome of this election. Neither the president nor Biden can decide this.”
This part will be left instead to voters, the local boards of election that count the ballots and state authorities who verify and certify the final tallies.
“There are scenarios deep in the rabbit hole of possibilities and even worst-case scenarios that can really cause great alarm, but there are rules and procedures that govern what happens. While a lot about our system is complicated, this isn’t a free-for-all and the rules don’t change cycle to cycle. They’re not idiosyncratic from candidate to candidate,” he said.
But what happens if Trump declares victory while mail-in ballots are still being counted and or if the president refuses to accept the results of the popular vote after counts are done? Is a constitutional crisis inescapable this November?
“In a sense, the Constitution is not in crisis. The country is in crisis,” Representative Jamie Raskin, a Maryland Democrat said in a phone interview this week. “The Constitution is just there for us to get through it.”
Raskin is a constitutional scholar who has taught for over two decades at American University’s Washington College of Law. He chairs the House Subcommittee on Expedited Procedures, a body created in 2019 to evaluate legislation that may be fast tracked through Congress. He also serves as chairman to the House Subcommittee on Civil Rights and Civil Liberties.
“Essentially, the president’s determination is to relocate the election from the field of popular votes to electoral college votes to friendly institutions. In this context specifically, Republican state legislatures and then the Supreme Court and then the House of Representatives meeting in the context of a 12th Amendment contingent election,” he said.
The Electoral Count Act of 1887 sets a 35-day deadline to tally votes before a “safe harbor” period kicks in and the process of appointing presidential electors must begin. This year that date is Dec. 8.
Then six days later on Dec. 14, once electors are verified by state officials, it goes to Congress to approve. If there is controversy surrounding an appointed elector’s credibility then its Congress that decides, who, if anyone, will be permitted to enter their state’s choice.
If Trump is “hellbent” on refusing a Biden victory in the popular vote and the electoral college, Raskin said, then that means the administration will likely “forget about blue states or red states.”
“They will just go to the swing states where Biden wins the popular majority but Republicans control the legislature,” Raskin said. “The real electoral college prank here would be to get a state legislature to nullify a popular vote by repealing the existing state law and punitively replacing that law with a new one simply appointing elector for Trump or, alternatively, just withholding any electors at all.”
Whether they can do that isn’t totally clear, Raskin said.
“We don’t have any kind of decisive legal authority. The Supreme Court has never upheld a state legislature nullifying a popular result under existing law and simply replacing it with the appointment of particular electors,” Raskin said. “There was some intimation in Bush v. Gore. The state legislature had plenary power, meaning absolute, but this maneuver raises profound legal questions that were never debated in Bush v. Gore.”
Those questions may involve equal protection rights under the 14TH Amendment or due process claims.
GOP state legislatures like in Pennsylvania, Raskin said, are presently operating on the assumption they can do “whatever they want” with the presidential election and electoral college without regard for their own state’s constitutional framework.
“There are a number of possible legal problems but if they were somehow able to get away with that, you would undoubtedly have rival electoral college slates being sent in to Congress,” he said.
From there, the Constitution dictates the vice president reads the names of the electoral college slate votes. With Pennsylvania as the example here, it would be votes from the Republican Legislature and the Democratic governor. The vice president, in this case, Pence, would have to choose who to side with.
“True to form, he would probably choose the GOP slate and at that point, Democrats could challenge and the House and Senate would have to resolve to both chambers to consider the challenge,” Raskin said.
Even if there is a conflict or objection over the reading or counting of votes, both sides still have some leverage to negotiate, he added: If no electoral college votes are cast by Jan. 20, 2021 and the presidency is vacant, then under Constitutional succession, Speaker of the House Nancy Pelosi would become president.
“There would obviously be a lot of pressure to come to terms with an honest reading of the electoral college votes,” Raskin said.
Yet another possibility is if Republican state legislatures withhold votes altogether, invoking claims of chaos or fraud surrounding the count.
That strategy could deny Biden a majority simply because there is a refusal to turn over a pro-Biden slate. It might be contested or even resolved beforehand but if not, then the House of Representatives enters into a contingent election as dictated by the 12th Amendment.
In that instance, one vote per state is cast.
“Republicans have 26 state legislatures and Democrats have 22 and two are tied but you need 26 to win,” Raskin reflected Friday.
If only one party manages to control both the Senate and House, then the outcome is clear: they will likely stick with their party’s nominee.
But if the House is still majority-Democrat and the Senate is majority-Republican and no candidate has a clear majority of electoral votes, the 12th Amendment says Congress decides.
According to the National Taskforce on Election Crises: The House of Representatives chooses the president from among those who received the most electoral votes. The Senate then chooses the vice president from among the two candidates who received the most electoral votes for that position.
“Importantly, although each Senator has one vote in the vice-presidential election, in the House the votes shall be taken by states, the representation from each state having one vote. An absolute majority of House congressional delegations from each state — 26 — is needed to elect a president. Likewise, an absolute majority of Senators — 51 — is needed to elect a vice president,” guidance from the taskforce states.
To avoid a convoluted scenario like this, it would help if more Americans cast their ballots in person though it is a challenge and for some, an impossibility, during the pandemic.
“There are countless ways you can disrupt, sabotage or thwart an election. I’m worried about all of them,” Raskin said. “To me, democracy is the most precious thing that we have as a society. It’s extremely rare in the history of the world to have democracy.
“It’s much more common to have authoritarians, dictatorships and royalty. We’ve got a precious thing that is being endangered by progressive efforts to discredit the election and denigrate democracy itself. We’ve got to uphold it against everything — whether it is violent attacks at the polls or efforts to close down ballot drop off boxes like the order handed by [Republican Governor] Greg Abbot in Texas or if it is sabotage by Donald Trump’s autocratic admirers around the world.”