We talk about the President’s suggestions that he might not respect the outcome of the election, and his team’s efforts to prepare some states to award him delegates, even if he loses the state… and how that could play out.
We’ll discuss what the endgame could look like between Nov 3 and January, and try not to speculate too much on what the outcome is likely to be.
The race is very much Biden’s to lose at this point. As of recording, 538 puts Biden up by 10+ points nationally, and by at least 5 points in the key battleground states of PA, WI, MN, MI, as well as up in FL, OH, and NC. It gives Biden an 85% chance of winning and a forecasted electoral vote haul of over 330 EC votes. Trump has tried a number of angles to try to reshape the campaign, and they all seem to be falling flat. Biden’s lead is actually growing.
It’s looking pretty bad for the President, who is facing likely prosecution for at least crimes in NY (and possibly nationally, depending on whether there is any pardoning mumbo jumbo between him and Pence), as well as hundreds of millions in debt coming due, where he does not have the cash to cover it amidst his money-hemorraging businesses.
Even before getting ill with COVID-19, the President looks in a pretty desperate situation.
And he’s acting desperately. When asked if he’ll commit to a peaceful transfer of power, he repeatedly chooses not to, claiming he’ll need to see what the results look like. He’s already claimed that the election will be fraudulent, so he’s setting himself up to not concede.
He also recently told the world that he asked AG Bill Bar to simply arrest Biden along with Obama and Clinton. He claims to have “plenty” to arrest them for.
Trump has repeatedly claimed that the 2020 election will be “The most fraudulent in American history,” and claimed similarly that in the 2016 elections, 3-5 million votes were illegally cast (by… illegal immigrants? Probably something like that) for Hillary Clinton. He claims that mail-in ballots are very prone to fraud and that the Democrats and/or foreign powers will stuff the ballot boxes with fake votes in order to steal the election. He’s said out loud that he wants to shut down mail-in voting by denying emergency funding to the USPS.
Most GOP leaders are staying mum on the issue nationally, while actually encouraging their voters at a state level to mail their ballots to support the President.
Democrats at all levels are repeating that there is no evidence of fraud, either past or present.
This one’s straightforward. The President commissioned a team to investigate his claims of voter fraud in the 2016 election (which Trump claimed there was). They did not find it. The FBI made a similar study and did not find any evidence of widespread fraud in past elections, and certainly not enough to have shfited the election, even at the thin margins of 2016.
https://apnews.com/article/f5f6a73b2af546ee97816bb35e82c18d
In an earlier episode we analyzed PILF’s claims of mail voter fraud in Virginia and found the total potential impact to be tiny.
The claims that there is any risk of voter fraud are unsupported. The President therefore has no justifiable reason to suggest stopping mail-in voting, throwing out ballots, or otherwise contesting the results.
There is a credible anecdote that 9 military ballots were improperly discarded, 7 of which were for Trump. However, claims that ballots are being thrown out en masse, or (as the President says), “found in a river,” or as Charlie Kirk claims, being thrown out at dorms, and all sorts of other made-up BS, are made-up BS, according to election officials.
https://www.msnbc.com/rachel-maddow-show/about-those-ballots-trump-said-were-found-river-n1241851
According to the PA Secretary of State, the incorrectly-discarded ballots were a mistake from improper marking on the envelops, but should have been sealed and stored, the employee who threw them out has been fired, and that election employees have been educated to not let it happen again.
For those wondering: “why does Trump really want to stop mail-in voting?” Biden voters are more likely by a margin of 2:1 to use mail-in voting, likely because they are far more likely to see the Coronavirus as a real threat (though is that going to change since the President got sick? Who knows). So it’s a voter suppression tactic that should help the Republicans where it works.
What could happen if Trump contests the election?
The only real starting point is to claim that the election results are illegitimate in certain states. At this point it seems likely. What could happen then are two primary paths;
- Claim the results in certain states such as Pennsylvania are tainted and that the state legislatures (in PA, it’s Republican) take advantage of Constitutional ambiguity to hand him their electoral votes, doing this enough to get a majority
- Claim that the results are invalid and have a legal fight that is long enough to throw the Electoral College meeting in December into disarray so that nobody gets a majority of EC votes, and then hope that Congress makes him president
Both would require a big series of court battles. Trump has already brought together a team of lawyers ready to contest the election and either bog the results down in courts or try to get them thrown out.
Trump’s campaign team has already gone to the Pennsylvania Republican party to suggest that they might ignore the election results if they are “suspect” and just vote to hand Trump their 20 electoral votes anyway. https://www.inquirer.com/politics/pennsylvania/spl/pa-popular-vote-presidential-election-legislature-bypass-donald-trump-20200925.html
PA makes a lot of sense as it seems like a bit of a linchpin: it’s most likely that if Biden has a slim margin of victory, PA would make the difference as a large state with a margin of victory likely lower than his victories in MN, WI, MI.
If Trump manages to convince state legislatures to give him electoral votes, you’d actually have a constitutional crisis in a number of states. In the case of PA, for example, Democratic governor Tom Wolf would veto any bill, but a nonbinding resolution could get passed, and it’s just not clear exactly how the EC electors would be allocated. In 1872, 3 states sent competing groups of electors to the Electoral College… we don’t want to see that.
If Trump simply bogs down the results in the state courts by contesting election results, it’s likely the courts would try to get to a quick ruling–those who don’t like the rulling’s result would likely appeal their way up to the Supreme Court, as happened in 2000. Erik thinks it’s likely that the Supreme Court is going to be where the end game plays out. It’s slightly concerning that there are only 8 folks on the bench right now, but it seems highly unlikely that any 4 of them are more interested in helping Trump steal the election than in preserving the democracy. But, y’know, sucks that it’s likely to end up there.
If somehow there is so much chaos and confusion that some states send free electors (not dedicated to either candidate) and nobody has a majority going in, anyone could come out the victor. Or the free electors may say, “heck no, we’re not deciding this on our own,” and vote for some random 3rd person (let’s just say Tom Hanks) in order to prevent a majority from forming. If that happens, it goes to the House of Representatives.
The House votes by state delegation–so there are 50 votes, one per state, rather than 435. Right now, Republicans have majorities in 26 of those 50 delegations, so Trump may be eager for this outcome.
How to save this off
If Biden wins by large margins in many states, either of these paths get very hard. For example if he takes PA, MI, WI, MN, FL by very large margins, and also takes OH, NC, GA, AZ, then any legal challenges to try to scoop up electoral votes (or blow up enough states’ electoral votes into chaos) would be an extraordinarily tall order: Trump would have to fight in many states, and the bigger the margin of victory for Biden, the less credible the challenge is in each state.
So any plan to challenge the election outcome really depends on a close election. No doubt Trump will scream fraud no matter the outcome (even his own electoral victory), but this isn’t a case where Trump can just choose not to go home.
We’ve heard some mutterings that Trump might launch a civil war or otherwise use the military. Military leaders have already made clear they are staying out of things. It’s sad that they need to, but it’s an incredible blessing Americans enjoy that US military has a steadfast custom and culture of being apolitical.
While there may be street fighting due to passions getting hot or Trump just otherwise flailing, there will not be a civil war to determine who becomes President of the United States.
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