Could Trump overrule election defeat?

Would Donald Trump abide by the presidential election results if he lost?

Such a question has never before been asked about a sitting president, but the White House answer left the matter in doubt.

The real answer is both simple and complicated. Trump might refuse to accept that he had lost the election, but it’s not his decision to make.

The simple answer is that the Constitution says his term ends at noon on January 20, 2021. The president, Congress and the Supreme Court cannot change that rule.

But that leaves open who would become president at that moment. Whoever it is would have received electoral votes in the November 2020 elections. Each state gets a number of electoral votes equal to the number of its members of Congress.

Each state sets its own rules for its conduct of the presidential election. That’s why Maine can split its electoral vote by congressional district and use ranked choice voting. No other state does both.

If the votes are cast and counted correctly, state laws will award the state’s electoral votes. They will be reported to Congress. If a candidate receives 270 votes or more, he or she is elected and becomes president.

Suppose that Trump challenges the election in enough states to prevent Democrat Joe Biden from gaining 270 votes. Each state would decide on the challenge and award its electoral votes accordingly.

Did the Supreme Court decision in the 2000 election between Republican George W. Bush and Democrat Al Gore reveal that the Court could overrule a state’s count?

In its decision on the Florida ballot count, the Supreme Court said it acted exceptionally in determining that a state court was violating its own state’s laws. If states were careful in counting and in light of the criticism the Court received in 2000, it is highly unlikely it would do the same again.

In the 2000 case, the Court decided the election based on Florida alone. If a 2020 case involved multiple states in order to change the apparent result, it’s highly doubtful that there would be evidence proving that several states had violated their own law or the Constitution.

The Supreme Court would not determine if mail-in balloting was fraudulent. Each would settle the matter.

If nobody received 270 electoral votes, the Constitution provides a procedure for the newly elected House of Representatives to choose the president. Not the Supreme Court.

The House votes by states not members. Each of the 50 states gets one vote. California’s 55 representatives together get one vote just as does Vermont’s only representative. It takes 26 votes to win.

That could make the House elections especially important this year. Right now, Republicans control more states in the House than the Democrats. If that remained the case, House Republicans might decide the presidential election whatever the popular or electoral votes.

Maine now has two Democratic representatives. If there were a representative of each party, Maine could lose its state vote or become a pawn in a national deal. The Maine statewide vote could be ignored.

After the 2000 decision, Justice Sandra Day O’Connor, who voted on the Bush side, said the Court might have been wiser to decline jurisdiction over the dispute. Presumably, that would have left the decision to the House with 26 GOP states.

The situation arose in which neither candidate had enough electoral votes and the House decided after the 1876 election. The House appointed a special commission to make a deal and produce a decision. That worked and the GOP candidate who won had a smaller popular vote than his opponent.

If the election went to the House, it would be decided between January 3, when the new House is seated, and January 20. The Constitution allows Congress to pass a law to cover the situation if it could not agree by January 20. It has never passed such a law, making a timely agreement highly likely.

Trump complains that the counting will be slow using mail-in voting. Speed is not a requirement and it has often taken time to count all votes in elections from 1876 to 2000. The result has always met the constitutional deadline.

If Trump loses, could he mount enough credible challenges to put the election into doubt? That could depend on the size of a Biden win.

The possibility of such a state-by-state challenge strengthens the case for the National Popular Vote. States’ electoral votes would be cast for the candidate with the most votes across the entire country. The loser in the popular vote has won the presidency five times. This system would prevent that from happening again.

Gordon L. Weil

About Gordon L. Weil

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.