On October 26, 2020 I analyzed in a Facebook post a sinister, but not inconceivable way that Trump could steal the Presidential election. This article contains the text of the original post, followed by update. Special thanks to 270toWin, where you can generate your own electoral maps.
Let us consider a doomsday scenario, delineated recently by The Atlantic, and, perhaps, made even more possible by Amy Coney Barrett's confirmation to the U.S. Supreme Court.
Could Republican controlled state legislators bypass the popular vote counts in their respective states and appoint pro-Trump electors? The legal grounds for doing this are at least partially supported by the Supreme Court decisions of McPherson v. Blacker (1892) and Bush v. Gore (2000). The constitutionality of such a hypothetical "last-minute rebellion" could be supplemented by a theoretical Supreme Court decision (with Barrett on the court) against certain voting method or tabulation protocols.
In this doomsday scenario where the appointment of electors falls back to state legislatures, assuming that the electors are appointed along party lines, this result is map below. Minnesota and Alaska are greyed out as they have divided legislators, but regardless of which slates of electors they send, Trump still wins.
But, WAIT! Any such rebellion would require a change in state laws. There are four swing states where the Republicans control the legislators but the governor is a Democrat: Wisconsin, Michigan, Pennsylvania, and North Carolina. As pointed out by The Guardian, any such Republican initiated rebellion would almost certainly fail in these states as the Democratic governor would simply veto any legal changes regarding elector allocation. If Biden wins any three of these four states, he wins.
So even if Republicans implemented this strategy, it would be very unlikely to deny Biden a win. However, it could narrow his overall margin of victory with regards to red states where he is polling well in but the Republicans have the trifecta: Arizona, Florida, Georgia and Texas.
In that case, assuming those states become out of reach for Biden but Biden wins all four of the "divided government" swing states and Minnesota and Alaska go to whom they are expected to go to, he peaks at 294 electoral votes (see below). Still a win, but short of what many predictive models are currently showing.
And if any of those 4 are close, expect several weeks of litigation where Barrett's vote could make all the difference.
Where do things stand now?
Despite the nationwide anxiety exacerbated by the “red mirage”, Biden won the election with the exact same number of electoral votes that Trump won 4 years ago (306) including those from 3 of the 4 “divided government” swing states: Michigan, Wisconsin, and Pennsylvania, but not North Carolina. Biden also won two states where the Republicans control the governorships and state legislatures: Georgia and Arizona. Even if both states were to engage in some type of “red state rebellion”, Biden would still finish with 279 electoral votes.
Of course, numbers have no real meaning to Trump. If they did, he might be concerned about the multiple losses he’s racked up in court from making bogus charges of election fraud. William Barr’s recent statement that there is no level of fraud that would change the outcome of the election effectively undermines any further legal challenges that Trump and his circus of “attorneys” may try to pursue.
Trump has even said that he’ll leave office if the electoral college votes for Biden. Of course, Trump’s word is less reliable as a McDonald’s ice cream machine.
A state legislature’s post-Election Day substitution of its own preferences for those of voters would violate federal law. Even if circumstances delay the final determination of the results of a state’s election beyond Election Day, a state legislature may not usurp the electoral process under the pretext of declaring a failed election. Absent a true election failure—something the country has not experienced in modern history—federal law requires states to appoint electors on Election Day. A state legislature’s attempt to override the will of voters would also violate fundamental democratic norms, jeopardize the state’s entitlement to ensure that Congress defers to its chosen slate of electors, and raise significant constitutional concerns.
Has Trump finally run out of options? There are at least three other avenues that he may try to go down. However, the odds of success for these “strategies” seem about as high as getting struck by lightning 306 times.
His Republican allies in Congress could invoke the Electoral Count Act and challenge the legitimacy of state electors, but such challenges have never been successful. Democrats tried to invoke this act to overturn the outcomes of the 2000, 2004, and 2016 presidential elections. Each of these attempts failed miserably. Furthermore, Republicans would need to disqualify the electors of at least 3 states. Georgia, Arizona, and Pennsylvania would be the most likely targets, but if the Dems couldn’t pull off such a feat in 2016, what makes the GOP think they can do it now?
Then there’s the looming possibility of SCOTUS intervening. In this case, Trump may try to get SCOTUS to do on a national level what Pennsylvania refused to do - invalidate all the mail-in-ballots cast. I can’t fathom the legal rational SCOTUS could use to justify this. I suppose there’s a possibility that the conservative justices are so fervently loyal to Trump that they would be willing to destroy democracy to give him whatever he wants. Once again, 306 lightning strikes. Trump has acknowledged that his challenges may not even make it to the Supreme Court.
Declaring martial law also does not suspend the Constitution, and the military has no role in administering elections. Even if it did, it would not be able to "implement a national re-vote" because the right to vote is not specified in the Constitution or by a federal statute.
It seems that Trump’s best option at this point would be to accept the results and spend the next 4 years golfing, tweeting, and keeping his base energized, and then pull a Grover Cleveland and take another shot at the White House in 2024. And, yes, even if thrown in prison he could still run. As much as I hate to make this comparison, Eugene V. Debs ran for president while in his prison cell.
This leaves one final question: what if Trump flat out refuses to leave the White House? At 12:00 pm on January 20, 2021 Trump’s term is over with. Once Biden takes the oath of office, he is President of the United States and, hence, Commander-In-Chief in charge of all armed forces. While the odds of Trump being escorted out of the White House kicking and screaming are slim, it’s still a fun scenario to think about. And, it would make for a great meme. 😁