The Speaker
Wednesday, 17 July 2024 – 19:39

What if Donald Trump loses but refuses to leave?

Many have compared today’s election to the 2000 presidential race, in which disputed votes in Florida meant that the Supreme Court stepped in, allowing a path for George W. Bush to become president, despite rival Al Gore receiving more votes. Yet, although this election could be decided in the courts, the disputed election of 1876 sheds far more light on what a disputed election might look like in 2020.

Should, as looks likely, Donald Trump loses the election, there are a number of scenarios in which he might try to ‘steal’ the election, with the president being transparent in his desire to launch any legal challenge against results that go against him.

Throughout the campaign Donald Trump and his campaign staff have continually repeated the phrase that “in a free and fair election, Trump will win”, laying the groundwork to despite any election result that does not favour the Republican candidate. It remains highly possible that Trump may dispute the votes in any state that he fails to carry, particularly any by a close margin that he had previously won in 2016, in an attempt to muddy the water and undermine the legitimacy of the result.

This would likely be followed by legal challenges, aimed at either recounting votes, discarding ballots or some form of litigation against election officials to further undermine the legitimacy of the election.

The most likely scenario is based on the huge early voting numbers across the United States, which suggests fewer voters will be casting a ballot on election day, which could mean that the early results favour Trump.

From the current projections, it seems as though Biden voters are favouring to vote early or by post, meaning that on election day, it is highly likely that far more Trump voters will be casting their ballots than Biden voters – whose marked and completed ballots will be sitting waiting to be counted later in the evening.

With many states not counting their postal and early votes until after election day votes have been counted (often in the days after the election), it is highly possible that Donald Trump could win a number of key states on election day, with many Biden-favouring ballots that could see him being declared the winner in the following days, not being added to the total for some days after the election.

In this case, it is possible that Donald Trump might declare victory long before every vote has been counted and try to prevent any further ballots from being counted. Speaking in North Carolina yesterday, he stated his desire to contest any results that do not go in his favour;

“We’re going to go in the night of, as soon as that election is over, we’re going in with our lawyers.”

For many months, Donald Trump and his campaign have attempted to undermine the legitimacy of early votes and postal ballots (despite the President voting by mail for his primary election) by railing against them in press conferences. It seems entirely possible that if he wins the plurality of votes in enough states on election night – before the Biden favouring postal votes are counted – he will attempt to prevent every from being counted.

This could see him declaring victory in the small hours of election night – at his 400 person election night party being held in the White House East Wing – without all the ballots being counted, hiding behind the fortified wall that he had erected around the White House compound before election day.

He could then launch legal challenges against postal votes being counted, safe in the knowledge that the Supreme Court is now 6-3 in the Republican’s favour and having just ruled against counting any postal ballots in Wisconsin that were marked on election day, but arrived to be counted after the polls closed.

Whilst there would probably be no legal reason not to count these votes, a highly politicised judicial system in the United States has been known to stretch the bounds of the law and interpret it to their advantage, meaning that courts which lean Republican could rule in the president’s failure, leaving many votes uncounted.

Harris County, Texas, ruled yesterday that they would count all drive-thru votes (yes, votes cast at drive-thru polling stations) that were marked before election day, breaking with the Supreme Court ruling in Wisconsin, however, the decisions of lower courts can usually be appealed to higher courts, with the Supreme Court being the United States’ highest appellate (appeal) court.

This could mean the decision of whose vote to count could be entirely decided upon by 9 people, three of whom hold their position because of Trump and a further 3 ‘conservative’ justices who typically vote towards Republican viewpoints.

Much like in 2000 therefore, the decision of whose vote should be counted will come down to the courts, and this could mean that the election is not decided in the ballot box, but in the court chamber.

Another potential scenario, but one that would be less likely to succeed is that Biden wins enough Electoral College votes on the night to carry a victory, but Trump disputes that he could ever have been beaten by ‘sleepy Joe’ and decides to challenge all the decisions. This is what he suggested in North Carolina yesterday.

Florida, one of the key states in this election, adds its early and postal votes to the total at the beginning of the night, meaning that it could be one of the first to declare and might be tipped towards Biden on these early votes. In this scenario, Biden might secure a narrow victory on the night, but the result will probably not be settled for some days, with Trump no doubt launching legal battles for recounts or crying fraud in some of these states. He may simply refuse to concede.

If he does refuse to concede, it is unclear what would happen. The peaceful transition of power is a hallmark of American democracy and relies fully on the tradition of candidates conceding, there are very rarely disputed elections. One of the most memorable was in 1876, where Democrat Samuel Tilden won more votes than his Republican rival in Florida, Louisiana and South Carolina (although there had been cries of suppression against Republican voters). A number of Electoral College delegates refused to cast their ballots for Tilden, despite him winning more votes, and eventually, a compromise was struck.

Nobody has ever heard of President Tilden, because despite winning the most votes in the key states, as well as the popular vote, a deal was stuck behind closed doors that handed the Electoral College votes to his Republican rival, Rutherford B. Hayes, in exchange for the north removing troops from the south, that had been stationed there since the US Civil War.

The result was that a president was elected who had received fewer votes and likely received fewer votes in the states they carried in the Electoral College; the will of the people was disregarded in favour of a political decision.

Whilst in 2020 America, you would hope, is very different from 1876 America, Trump has barricaded himself behind a fortified wall in the White House. Regardless of the will of the American people, if he had his way, Trump won’t leave.

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