(CBS) — President Trump has been asked more than once whether he would accept the results of November’s election. He won’t say. What he has done is repeatedly claim the anticipated surge in mail-in ballots will “rig” the voting process.
At issue is the peaceful transfer of power from an outgoing president to his successor — no matter how bitter the campaign. It’s a transition mandated by the 20th Amendment and a critical American tradition.
“I have to see,” Mr. Trump said when asked by Fox News’ Chris Wallace last Sunday whether he would accept the results. “No, I’m not going to just say yes. I’m not going to say no, and I didn’t last time either.” During a presidential debate with Hillary Clinton in 2016, Trump responded to a similar question from Wallace by saying, “I’ll keep you in suspense.”
Constitutional scholars and election experts contend that a president cannot dismiss the results of the election and hold on to power.
“It is not up to President Trump, and the country does not have to satisfy him that he has lost,” says Jonathan Turley, a constitutional law professor at George Washington University and a CBS News legal analyst. “The Secret Service on Inauguration Day is under the direction of the new president. Upon the oath of office taken by his successor, President Trump becomes a guest in the White House. If he remains, he becomes an unwelcome guest. If he refuses to leave, he becomes an arrested guest.”
However, Turley says, the president (and any presidential campaign) can challenge the result in a given state, though there are rigid time constraints. Requests for recounts are permitted in 43 states, according to the National Conference of State Legislatures. Some of those states require the margin between candidates to be below a certain threshold.
Here’s how the election works: Election officials in each state tally up the votes, and award electors to the presidential candidate who wins the most votes in their states. (Maine and Nebraska award their electors proportionally.)
According to the Federal Election Commission, states have until December 8 to report results. The state electors (the system established by Article II of the Constitution) then meet on December 14 to cast their votes. The new Congress meets on January 6 to certify them.
Such certification, absent any court orders, serves as the official acceptance of the election. This process is described by the 12th Amendment: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
Close elections are already worrisome for campaigns, and the pandemic will bring a unique set of challenges. Election officials in key battleground states are sounding the alarm that due to the likely unprecedented increase in absentee votes, results will take longer to count, so we’re likely to see Election Day stretch into an “Election Week.” The pandemic primaries offer some evidence of this: New York City officials have taken over a month to tally the votes from the June primary.
Mr. Trump has already raised questions about the legitimacy of the results in such a scenario, complaining the process will be rigged — though there is little evidence of fraud.
In defending Mr. Trump’s arguments, Republicans refer to instances where Democrats have challenged results of elections in the past, pointing to Stacey Abrams in Georgia’s 2018 gubernatorial race. Abrams argued that voter suppression efforts in Georgia led to Republican Brian Kemp as the certified victor and that the state had mismanaged the election.
Heading into the fall, the Trump campaign has criticized actions by states to expand absentee voting and decisions by some election officials to proactively mail absentee ballot request forms to registered voters. Mr. Trump has threatened to withhold funding from these states, even though the moves have been bipartisan. Earlier this month, for example, Iowa’s Republican secretary of state announced he would send absentee ballot request forms to all active registered voters.
“We don’t know what kind of shenanigans Democrats will try leading up to November. If someone had asked George W. Bush and Al Gore this same question in 2000, would they have been able to foresee the drawn out fight over Florida?” Trump campaign communications director Tim Murtaugh said in a statement to CBS News.
Even without a pandemic, in an election he won, Mr. Trump was claiming voter fraud had robbed him. Less than a week after he was inaugurated, he was tweeting demands for “a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and … even, those registered to vote who are dead (and many for a long time).”
He established a commission to look into the issue. The commission uncovered no evidence and disbanded.
Two years later, during the 2018 midterms, he tweeted, “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible-ballots massively infected. Must go with Election Night!” Both candidates won their races.
There is some concern among election experts about the impact of the president’s rhetoric. Given the political divide on mail-in voting and Mr. Trump’s previous comments, he could try to disparage absentee ballots if they don’t match up with the results of the in-person votes.
“The worst case scenario is that there is confusion or it is disputed on January 6 as to what the outcome is,” says says Edward Foley, a constitutional law professor at The Ohio State University.
Foley points to the election of 1876, which wasn’t decided until roughly 48 hours before Inauguration Day, as an example of one potential scenario. In that contest, neither Rutherford B. Hayes nor Samuel Tilden won the majority of the electoral vote because three states submitted conflicting results. And the Democratic House and Republican Senate disagreed on how to interpret the electoral submissions of the states in question.
So Congress appointed a special commission made up of five House members, five Senators, and five Supreme Court Justices, who ultimately decided on Hayes as the victor. (The decision had lasting consequences beyond electoral politics: Hayes, as part of an agreement with the opposing party to accept the results, agreed to remove federal troops from South Carolina and Louisiana, thus ending Reconstruction.)
Foley fears something similar in 2020: Election officials in a battleground state certify the final count, including vote by mail ballots, and declare Candidate X the winner for that state. But candidate Y could claim the popular vote was flawed because of suspicious absentee ballots, and convince the state legislature to appoint the state’s electors directly under Article II of the Constitution. Thus, there would be competing results from the same state. The statute conceived after the 1876 election is ambiguous as to what comes next, Foley says, and would require congressional fixes.
There is no constitutional mandate that the electors vote for the candidate who won the most votes in their states. In June, the Supreme Court ruled that states have the right to require their electors to vote for whoever wins their state. But only 32 states have such a requirement. Battleground states of Pennsylvania and Georgia, for example, don’t require it.
Campaign operatives don’t have to reach too far into history to find nightmarish scenarios about confusing election results. After weeks of legal battles, the 2000 election between George W. Bush and Al Gore ended with a Supreme Court decision. Up against the deadline for electors to meet and a divided nation, Gore conceded, instead of issuing further challenges.
“Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it,” Gore said in his concession speech. “I accept the finality of this outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”
There is also no legal requirement that a candidate verbally concede, but such acknowledgments are often done in service to unite the nation after a political campaign and to assist with the peaceful transition of power.
“Concessions are simply part of the culture of democracy or social practice,” said Foley. “The concession speech is the most important element of the election because every election has to have a losing side and a winning side.”
Transitions aren’t always smooth. Few were as bitter as Abraham Lincoln’s entrance to power after the election of 1860, when several states seceded from the Union before he was inaugurated. The transition from President Herbert Hoover to Franklin D. Roosevelt after the election of 1932 was particularly rocky and uncooperative, and occurred during a lingering financial crisis.
“Presidents have left unhappily, but they’ve always left,” says David Marchick, Director of the Center for Presidential Transition at the Partnership for Public Service. “We have had a lot of bad elections and bitter elections and the rule of law has always carried the day.”
First published on July 23, 2020 / 1:12 PM
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