How
Far Could Republicans Take Trump’s Claims of Election Fraud?
November 10, 2020
Among the “firsts”
associated with the 2020 election, the most norm-shattering of all will be if
the candidate who lost never concedes to the one who won. After the major news
outlets called the election for Joe
Biden on Saturday, Donald
Trump switched from insisting, “I won this election, by a lot,”
to claiming that his loss was due to election fraud. Trump’s conduct seemingly
has not fazed President-elect Biden as he proceeds into the transition; at the
least, it was not a surprise, since Trump spent months making ominous and
ungrounded predictions of voter fraud. There is, however, a limit to what
Biden’s team can do, particularly in national security, if the Trump
Administration holds up a transfer of power, as the head of the General
Services Administration has done thus far by not formally recognizing the
transition.
As
if to fill the void, on Sunday, former President George W. Bush, the previous
Republican in the highest office, issued a statement pointedly supporting the
legitimacy of the election results. “The American people can have confidence
that this election was fundamentally fair, its integrity will be upheld, and
its outcome is clear,” Bush said. Twenty years ago, it was Republicans who were
outraged that Al Gore retracted his initial concession to Bush, refused to
concede when Bush was narrowly ahead during recounts in Florida, and then
fought Republican state officials’ move to certify Bush as the winner, by suing
to have the recount continue. The Supreme Court finally ordered an end to the
Florida recount, in Bush v. Gore, on December 12th, 2000, and Gore
conceded the next day. Now Democrats are calling upon Republicans to accept
that Biden has won, and Republicans are looking to legal remedies to try to
flip the result. But, because Biden’s win does not hinge on the results in one
state, as Bush’s did, and because the margin of victory is not as thin, Trump’s
legal remedies are far less realistic than Gore’s were.
Senate
Majority Leader Mitch McConnell said, on Monday, that “President Trump is a
hundred per cent within his rights to look into allegations of irregularities
and weigh his legal options.” Since Election Day, Republicans have pursued
a smorgasbord of lawsuits,
but they have been dismissed or are otherwise unlikely to succeed. The Trump
campaign filed multiple suits in Pennsylvania, Nevada, Michigan, Georgia, and
Arizona, generally alleging fraud, or demanding that states stop counting
ballots or allow closer observation of the counting. Though some cases are
ongoing (for example, a lawsuit to compel Pennsylvania to impose an earlier
date for voters’ proof of identification), the vast majority were quickly dismissed
for lack of evidence.
One
case that Republicans began pressing before the election has gone to the
Supreme Court. On September 28th, the Pennsylvania Republican Party challenged
the state Supreme Court’s decision that, notwithstanding the Election Day deadline
set by the Pennsylvania legislature, mail ballots postmarked by that day but
arriving up to three days afterward were to be counted. The case has already
produced three orders from the Justices: first, in mid-October, the Court
deadlocked 4–4 on whether to lift the state court’s order while the Republicans
prepared a request to decide whether a state court may alter the state
legislature’s deadline for receipt of ballots. The Court therefore left the
extended deadline in place for the election. Second, days before the election,
the Court refused to expedite its consideration of the Republicans’ petition,
again, leaving the extension in place. And, third, three days after Election
Day and before Biden was declared the winner in Pennsylvania, Justice Samuel
Alito ordered County Boards of Elections to comply with existing state guidance
that mail ballots received after Election Day should be segregated and “if
counted, be counted separately.” Had Biden’s victory ended up depending upon
Pennsylvania, or, more precisely, on the mail votes that arrived after Election
Day, then a Supreme Court decision on whether those votes must be disqualified
would have been relevant to the election outcome. But the fact that Biden’s win
did not hinge on any one state deflated the potential for the Supreme Court to
decide the election.
The
Court could still agree to hear the case, in order to decide whether the
Constitution’s provisions that “the Times, Places, and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof,” and that “each State shall appoint” electors “in
such Manner as the Legislature thereof may direct,” prohibit state courts from
modifying state legislatures’ election rules. Even if the answer can’t affect
this Presidential race, the question could recur in future elections. But the
Justices might bear in mind that any decision could still influence the
perceived legitimacy of this election: even hearing this case would fuel
Republicans’ claims that the election procedures were awry, while refusing to
hear it would seem to Democrats a vindication of Biden’s victory.
Prominent Republicans
have largely refrained from acknowledging that Biden has won, and from
challenging the President’s allegations of fraud—with the notable exceptions of
Representative Will Hurd and Senators Mitt Romney, Lisa Murkowski, Susan
Collins, and Ben Sasse, who each publicly congratulated Biden. Some Republican
leaders have urged rejection of the results. On Sunday, Senator Lindsey Graham
said, “Do not concede, Mr. President. Fight hard.”
But
what would it mean to fight hard, when Trump’s barrage of litigation is
extremely unlikely to change the outcome? Graham has laid some groundwork for
the strategies that might remain even after rebuffs both at the polls and in
court. In an interview with Sean Hannity on Fox News last Thursday, as it
became clear that Biden would soon be declared the winner, Graham signaled his
approval of the idea that Republican-controlled state legislatures might
appoint electors who would cast votes for Trump, even though Biden won those
states’ popular votes. Referring to Article II of the Constitution, which
provides that a state “shall appoint” its electors “in such Manner as the
Legislature thereof may direct,” Governor Ron DeSantis, of Florida, also urged
people in battleground states to push their Republican legislatures to override
popular-vote results.
It
would be outlandish for a state legislature to deviate from the wishes of the
state’s voters. But states have the power to determine that fraud affected the
vote count and choose Presidential electors who do not reflect that supposedly
faulty result. States with Republican legislatures that could, theoretically,
override a popular vote in favor of Biden include Pennsylvania, Georgia,
Arizona, Michigan, and Wisconsin. This possibility remains far-fetched in any
of these states, perhaps particularly Pennsylvania, where last month, the
Republican majority leaders of the state Senate and House wrote, in an op-ed, “The only and exclusive way
that presidential electors can be chosen in Pennsylvania is by the popular
vote. The legislature has no hand in this process whatsoever.” The majority
leaders reaffirmed that commitment on Friday. But, on Tuesday, a group of
Pennsylvania lawmakers announced that it wants the legislative committee to
conduct a “comprehensive examination” of “irregularities and inconsistencies”
in the election “prior to the certification of the election results and the
empanelment of Pennsylvania’s electors to the Electoral College.”
If
several states’ electors were to diverge from the popular vote, in theory, on
December 14th, the Electoral College vote could result in a win for Trump, and,
on January 6th, the newly seated Congress tabulating the electoral votes could
declare Trump reëlected. Alternatively, neither candidate might garner a
majority of the electoral votes, in which case the Twelfth Amendment to the
Constitution says that “the House of Representatives shall choose immediately,
by ballot, the President.” Because Democrats retain a majority of the House,
one might assume that would mean a Biden Presidency. But the Twelfth Amendment
specifies that each state delegation gets one vote, meaning that a state that
has more Republican than Democratic representatives would likely vote for
Trump. Though there will be more Democratic than Republican members, there will
be more Republican than Democratic state delegations in the House. Trump could
well be the House’s choice for President.
Yet
another disastrous situation would be if some states’ officials split and
choose rival slates of electors. This would leave Congress to decide which of
the electoral votes from those states to count. And, even though Trump will
likely fail to convince courts to credit his allegations of election fraud, he
could still press his fraud claim to Congress and urge its members to
disqualify some states’ electoral votes. Given Trump’s continuing hold on
Republican lawmakers, it appears not out of the question that they would take
such an appeal seriously. And, as I wrote last week, if Congress cannot
ultimately agree on how to count the electoral votes, it is unclear how the
Presidential election would be resolved. Even if the American people wanted the
Supreme Court to settle it, the Constitution and other laws would not provide
clear means for the Court to decide.
None
of these doomsday scenarios are likely yet. Perhaps Republicans are merely
tiptoeing around Trump for the time being, waiting for his lawsuits to fizzle
out, and expecting them to show the fraud and illegality claims to be
unfounded. But the more time that passes without Trump conceding, and without
Republican lawmakers publicly acknowledging that power will indeed transfer to
Biden as a result of the election, the more it is imaginable that a portion of
Congress may be persuaded to use the fraud claim to decline to count some
electoral votes for Biden, come January 6th. In the meantime, on Monday,
contrary to the long-standing practice of the Department of Justice, Attorney
General William Barr explicitly authorized federal prosecutors to investigate voting
fraud in the 2020 election “prior to the certification of elections in your
jurisdictions.” (Barr’s decision prompted the resignation of Richard Pilger,
the director of the Department’s Election Crimes Branch.) The move, coming at
this delicate time, seems designed to improve Trump’s chances of influencing
states’ certification of the election results, their appointment of electors,
and Congress’s counting of electoral votes. It became particularly alarming
when followed by Secretary of State Mike Pompeo’s statement, on Tuesday, that
“there will be a smooth transition to a second Trump Administration.”
As
we have learned in the past four years, it was not one aberrant President, by
himself, but rather Trump’s hold on important Republican Party officials, that
enabled the proliferation of chaos and erosion of norms. Even now that Trump
has lost the election, the death grip will perhaps be slow to loosen because of
his undeniable popularity with Republican voters. And Republican leaders may
expect to be rewarded rather than punished by their constituents for fighting
between now and January to prevent a Biden Presidency. This form of democratic
responsiveness, in which leaders need only to appease adherents of their own
party, underscores the difficulties that Biden will have in fulfilling his
self-proclaimed mandate to unite the country. There are still significant
partisan hurdles to clear before Biden is inaugurated, even though the voters
have democratically chosen him as their next President.
