How Trump could win

Sep 30, 2020

It is increasingly evident that Trump is determined to be re-elected, whatever the cost. At what point will referring to him as “leader of the free world” become an oxymoron?

The basic assumption of liberal democracy is that governments are chosen in regular and fair popular elections. In Australia we ensure this through the control of non-partisan election commissions and compulsory voting.

The United States has a ramshackle system which allows for considerable variation between states, and frequent allegations of obstacles being created to prevent people voting, whether through rules around voter registration or the availability of polling places. Already there are reports of intimidation by Trump supporters during early voting in Virginia.

When Americans vote for President they actually vote for a slate of electors whose votes will then be tallied to determine the state’s vote in the Electoral College, where each state’s vote equals its number of Congressional representatives. Hillary Clinton’s huge majorities in California and New York meant she out-polled Donald Trump nationally by three million votes but lost the Electoral College.

That result could be repeated this November. More frightening is the prospect that Donald Trump will find ways to circumvent losing the Presidency even if the majority for Biden is clear cut. His refusal to commit to accepting the result of the election is a clear indication that he is preparing for what would in effect be a constitutional coup.

For months now Trump has been casting doubt on the validity of mail-in [postal] votes, which are believed to favour Democrats, and which are likely to be far greater this year because of coronavirus. There is no evidence of widespread fraud in postal voting, anymore than there was evidence for Trump’s claim in 2016 that millions of fraudulent votes gave Clinton the popular majority.

But postal votes are often received and counted after election night; in the 2018 Congressional elections a number of districts were won by Democrats after the full count had been recorded, in several cases after long delays. In the 2000 Presidential elections it took a month for the election to be decided in favour of George W Bush after a decision by the Supreme Court to halt a total recount of votes in Florida.

It is possible that there will be no clear result this year on November 3rd and that hundreds of thousands of votes will remain to be counted in tightly contested states. At that point, Trump has indicated he will challenge any further counting and claim massive irregularities in postal voting.

Both parties are already preparing for complex legal challenges which could drag on for longer than the battle over Florida in 2000. In the end, these challenges can end up before the Supreme Court, which is why Trump is so determined to nominate a replacement for Ruth Bader Ginsburg.

But some Republicans are now talking of a further option which has never been used in American history, and that is to override the popular vote and refer the votes of states where there is a contested result back to state legislatures.

We take for granted that the votes of the Electoral College are based on the popular vote, and the Supreme Court has recently ruled that electors must support the candidate to whom they are pledged. But the Constitution says nothing about popular votes: in Article 2 it states that “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors…”

In a situation where there is enough doubt about the legitimacy of the popular vote a Republican-controlled state legislature could use this provision to choose its members of the Electoral College. This is not fantasy; it has already been mooted as a possibility by Republicans in Pennsylvania.

Pennsylvania has a Democratic Governor who would presumably veto any such move by the Republican legislature. But there are several close states—Arizona, Florida, Iowa—where both the governor and state houses are Republican controlled.

If Trump’s supporters believe that the apparent result is fraudulent the option of allowing the state legislature to handpick the Republican electoral slate will be tempting. It is increasingly evident that Trump is determined to be re-elected, whatever the cost. At what point will referring to him as “leader of the free world” become an oxymoron?

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