Will the US survive the next three months of Trump?

There’s a terrible prospect that few seem strong enough to contemplate. Sensible people who care about the future of the USA should hope that Joe Biden wins the vote on 3 November by a landslide.  Otherwise literally terrible outcomes are real prospects.

Credit – Unsplash

At the Republican National Convention in August Trump said: “The only way they can take this election away from us is if this is a rigged election.” For months Trump has been ranting about the dangers that the election will see high levels of Democrat voter-fraud, especially in relation to postal votes. When Trump has been asked whether he will accept the outcome of the election, he has said anything but yes.  Instead he has gone on his voter fraud rant.  The rhetoric about voter fraud seems to be increasing in frequency and intensity as Election Day approaches.

Some commentators say that Trump’s declaiming about voter fraud is just to give him an alibi if he loses.  Is it in his makeup, if there is an option, to accept defeat and exit stage left, content with a plausible alibi?  I hope so, but I don’t think so.

A few months ago, Trump also seemed to be working with the head of the US Postal Service, a Republican Party donor whom he appointed, to retard that service, which would slow down the processing of the votes cast by post by the electors of America in the Presidential election.

Oddly, when voters cast their votes in the Presidential election, the vote doesn’t actually count for Donald Trump or Biden.  Rather it counts towards electing members of an Electoral College in the voter’s own State or Territory.  It is the Electoral College which selects the President.  Each State has one Electoral College vote for each Congressional district – which is based on its population – plus two, one for each of its two Senators.  The system is winner-takes-all for that State.  So if the Republican popular vote in Florida is just one vote higher than the Democrat vote in Florida, in the ordinary course all 29 members of the Electoral College for Florida will count towards Trump.

However US law allows for selection of the members of the Electoral College for a State to be made by means other than by straight translation from the popular vote.  The ever so close 2000 election all came down to a few contested votes in Florida.  Even while litigation about the popular vote count was under way, Florida Governor Jeb Bush certified a list of members of the Electoral College who would support his brother, George W. Bush over Al Gore.  (That move was countered by the Gore camp, but the Supreme Court ruled in Bush v. Gore that a State can exercise the power to select the members of the Electoral College in much the way that Jeb Bush had done).

Commentators have warned that, if the vote is close on or soon after 3 November, but with Republicans leading in a few key States, Trump will try to have the counting of the popular vote either closed or delayed, and will take steps to have the Electoral College votes for those States given to Trump by their Republican-controlled State Senates. The Senates in the so-called swing States of Pennsylvania, Michigan, North Carolina, and Wisconsin are all controlled by Republicans.

In each of those States however, the Governors are Democrats.

The above scenario would be likely to see competing electoral returns for the Electoral Colleges for those States – one for each party; one completed by the State’s Senate and one by its Governor.  There is no clear, uncontroversial way to resolve that issue. Indeed, the possibilities of competing returns are even more complicated than that.  For example, although Arizona has both a Republican Senate and Governor, its Secretary of State, who oversees elections, is a Democrat, and could complete a return for the Electoral College from Arizona.

What will happen as 20 January approaches?  That is the date for inauguration of the President of the United States for the next four years.  Until then, Trump is without doubt the Commander in Chief of the US’s armed forces.  How will he use those powers if the Democrats say Biden won, and Trump insists that he did?  It might be very ugly.

US commentators point to ambiguous and inconsistent provisions in the US Constitution and the Electoral Count Act which might come into play in such a contingency.  Some analyse those provisions to conclude that Vice President, Mike Pence would have the whip hand.  Others say that Speaker, Nancy Pelosi would.  This in a nation which is bitterly divided and armed to the teeth.

While Democrats might have good reason for suspicion if the task of resolving the dispute was given to the Supreme Court – think of Bush v Gore and think of the Conservative bias of the Supreme Court –perhaps  better that than fighting in the streets, and an outcome which would make the US look like a tin pot dictatorship.

Unless Biden gets a landslide, we should be prepared to fasten our seat belts and – according to our inclination – adopt a praying or foetal position.

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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