We need to plan now in case Trump loses in November — but refuses to leave the White House
By Thom Hartmann/ AlterNet/ March 13, 2020
The Constitution provides a couple of mechanisms for Trump to lose the 2020 election—both the popular vote and the Electoral College—and still hold the office of president for a second term.
It’s keeping historians and constitutional scholars up at night and, based on offline conversations I’ve had with D.C. conservatives I know, is something the GOP and partisans within the Trump administration are already discussing.
Bill Maher and I have been repeatedly asking a question on the air that the rest of America’s media seemingly thinks is too far out to even consider: What if Trump’s lawyer Michael Cohen is right, and after losing the 2020 election Trump refuses to leave office?
On its surface, the question seems silly—nobody who has lost both the popular vote and an uncontested Electoral College vote has ever gone on to become president, right?
Unfortunately, it’s wrong. The GOP has done this before, an action that included multiple threats of violence and bloodshed on the floor of Congress, leading Democrats to cave in even though their candidate won the popular vote and had 22 more electoral votes than the Republican (who became president).
Additionally, the Constitution says that if a presidential election really turns into a mess with multiple claims of fraud or some other crisis, the president is selected by the U.S. House of Representatives.
While that sounds like good news, with Democrats controlling the House today, each state’s delegation only gets one vote—50 votes from 50 states determine the president. And a majority of the states are Republican-controlled, so this remedy would put Trump into office regardless of how badly he lost the popular vote, the electoral vote, or both.
So, how did we get here, and what are the scenarios the Republicans I know are considering?
First, some background.
Swing States’ Legislatures Decide (and Trump Wins)
Article II (the Executive Branch), Section 1, Clause 2 of the Constitution (and the 12th Amendment, which revises it) gives solely to the legislature of the states the power to control the electors who will decide the presidential election.
It does not say that the people of the states shall vote for their choice of president and then that vote shall be reflected in the states’ electoral votes. It’s entirely up to the legislature (without any input from the governor). “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” is how it appears in Article II of the Constitution.
Every state’s legislature generally directs all their electors to vote for the candidate who won the majority in the state (Maine and Nebraska are the exception, allowing for split decisions), a system we call “winner takes all,” but a state’s legislature (its combined house or assembly and senate, where each member has one vote) can, by simple majority vote, direct its electors to vote for any candidate they want, even over the objections of their governor.
In the 2000 election, for example, when the Florida Supreme Court had ordered a complete recount of the vote for president in that state, Republicans were concerned that a full, statewide recount would give Al Gore the presidency.
(And, indeed, that’s what would have happened, as a consortium of newspapers including the New York Times discovered a year later when they fully recounted the Florida vote and found that Al Gore won Florida—a fact largely buried by the papers because it was published just two months after 9/11 and no newspaper wanted to challenge the legitimacy of Bush’s presidency during one of the nation’s most severe times of national crisis since Pearl Harbor.)
Thus, had the U.S. Supreme Court not intervened to stop the Florida recount, the Republicans in the Florida legislature fully intended to hand the Florida electoral college vote—and, thus, the White House—to George W. Bush, even if a recount showed that Al Gore actually won the vote.
The 2000 Dress Rehearsal
As David Barstow and Somini Sengupta wrote for the New York Times on November 28, 2000, “The president of Florida’s Senate said today that Gov. Jeb Bush had indicated his willingness to sign special legislation intended to award Florida’s 25 Electoral College votes to his brother Gov. George W. Bush of Texas even as the election results were being contested.”
Barstow and Sengupta added that “talk of a special legislative session continued unabated here today as local Republicans fretted about the possibility that the justices on the Florida Supreme Court, all appointed by Democrats, might uphold the challenge by Vice President Al Gore [for a statewide recount], ultimately awarding him the state’s electoral votes.”
Bluntly, they noted, “The driving force behind the calls for a special session is the Republican desire to use the Legislature to trump the state’s Supreme Court, should the need arise.” In other words, should the recount discover that Gore had actually won.
If the Florida legislature, then firmly in GOP hands, had voted to require all their electors to cast their votes for Bush (or appoint new ones who would), the recount would have been irrelevant; the Constitution gives that power exclusively to the state’s legislatures.
Thus, through simple brute force, if Trump, Fox News and Limbaugh, et al, were to loudly claim that there was “voter fraud” in any or all of those states and succeed in casting doubts about the integrity of an election that would put a Democrat in the White House, the manufactured conflict could be resolved and the election given to Trump by one or more state legislatures as Florida threatened to do in 2000.
The GOP and right-wing radio and TV have been preparing this ground for the better part of two decades, constantly harping on non-existent voter fraud by undocumented Hispanics and African Americans who, as Trump alleged, go from polling place to polling place by bus to double- or even triple-vote.
While there’s absolutely no evidence for any of this—despite the Bush administration spending tens of millions of dollars, enlisting all 93 U.S. attorneys nationwide, and examining over 840 million votes and finding fully 35 examples of illegal votes nationwide (and none by “illegal Hispanics”)—this “voter fraud” fantasy is widely believed among the Republican electorate and could be used by a state’s legislature to flip a close vote.
The U.S. House of Representatives Decides (and Trump Wins)
Another way Trump could lose both the popular vote and the uncontested electoral vote is found in the election of 1876.
Democrat Samuel Tilden won the popular vote nationwide but, with 184 electoral votes, was one vote short of the necessary 185 electoral votes to become president.
Republican Rutherford B. Hayes not only lost the popular vote but had only 163 electoral votes.
Ohio’s Republican Congressman James Monroe (not related to the president of generations earlier of the same name) wrote the definitive summary of that election and how it played out in Congress, a narrative he published in the Atlantic in October 1893.
Pointing out that “the votes of Florida, Louisiana, Oregon, and South Carolina, with an aggregate of 22 electors” would turn the election to either Hayes or Tilden, Monroe (who was there) wrote, “From the States just named there were two sets of returns, one favorable to General Hayes, the other to Mr. Tilden.”
The dispute had to do with three of those four states then being occupied by the Union Army (this was just 11 years after the Civil War ended, and Reconstruction was in full swing). At the same time, the Klan was riding high in all four states.
Formerly enslaved African Americans were trying to turn out large numbers of voters for the Republican candidate, but there was also widespread Klan activity suppressing that black vote. On the other side, Democrats in Congress charged that Union soldiers had intimidated Southern Democratic voters, suppressing their vote.
Monroe wrote that the Democrats charged, “that these returns [in those four states for Republican Hayes] were a product of fraud and dishonesty; that, in preparing them, the vote of whole precincts, parishes, and counties had been thrown out in order to secure Hayes electors… [and] they did not represent the people of those States, but were themselves the product of fraud and corruption, and were kept in place only by what was called the ‘moral influence’ of Federal bayonets.”
The nation nearly exploded, wrote Monroe: “The feeling of mutual hostility had been greatly intensified by party leaders, orators, and presses. In some of our cities it took all the terrors of the police court to keep Democrats and Republicans from breaking the peace.”
The 12th Amendment, ratified in 1804, had a simple solution to the problem of neither candidate winning a majority of electoral votes. “[I]f no person have such majority,” the 12th Amendment says, “then… the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote…”
Because all the Southern states had now been re-admitted to the Union, a majority of the House of Representatives that year were controlled by Democrats, as were a majority of the states. With each state’s delegation having only one vote, the Democratic-controlled House representing a Democratic majority of states would end up making Democrat Tilden the president, something the Republicans wouldn’t go along with.
Republicans added that because the 12th Amendment also says that “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the [electoral] votes shall then be counted…” that the president of the Senate should be the one to make the call as to which state’s contested votes were legitimate.
The Constitution provides that the vice president shall be the president of the Senate, but President Ulysses Grant’s veep, Henry Wilson, had died the previous year and Grant hadn’t replaced him; the president of the Senate in 1876 was Senator Thomas Ferry of Michigan, a Republican.
“[I]t would have been as unsatisfactory to Republicans to have the vote declared by the House,” wrote Monroe, “as it would have been to Democrats to have it declared by the President of the Senate.”
“The situation was serious,” Monroe wrote. “Some thoughtful men felt that perhaps the greatest peril that the Republic had encountered was not that of the Civil War” but that “within a hundred days, people would be cutting each other’s throats.”
Senator Banning of Ohio, “My colleague,” Monroe wrote, “declared in a speech, that, if the Republicans should attempt to carry out their theory of the election, and if a part of the army with eighty rounds of ammunition, and the navy, should be ordered to support them, the people would put them all down.”
In response, Virginia’s Congressman Goode stood up and loudly asked his colleagues if they were willing to essentially restart the Civil War.
“A shout of ‘Yes’ went up from the Republican side of the House,” wrote Monroe.
Cooler heads ultimately prevailed, and both sides worked out a compromise that gave the GOP the White House but only on the condition that the newly minted President Hayes would remove Union troops from the Southern states, ending Reconstruction.
The republic was saved, but only by selling out Southern black people for the next hundred years.