How Trump Could Lose the Election—And Still Remain President | Opinion
Something like the following scenario is not just possible but increasingly probable because it is clear Trump will do anything to avoid the moniker he hates more than any other: "loser."
Trump actually tweeted on June 22: "Rigged 2020 election: millions of mail-in ballots will be printed by foreign countries, and others. It will be the scandal of our times!" With this, Trump has begun to lay the groundwork for the step-by-step process by which he holds on to the presidency after he has clearly lost the election:
- Biden wins the popular vote, and carries the key swing states of Arizona, Wisconsin, Michigan and Pennsylvania by decent but not overwhelming margins.
- Trump immediately declares that the voting was rigged, that there was mail-in ballot fraud and that the Chinese were behind a plan to provide fraudulent mail-in ballots and other "election hacking" throughout the four key swing states that gave Biden his victory.
- Having railed against the Chinese throughout the campaign, calling Biden "soft on China," Trump delivers his narrative claiming the Chinese have interfered in the U.S. election.
- Trump indicates this is a major national security issue, and he invokes emergency powers, directing the Justice Department to investigate the alleged activity in the swing states. The legal justification for the presidential powers he invokes has already been developed and issued by Barr.
- The investigation is intended to tick down the clock toward December 14, the deadline when each state's Electoral College electors must be appointed. This is the very issue that the Supreme Court harped on in Bush v. Gore in ruling that the election process had to be brought to a close, thus forbidding the further counting of Florida ballots.
- All four swing states have Republican control of both their upper and lower houses of their state legislatures. Those state legislatures refuse to allow any Electoral College slate to be certified until the "national security" investigation is complete.
- The Democrats will have begun a legal action to certify the results in those four states, and the appointment of the Biden slate of electors, arguing that Trump has manufactured a national security emergency in order to create the ensuing chaos.
- The issue goes up to the Supreme Court, which unlike the 2000 election does not decide the election in favor of the Republicans. However, it indicates again that the December 14 Electoral College deadline must be met; that the president's national security powers legally authorize him to investigate potential foreign country intrusion into the national election; and if no Electoral College slate can be certified by any state by December 14, the Electoral College must meet anyway and cast its votes.
- The Electoral College meets, and without the electors from those four states being represented, neither Biden nor Trump has sufficient votes to get an Electoral College majority.
- The election is thrown into the House of Representatives, pursuant to the Constitution. Under the relevant constitutional process, the vote in the House is by state delegation, where each delegation casts one vote, which is determined by the majority of the representatives in that state.
- Currently, there are 26 states that have a majority Republican House delegation. 23 states have a majority Democratic delegation. There is one state, Pennsylvania, that has an evenly split delegation. Even if the Democrats were to pick up seats in Pennsylvania and hold all their 2018 House gains, the Republicans would have a 26 to 24 delegation majority.
- This vote would enable Trump to retain the presidency.
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