In the time since the U.S. presidential election was called in favor of former Vice President Joe Biden, President Donald Trump’s words and actions have raised fears among some observers that he might refuse to relinquish power.
Constitutional law scholars say there are protections in place to ensure that every president must leave office when his or her term is up—and if those protections were to fail, the country would be facing a much bigger, constitutional crisis.
Although the electoral certification process is still ongoing, Biden has emerged the clear winner from the state-by-state vote tallies. Every candidate in modern elections who lost by this wide a margin had conceded by this point. Formal concessions didn’t become an election custom until 1896 when Republican William McKinley defeated Democrat William Jennings Bryan.
Trump has so far refused to concede, and his campaign has filed more than a dozen lawsuits in several key battleground states while making unsubstantiated claims of voter fraud. Many of the suits are based on such thin evidence that they have already been dismissed.
Step-By-Step Guide To Trump’s Strategy
- Block the vote-certification process in as many states as possible, either through lawsuits or by encouraging Republican officials to object
- Convince Republican-controlled legislatures in states Biden narrowly won to dismiss the results of the popular vote as corrupted by widespread fraud
- Have the legislature then award their state’s Electoral College votes, which are cast by “electors” on 14 December, to Trump instead of Biden
- Do that in enough states — Wisconsin, Michigan, and Pennsylvania, for instance — to pull Trump from his current total of 232 electoral votes past the winning 269-vote mark
- Even pulling Biden from 306 votes might work, because then the election would be decided in the House of Representatives, where even though it’s controlled by the Democrats, Trump would have an advantage due to some arcane rules
What Is Trump Doing To Make This Happen?
Trump is applying pressure on people who can potentially change who the states pick for president. When Americans vote in a presidential election, they are voting in a state contest, not a national one. They are voting for state electors who will then cast one vote each for president. These electors usually follow the will of the electorate – in Michigan, for instance, they should all vote for Joe Biden because he won the state.
The first hint that Trump was applying pressure to individual states to disregard their current vote totals came following reports that he had called Republican officials who had initially refused to certify the election results from Detroit, Michigan’s largest city. The fact that two low-level party officials, among thousands of county canvassers across the US, would speak directly to a US president was more than just a little unusual. They ultimately reversed their decision to block the proceedings – and then, after Trump’s call, expressed regret for reversing themselves.
Those hints became clear evidence of intent when the Republican leaders in the Michigan legislature accepted a presidential invitation to visit the White House. The news has been accompanied by reports that the president is intent on finding other ways he can pressure key state legislatures to review, and perhaps reverse their election results.
What is typically a mere formality during normal elections — the bipartisan certification of state vote totals — has become the latest battleground in the president’s attempts to maintain power for the next four years.
Responses at the President’s Refusal
While a defeated president’s refusal to step down would be unprecedented in American history, anxiety over how to keep a president’s power in check dates as far back as the 1787 Constitutional Convention.
“That was a source of tremendous discussion and concern […] But I don’t think that [the framers] talked about or even imagined the possibility that a president would somehow try to stay in office beyond their term,” says Rick Pildes, a professor of constitutional law at the New York University School of Law, “As a result, the Constitution doesn’t specifically address such a scenario. But it does protect against it.”
25th Amendment: The Presidential Term
During any president’s term, there are two avenues for removing them from office: impeachment and the 25th Amendment, which allows lawmakers to remove a president who is sick or otherwise unable to fulfill his or her duties.
Neither of these would apply if someone tried to overstay their term because that person would no longer be president. U.S. presidents are limited under the Constitution to four-year terms that end on January 20 after an election year.
History: A Four-Year Term With A Hard End Date
The length of the presidential term was the subject of vigorous debate at the Constitutional Convention in 1787. Some delegates advocated for the presidency to last for three years, while others favored a seven-year term.
Alexander Hamilton — an ardent Federalist who believed in a strong, centralized government — even pushed for a lifetime term. Hamilton’s idea was shot down by the rest of the delegates, who were loath to recreate a system similar to the lifetime monarchy against which they had just rebelled. In his notes from the convention, James Madison described Hamilton’s suggestion as to the equivalent of an “elective Monarch.”
Ultimately, the delegates compromised on a term of four years, enshrined in Article II, Section I of the Constitution.
Hamilton went to support the idea in the Federalist Papers, a series of essays intended to persuade the states to ratify the Constitution, arguing that four years was just enough time for a president to make a difference—and that the possibility of reelection would encourage “good behavior” in a president who would need public support to stay in office.
A U.S. president’s term technically ends on Inauguration Day. For more than a century, presidential inaugurations took place in March, before they were moved to January 20 with the 1933 ratification of the 20th Amendment, which states that the president and vice president’s terms “shall end at noon” on that day. Even if a president is reelected, there’s a clear line between his first and second term. Ever since George Washington’s term, reelected presidents have re-taken the oath of office on Inauguration Day.
What That Means For 2021
On January 20, 2021, the winner of the 2020 election will be sworn in.
Though the states are still certifying their counts, and the Electoral College will meet on December 14 to formalize the result, experts say that Biden’s victory is clear. With 79.5 million of the votes cast compared with Trump’s 73.6 million, Biden also possesses a comfortable margin of electoral votes.
Recounts typically may change results by a few hundred votes, whereas Biden is ahead by thousands or tens of thousands of votes in each of the battleground states. Even if some Republicans in Congress were to raise objections on January 6 — when the body will count Electoral College votes and formally declare a winner — they will not be able to gain any traction.
When Biden is sworn into the presidency on Inauguration Day, Trump will become a civilian. If Trump attempted to remain, Biden would have the authority as the new commander in chief to order the military or Secret Service to physically remove Trump from the premises.
What Happens If The Election Is Still Contested?
In the unlikely event that the results of any presidential election are still contested on Inauguration Day, Congress would be tasked to sort out the mess, and an acting president would step in temporarily under the Presidential Succession Act.
In 1792, the first Presidential Succession Act named the president pro tempore of the Senate as the first in a line of succession if there were no president or vice president due to “death, resignation, removal from office, inability, or failure to qualify.”
In 1886, Congress moved the secretary of state to the front of the line. In 1947, Harry Truman signed the Presidential Succession Act that stands today. Now, the speaker of the House is first in line for the presidency, followed by the president pro tempore of the Senate and the members of the Cabinet in order of when their department was established. The Presidential Succession Act has never been invoked, and it’s almost inconceivable it would be relevant on Inauguration Day.
The Importance Of Norms
Trump is likely to continue to claim victory even after leaving office to keep a strong connection to his supporters, potentially staging a comeback in 2024.
Every legal system relies on a system of norms — such as conceding defeat and the peaceful transition of power — to exist. If enough people stop buying into those norms, it can corrode the system. The U.S. has never delayed an election — even during the Civil War, Spanish Flu, and the Great Depression.
The constitutional democracy assumes that people have faith in the integrity of the electoral process and can trust the outcomes. If they have the president himself, not some marginal fringe group, telling the people that the system is rigged and the results can’t be trusted is an incredibly dangerous message to spread.
Feature Image: REUTERS