If Donald Trump is not reelected in the balloting, he will need to explain the result in a way that protects his ego. Think about the last election. Trump may be the only person ever who won an election and still claimed massive voter fraud. His narcissism had great trouble accepting the fact that he got three million fewer votes than Clinton, and he made the amazing assertion that there had been widespread illegal voting, a claim that if it had been accepted could easily have led to the conclusion that his victory was illegitimate. Of course, if he loses the 2020 election, he is going to say there was massive fraud, but he will not limit the claim to mail-in ballots; he will make that assertion about every aspect of the election. He has not needed a factual basis, evidence, or common sense for making such claims before, and he won’t in November either. It is a safe prediction that if he loses, electoral fraud claims will fly.
But there is another reason besides his ego why Trump may want to delegitimize the election. He may think it provides a path for him to retain the presidency. The Constitution in Article II provides that electors shall be appointed by the method each state legislature has mandated, which is by election in all the states. Assume that the Democratic candidate gets the most votes in a state, but the legislature, controlled by Republicans and following the Trumpian claims of massive fraud, passes a resolution that the election was not legitimate—that it was not the kind of election authorized by the state—and therefore no electors were elected as a result of the balloting? This may seem farfetched, but we can be sure that a fraud drumbeat amplified by Fox News, social media, and right wing websites will convince a sizeable number of Americans that an election was being stolen from Trump and will laud the legislature’s “brave” action. Of course, we can anticipate that the Democratic electors from that state will cast their votes on the designated date, which by statute is the first Monday after the second Wednesday in December, which this year is December 14. We might then have a slate we could call “no electoral votes” and a slate of votes for the Democratic candidate. What then? The Constitution does not tell us. It only says, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the [electoral] certificates and the votes shall then be counted.” It does not say how to resolve a dispute about any electoral certificate.
A federal statute, however, says that electoral votes shall be counted on January 6. If electoral votes are disputed, the state, including state courts, are to resolve the dispute before January 1, which would require chaotic, emergency actions in the states. If the state dispute is not resolved in time (I am simplifying here because the statute has many provisions), the Senate and the House meet separately to resolve the dispute. If both bodies do not agree on the resolution, then the certificate of the electoral votes sent by the governor of the state shall be determinative.
There is an interesting twist on the resolution of disputed electoral votes. The Constitution provides that the terms of Senators and Representatives begin on January 3, but president Trump and vice-president Pence stay in office until January 20. Thus, the President of the Senate on January 6 will be Michael Pence, who could vote to break a tie in the Senate. Think about that.
What happens if Congress determines that there are no valid electors from a state? Oh, let the fun begin. The Constitution states that “each state shall [Emphasis added] appoint” its allocated electors. Under usual legal parlance, “shall” means a requirement; the state must appoint electors. It can’t simply certify that it is appointing no electors. On the other hand, if the state determined its election required a do-over, it is unlikely that there would be time to hold another election before January 6. But what happens if the state refused to appoint electors and Congress did not agree to accept an alternative slate of electors? It would not matter, of course, if at least 270 electors had voted for one candidate or another, for that would constitute a majority of the 538 electors allocated by the Constitution. It is not clear, however, what would happen if, for instance, only 500 electoral votes were accepted. The Constitution states that the president shall be the person who got the “majority of the whole number of Electors appointed.” Does that mean 251 electors could determine the president or would it still take 270 votes? No one knows for sure. We do know that if no candidate gets the majority of electoral votes, the House of Representatives decides the outcome, but with an important twist. The House would not decide as it normally does for legislation by voting as a body. Instead, each state gets one vote—California has one vote and so does Wyoming—with the majority of the states determining the president. And the Constitution does not tell us what happens if a state’s representatives split equally between two candidates. Does each get half a vote, or is this a no-vote, which could be important in reaching a majority? Right now, the Democrats have a comfortable majority of the Representatives in the House, but the Republicans have a majority of Representatives in the majority of the states. On the other hand, the Constitution requires the new Congress to be sworn on January 3, three days before the electoral votes are counted, and it will be the Congress elected on November 3 that would make the determinations. But on the third hand, if a state contended that its presidential election was not legitimate, it would also be contending that its Representatives had not been legitimately elected. Now what? Let’s not go there.
If Trump loses, he will contend that the election was not legitimate. If any state attempts to claim that its election was illegitimate, we can expect chaos. But chaos would be Trump’s friend. And this could be a reason why he is trying and will continue to try to delegitimize the election.