Donald Trump has made clear that he may not accept the results of the election unless he wins. He has directly stated that the only way he can lose is if the election is “rigged.”
To summarize, Trump will accept the results if it is not rigged, but if he loses it was rigged, so he will not accept the results if he loses. Trump’s statements prompted reporters to directly ask Press Secretary McEnany whether Trump would accept the election results if he lost. Here’s how it went.
Reporter: “The president said this week the only way we lose this election is if the election is rigged. It begs the question: Does the president believe there’s any circumstance under which he can lose the election fairly?”
McEnany: “The president believes he’s done a great job for the American people, and he believes that will show in November. He believes that voter fraud is real, in line with what we see all across the country, particularly with mail-in ballots which are prone to fraud.”
Reporter: “Is the president saying if he doesn’t win this election, that he will not accept the results unless he wins?”
McEnany: “The president has always said he’ll see what happens and make a determination in the aftermath.
So what if this happens? What if Trump loses the election and refuses to accept the results? Let’s look it over as it could play out with the presumption that no matter how strongly Trump’s position is repudiated he sticks to his guns because that is what he does.
The Election Process
America does not really have “an” election for President. Rather, we have 50 elections in all the states with those elections deciding which candidate will get each state’s slate of electors. Constitutionally, this does not have to even be done by elections. Per Article II, Section 2 of the Constitution each state is free to appoint its electors in whatever manner the state legislature chooses. In theory, Alabama could assign its electors based on the winner of the Alabama v. Auburn football game. However, as established by the Supreme Court in Bush v. Gore, if a state legislature chooses to assign electors by election then it is bound by that choice and the elections must be fair.
Each state has its own process for certifying the election results. Generally this culminates with the Secretary of State for each state certifying which candidate won and receives his chosen slate of electors for that state. Federal law requires that each state Governor also certify the results. Under Federal Election Commission rules states have until December 8 to report their results.
It is in this about one month interim that Trump could still legally challenge the election results in specific states as occurred in Bush v. Gore. Trump might challenge the mail in voting process he so despises (except when he, his family, and press secretary do it) demanding that certain ballots not be counted. However, such challenges would have been resolved within six or so weeks after the election because other deadlines are looming, some mandated by the Constitution.
By law, the electoral college is required to cast their votes and send them to the President of the Senate. The Constitution expressly empowers Congress “to determine the time of choosing electors, and the day on which they will give their votes.” Article II, Section 4. This Constitutionally empowered statutory deadline for the electoral college to cast their votes is December 14th.
Congressional Certification of the Election And The Objection Process
This brings us to the crucial point in the process. By law, on January 6 both Houses of Congress convene in joint session. This is the new Congress, with its composition established by the election in November. As mandated by the 12th Amendment the electoral college results from each state are counted and “the person having the greatest number of votes for President, shall be the President” (so long as it is a majority of the votes). That “shall be President” part does seem rather clear.
However, there is a process for members of the Joint Session to object to the electoral college votes of a particular state. For example, in 2009 and 2013 Birthers urged members of Congress to object based on vacuous claims that Obama was not a natural born citizen, none did.
The process for such objections is laid out in 3 U.S.C. § 15. The law prohibits a member from merely standing up and objecting by speech (debate is prohibited by law during the joint session). Any such objection must be submitted in writing, signed by at least one member of the House and one member of the Senate, and state “clearly and concisely, and without argument” the grounds for the objection. When this happens, the joint session is then temporarily suspended, with each House of Congress returning to their own chambers.
In these separate sessions each House of Congress can debate the objection, and then separately vote on it. Both the Senate and the House must separately vote to sustain the objection for the objection to succeed and the challenged electoral college votes not be counted.
Such objections have been filed twice. The first was in 1969 when objections were filed to disqualify the vote of a “faithless elector” from North Carolina who voted for George Wallace even though Richard Nixon won the state. Both the Senate and the House voted to reject the objection.
The second such objection is more on point to the current case and occurred in 2005. Claiming voting irregularities in Ohio, Representative Tubbs of Ohio and Senator Barbara Boxer of California sought to disqualify Ohio’s electoral college votes. Once again, both the Senate and the House voted to reject the objection.
There has not been a case of split vote between the House and the Senate, but if there were the objection would fail and the electoral votes challenged would be counted. Since the votes are cast by the newly elected members of the House and Senate this process does suggest another reason why the Congressional elections are vital in this coming election.
As discussed above, the certification by the joint session of Congress, after all objections considered, ends the matter. Per the 12th Amendment, so long at it is a majority of the electoral votes, “the person having the greatest number of votes for President, shall be the President.” No court would have jurisdiction to determine otherwise. [I’m not going to get into if neither candidates gets a majority and the decision devolves to the House of Representatives voting by State].
The New President And The End Of Trump’s Term
So what happens if Trump throws a tantrum and refuses to leave the Whitehouse? The answer here is quite simple and includes the ultimate Constitutional deadline. The 20th Amendment is quite clear:
“The terms of the President and Vice President shall end at Noon on the 20th day of January.”
So no matter what Trump does, or does not do, his term ends on Noon of the 20th day of January. Period. At that moment he is no longer Commander in Chief and he no longer controls the military. His status in the Whitehouse changes, simply put, to trespasser. The new President would order the Secret Service to escort him out, and they would. The messy process would be a stain on Trump’s legacy, not that he cares, but the Constitutional crisis would end right there.
