NEWS
03/11/2020 06:00 GMT | Updated 03/11/2020 15:38 GMT

US Election: 5 Ways The Result Could Go Wrong

Donald Trump could refuse to leave the White House even if he loses the election.

Of all the possible outcomes of the US election, the most straightforward and trouble-free is – at the moment – not looking very likely.

A Donald Trump victory would mean four more years and no transfer of power – much of the same and the world would likely carry on as normal. Well, as normal as things get these days.

Unfortunately for the sitting president, he is trailing his Democratic rival Joe Biden. And not just by a bit – by loads

Statista
US election polls.

So as things stand it won’t be straightforward and there are a number of ways it could unfold. Here are five ways the entire process could descend into farce.

1) Trump refuses to go

Trump has already suggested on a number of occasions that even if he loses the election, he won’t leave the White House quietly.

Asked at a press conference in September if he would “commit to a peaceful transferal of power” if he lost the election, Trump said: “Well, we’re gonna have to see what happens.”

We can’t say for certain, but there’s a possibility that Trump is envisaging some kind of heroic last stand, surrounded by generals as his supporters cheer him on from the White House lawn.

But the reality of Trump losing would be very different. 

When the clock hits noon on January 20, Donald Trump would transform from the most powerful man in the world, to an irate pensioner throwing a fit like a toddler.

As a private citizen he will have no business in the White House and will almost certainly be forcibly ejected, most likely by the same Secret Service agents who protected him for four years.

For obvious reasons of national security, these plans are secret, but former White House communications director Anthony Scaramucci told the i newspaper earlier this month that they have been discussed.

He said: “The Secret Service and the US Marine Corps that protects that 18-acre area known as the West Wing and the old executive building complex have already had discussions – ‘who is taking him out of there if he doesn’t want to go?’

“Is it the Marine Corps or the Secret Service? It’s been decided that it’s the Secret Service because it’s more of a civilian protection role than a military one.”

Kevin Lamarque / Reuters
The Secret Service might have to escort Trump from the White House. 

2) Trump starts suing

The first thing to know about the following scenario is it’s a very real possibility. How do we know that? Because Trump has been laying the groundwork for months.

It all centres on mail-in ballots. This year there will be significantly votes cast in this manner because of the pandemic, and as mad as it sounds, how seriously an American takes the threat of Covid-19 can be pretty well predicted by which party they are going to vote for.

Republicans, spurred on by Trump’s constant dismissal of the threat, are generally content to turn up to a crowded polling station on the day while Democrats are playing it safer and going for the mail-in option.

In states such as Pennsylvania and Wisconsin that do not count mail-in ballots until election day, initial results could skew in Trump’s favour, experts say, while the mail ballots counted more slowly are expected to favour Biden.

Democrats have expressed concern that Trump will declare victory on election night and then claim mail-in ballots counted in the following days are tainted by fraud.

And with good reason – Trump has been spreading misinformation on the topic for months to the point where tweets like this have been flagged by Twitter as “misleading”.

Just this week Trump said it would be “inappropriate” to take extra time to count the tens of millions of ballots cast by mail, effectively an attempt to cancel votes.

A close election could result in litigation over voting and ballot-counting procedures in battleground states.

Lawsuits filed in individual states could eventually reach the US Supreme Court, as Florida’s election did in 2000, when Republican George W Bush prevailed over Democrat Al Gore by just 537 votes in Florida after the high court halted a recount.

trekandshoot via Getty Images
The Supreme Court could play a major role in deciding the election result. 

 

The Supreme Court

It’s worth taking a slight deviation here to explain the role of the Supreme Court not only in this scenario, but in all the ones listed here.

 

The US Supreme Court is the ultimate arbiter in major decisions that affect the lives of Americans – think gay rights, abortion and segregation.

 

It is supposed to be entirely separate from the political arena and obviously does not have to power to simply pick a presidential winner.

 

But occasionally – as in the Bush vs Gore saga mentioned above – it has been called upon to interpret the law involved in picking the winner which, let’s face it, is basically the same thing.

 

And it’s this outcome – which could arise in any of the scenarios listed here – that has some, particularly Democrats worried.

 

Trump has pushed the Republican-held Senate to confirm Amy Coney Barrett as Supreme Court justice, which would create a 6-3 conservative majority that could favour the president if the courts weigh in on a contested election.

3) The Electoral College gets messy

The Electoral College is the slightly bizarre system Americans use to vote for the president. There are a few key things to know:

Firstly, the president is not elected directly by citizens. What they’re actually voting for are people called electors who then convey the will of the public in a winner takes all system.

Under the constitution, the candidate who wins the majority of 538 electors divvied up among all the states, known as the Electoral College, becomes the next president.

Statista
A map of the electoral college. 

Crucially, in some circumstances this system means a candidate can win the national popular vote but still lose the Electoral College vote, as happened in 2016 and 2002.

This year, the electors will meet in December to cast votes. The outcome of this is usually never in doubt as the electors vote the same way as the majority of the public voted.

Both chambers of Congress then meet in January to count the votes and name the winner.

Normally, the governor of each state (that’s the leader of the local government there) certifies the results and then passes on this information to Congress.

But battleground states of Pennsylvania, Michigan, Wisconsin and North Carolina all have Democratic governors and Republican-controlled legislatures (that’s the one or two houses of elected politicians, like a mini parliament) which could, in theory, lead to a situation where a state submits two different results.

For example, a Republican governor could go rogue and submit a win for Trump. Or a Democratic governor could do the same for Biden regardless of the actual result.

According to legal experts, it is unclear in this scenario whether Congress should accept the governor’s electoral slate or not count the state’s electoral votes at all.

While this sounds like madness and a flagrant breach of both rules and decency, some academics have highlighted the scenario, and while they say it is unlikely, there is historical precedent. 

The Republican-controlled Florida legislature considered submitting its own electors in 2000 before the Supreme Court ended the contest between Bush and Gore.

The law governing such a scenario has never been tested or interpreted by the courts. So in short, no one really knows what would happen.

4) The vice president decides

BRENDAN SMIALOWSKI via Getty Images
It could be Mike Pence's time to shine. 

This scenario is an extension of the previous one, only with vice president Mike Pence as the ultimate decision maker, and seeing as he has quite the vested interest in staying in office, it’s not difficult to see which way he’d go.

As well as VP, Pence is also Senate president. And if the two chambers of Congress can’t agree it’s possible he could try to throw out a state’s disputed electoral votes entirely.

In that case, the Electoral College Act does not make clear whether a candidate would still need 270 votes, a majority of the total, or could prevail with a majority of the remaining electoral votes – for example, 260 of the 518 votes that would be left if Pennsylvania’s electors were invalidated.

And then one again we’re in the land of Who Knows. “It is fair to say that none of these laws has been stress-tested before,” Benjamin Ginsberg, a lawyer who represented the Bush campaign during the 2000 dispute, told Reuters.

One possible solution would be to ask the Supreme Court to resolve any congressional stalemate, but it’s not certain the court would be willing to adjudicate how Congress should count electoral votes.

5) It’s a dead heat

In this election, there are 578 Electoral College votes up for grabs with a candidate needing to obtain 270+ to win.

This means there is the possibility of a dead heat which would trigger what is called a “contingent election”, covered by the 12th amendment of the constitution.

This essentially takes voters out of the equation and instead allows the House of Representatives to choose the next president, while the Senate selects the vice president.

Each state delegation in the House gets a single vote. As of now, Republicans control 26 of the 50 state delegations, while Democrats have 22 – not good news for Joe Biden.

Under the Presidential Succession Act, if Congress still has not declared a presidential or vice presidential winner by then, the Speaker of the House would serve as acting president – currently Democrat Nancy Pelosi.

Infographics supplied by Statista.