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'We are not prepared for this at all': What happens if Donald Trump disputes the US election result?

Trump has repeatedly refused to commit to the result of this week’s presidential election.

Donald Trump at a campaign rally this week
Donald Trump at a campaign rally this week
Image: Evan Vucci/PA Images

US PRESIDENT DONALD Trump has repeatedly sparked concerns that he might not accept the results of next week’s presidential election if he loses.

Trump has been trailing his Democratic rival Joe Biden in opinion polls for months, and has refused to commit to supporting a peaceful transition should Biden win.

It’s highly unusual that a sitting president would express less than complete confidence in the US electoral process, but Trump’s non-commitment echoes comments he made during the closing stages of his race against Hillary Clinton in 2016.

Things are more complicated this time, with Trump already in the White House and millions of people set to cast their votes through postal ballots – a process which takes much longer to count. 

The president has been pushing a campaign to undermine postal voting for months by tweeting and speaking critically about the practice, which has been encouraged by more states as a way of keeping voters safe amid the Covid-19 pandemic

The response to the pandemic, Black Lives Matter protests and an impeachment trial involving Trump have already led to discord across the US this year.

But some believe that an uncertain result in Tuesday’s presidential election could bring about a constitutional crisis that could leave the US without a clear result.

In the worst-case scenario, Trump could conceivably use his power to prevent an outcome that goes against him. 

“We are not prepared for this at all,” Julian Zelizer, a Prince­ton professor of history and public affairs told The Atlantic.

“Few people have actual answers to what happens if the machinery of democracy is used to prevent a legitimate resolution to the election.”

In most previous US elections, the loser’s acceptance of the result has been taken as a given. But this time, question marks over whether that will happen could lead to further political division and widespread unrest in the weeks and months ahead.

Untested systems

Although the possibility of a disputed result stems primarily from Trump’s unwillingness to commit to honouring a Biden victory, the changed electoral landscape this year is what would enable him to do so credibly. 

In most recent US elections, winners have been declared and losers have conceded within hours of the polls closing in November, based on the early vote counts.

When the loser concedes, it allows the winner to immediately begin preparing to take power in January, well before the official winner is declared by the Electoral College in mid-December.

But this year, experts agree with Trump on one key point: because of a massive surge in voting by mail due to the coronavirus, and untested systems for handling those votes, early election results might be very incomplete and open to challenge.

The winner “likely will not be known on election night” the Transition Integrity Project (TIP), a group of academics and former government officials who have been studying possible problems with the 2020 election, has concluded.

TIP, whose members include both Democrats and Republicans, says it expects a period of legal and political “chaos”, something which is exploitable by the parties.

The group says the concept of election night is no longer accurate – going so far as to suggest it could be “dangerous” – because of the length of time it will take to count postal votes.

Unless Biden captures the election by a clear landslide, TIP expects Trump to exploit any ambiguity, laws and his presidential powers, to assert victory and refuse to leave office.

“We also assess that President Trump is likely to contest the result by both legal and extra-legal means, in an attempt to hold onto power,” it said.

It all counts

Another source of complication is the Electoral College system through which the US elects its president, and how it could be undermined as a result of postal voting.

Unlike other countries, the tally of votes from members of the public (otherwise known as the popular vote) doesn’t determine who will become president. 

Instead, each state is awarded a certain number of electors. There are 538 electors in total, and candidates require a majority (270) to become president. 

In most cases, the projected winner is announced on election night. But the actual Electoral College vote takes place in mid-December, when electors gather to cast their ballots for the president based on the popular vote in their states.

This year, the result of the popular vote may not come in until some time after election night because of the widespread use of postal voting.

It may take several days or more for the election result to become clear due to a high volume of mail-in ballots. If results in certain states aren’t known by the time the Electoral College vote takes place in December, it could lead to problems.

election-2020-trump Air Force One arrives at a campaign rally on Wednesday Source: John Locher/PA Images

Ben Sheehan, a US constitutional expert, has suggested that it’s possible that the Electoral College in disputed states don’t send representatives of the popular vote.

“There is this opportunity for states to choose to decide a different way to appoint the electors,” he told Bill Maher’s Real Time last week.

“And as long as they act on it by 8 December, they could make it go differently from the popular vote.”

TIP has further warned that the period of uncertainty between the election and the inauguration in January will provide “opportunities for an unscrupulous candidate to cast doubt on the legitimacy of the process” and undermine the outcome of the vote.

“There is a chance the president will attempt to convince legislatures and/or governors to take actions – including illegal actions – to defy the popular vote,” the group said.

“Of particular concern is how the military would respond in the context of uncertain election results.”

How Trump has reacted

Of course, the key figure in all of this uncertainty has been Trump himself.

The president has repeatedly jumped on the use of postal voting ahead of the election, suggesting that massive voter fraud involving the tens of millions of postal ballots and early voting due to the pandemic could prevent him from winning.

His supposed concerns about postal voting have become a platform for him to undermine the result of the election, and he has repeatedly refused to rule out respecting the result if Biden wins. 

In July, he told Fox News host Chris Wallace “I’ll have to see” when asked about the election result during a wide-ranging interview, and earlier this month he also said “we’re going to have to see what happens”.

His comments have drawn comparisons with dictators in Belarus and North Korea, and raised fears that he could fracture the US democratic system in a cling to power.

The president has called on his supporters to go to polling stations and “watch very carefully” for any attempted fraud, of which there is very little history in US elections.

He has repeatedly made unfounded claims that postal voting will lead to widespread fraud, despite five states regularly sending mail ballots to all voters in elections without any sign of significant fraud.

Sheehan suggests that the problem may also be those around Trump who know how to take advantage of the US electoral system in a way that keeps him in power.

“So much of the electoral college is set in the constitution, but a lot of the actual process that’s going to happen over the next two months is set by federal law, and even the federal law that describes it, people can barely understand,” he said.

“My worry is if we get to this point where we have the electoral count that happens on 6 January, there’s going to be disputes and it could go haywire.”

Trouble brewing

But problems, if they happen, will likely begin long before that date: the first sign of trouble could come as early as election day next Tuesday.

Much of what could happen will be based on Trump’s attempts to discredit mail-in voting, which will prepare him to contest the results of the election after Tuesday night.

Postal ballots normally take longer to count, and the additional millions of ballots expected to be cast by post this year mean that will take even longer.

What’s more, polling across the US has found that Democrats are more likely to cast their ballots by post than Republicans.

Conceivably, the result could be too close to call or favour Trump on election night, based on in-person voting, but swing towards a Biden win as postal ballots are counted in the days afterwards.

election-2020-voting-outstanding-ballots Mail-in ballots for the 2020 General Election Source: Matt Slocum/PA Images

It’s possible that Trump could accuse the Democrats of refusing to honour the results of the election as millions of postal ballots continue to be counted.

Trump himself has signalled two possibilities.

First, if the projected results on election night go against him, he will refuse to concede, and challenge the vote count, with the support of Republican political operatives on the ground in the states.

That could lead to grinding recounts, with each ballot reviewed and challenged on any anomaly: an unclear signature, a shortened address, or a ballot posted without a special inner envelope meant to ensure secrecy – which sometimes can lead to its rejection.

The process could take weeks.

On the other hand, if Trump sees himself leading on election night, he could declare victory before millions of postal ballots are tallied.

“The ballots are out of control,” he said earlier this month. ”Get rid of the ballots and you will have a very peaceful – there won’t be a transfer, frankly. There will be a continuation,” he said.

For his part, Biden has pledged to respect the results “after all the ballots are counted.”

“That will be the end of it. And if it’s me, fine. If it’s not me, I will support the outcome,” he said.

Republican support

Whether Trump is able to successfully dispute the election result will depend on whether he has the support of the Republican party.

If he does not, key party members would be able to talk him down or cast him as an outsider – but given the polarised nature of US politics and the possibility of a close result due to postal voting, it’s far from certain this will happen.

That could bring the matter to the courts, and both Republicans and Democrats have already mustered large legal teams for a post-vote legal siege. 

This has echoes of the 2000 presidential election, when the fight between Democrat Al Gore and Republican George W Bush came down to the result in one state: Florida. 

The state’s Republican-controlled government declared Bush the winner on a miniscule vote margin. Gore’s side went to court for a recount of millions of “punch-card” ballots which proved prone to errors and miscounting.

Though Gore conceded to Bush on election night, he subsequently withdrew his concession and fought the recount battle until the case escalated to the Supreme Court, which ruled against a recount.

The Supreme Court’s decision practically handed the election to Bush – though less reported was that the Republican’s victory came after Gore formally conceded the day after the Court’s ruling, five days before the Electoral College count. 

In that sense, there is no precedent for what will happen if Biden wins the Electoral College vote but Trump still refuses to concede.

This year Trump’s Republicans are preparing to challenge adverse results in a number of key states like Florida, Wisconsin, Michigan and Pennsylvania. 

They could end up taking cases against Democratic-leaning counties in those states over alleged “irregularities”, and ask that judges reject their results.

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“A determined campaign has the opportunity to contest the election into January 2021,” TIP said.

The other source of Republican support could come from states themselves.

The US Constitution allows state legislators to decide how to choose which electors vote in the Electoral College – and they generally do this based on the popular vote.

But in a situation where results are disputed, Republican-controlled states could theoretically pass a bill to remove the power to choose from citizens and send Republican electors instead.

The Republican Senate leader Mitch McConnell – whose legislative body could remove Trump by impeachment if he refuses to go – has already moved to reassure voters that the winner will be inaugurated on January 20th.

Inaugurations for two presidential candidates have been planned before; in 1876, probably the most disputed US election so far, it took until two days before inauguration day for Rutherford B Hayes to be declared the winner by one electoral vote.

Civil unrest possible

In the meantime, organisers are already planning protests across the United States if Trump loses but refuses to concede next week.

With tensions high and the country extremely divided, law enforcement agencies are also reported to be preparing for the possibility of violence.

An anonymous FBI official quoted by The Washington Post said the federal police were “paying particularly close attention” to the possibility of civil unrest.

The New York Police Department has told its officers to prepare for the possibility of protests that could last into next year.

trump-demonstrations-new-york Demonstrators at Trump Tower in New York Source: Brian Branch Price/PA Images

“This is pretty unprecedented in American politics to have to be worried about whether a sitting president will accept the election results and ensure a peaceful transition of power,” said Sean Eldridge, head of anti-Trump organisation Stand Up America.

The group is part of a coalition known as Protect the Results, which has laid the groundwork for nearly 250 rallies, from Las Vegas to New York and Maine to Florida.

While the precise locations of the readied protests are yet to be identified, participants have been warned that the mobilisation could begin at next Wednesday evening, the day after the election.

Experts have since warned that if the chips fall a certain way, the election could bring about a constitutional crisis that would leave the US without an authoritative result.

There has been speculation that Trump supporters, primed to look out for voter fraud, could gather at polling places on election day. That could lead to counter­protests, and the ensuing violence could in turn lead the president to declare a state of emergency.

Trump has already dispatched the National Guard to Washington and sent forces to Portland and Seattle during this year’s Black Lives Matter protests.

“This is work that I never hoped that we would have to do. (But) we have to take him at his word when he says he may not accept the election outcome,” Elridge added.

“Certainly everything we’ve seen from him over the past three and a half years has been a total lack of respect for democratic norms and for our election processes.”

In what has already been a year of divisions, the post-election period could see the US face its most tumultuous period in recent memory yet.

With reporting from © AFP 2020

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