November, 2020
Washington – As noted in earlier posts, the after-election strategies of both presidential contestants depend somewhat on which political party controls the House of Representatives on a one-vote-per-state basis, as provided in the Twelfth Amendment to the Constitution. The losing candidate could try to move the presidential selection away from the Electoral College into the House, if his party controls it.
Indeed, Donald Trump has lost the popular vote and is well behind in the Electoral College, but Republicans will control the House (on a one-vote-per-state basis), so a strategy is afoot to have Republican-controlled state legislatures certify alternative slates of electors in hopes that Joe Biden could be denied sufficient electoral votes to reach the 270 he needs to be declared the Electoral College winner.
The rationale of the state legislatures would be that the popular elections in their respective states were fraudulent. Although there seems to be no evidence of any significant fraud, a vigorous campaign is underway to make citizens believe there was.
However, under law it is governors who certify electoral slates, so it becomes a question of which states did Biden win that have both Republican legislatures that would overturn a popular vote and a Republican governor who would certify a Republican slate of electors. That appears to be only Arizona and Georgia. But their combined 27 electoral votes, subtracted from Biden's current projection of 306, still leaves Biden with 279.
What if Republican legislatures in Pennsylvania, Michigan, and Wisconsin, where Biden won the popular vote narrowly, certify slates to compete with the slates certified by their Democratic governors? That would drop Biden below 270. However, both houses of Congress must agree on rejection of any slates certified by governors, and the House, with a Democratic majority for such a vote, would not agree.
So it appears as if any strategy to deprive Biden of at least 270 electoral votes is not feasible, given the November 3rd election outcomes as they played out in each state.
There is always the possibility that the courts might get involved and give a novel reading to the Constitution and to existing election laws, should any election questions come to them. I believe this is unlikely. It seems to me more plausible that the Roberts Court would reject such judicial contortions and instead use the occasion to try to restore Supreme Court credibility as an even-handed institution after making a misstep in Bush v. Gore in 2000. The Court badly needs more credibility if it expects its other decisions to have public support.
That leaves Trump with the use of the military to try to stay in power. He has dismissed the Secretary of Defense, who showed an unwillingness to use the military for political purposes. But Trump will also have to deal with the uniformed military leadership, which is doubtless preparing to resist misuse of the military in any effort to override the election outcome. Officers are duty-bound to obey only lawful orders, and orders to overturn an election would not be among them.
We can only hope it doesn't come to that, but to prepare for it if it does.
