By Frank J Biga III -
It is likely that, no matter the consequences, Donald Trump will now, over the next three weeks, fully prosecute the case that political correctness has so long proscribed us from doing – an indictment of the entire corrupt and rotten to the core political establishment in Washington DC, regardless of party. This has been a long time in coming and because of that buildup the damage will be severe and permanent. This civil war in the GOP may very well end the party if Trump loses. His supporters are in no mood to acquiesce to a leadership that supports open borders or free trade or globalism. If Trump wins the Democrats will be in disarray and the Clintons may very well be investigated leading to a political battle unlike anything this Republic has ever seen. It is really quite scary in some ways.
But of equal interest is what will happen in any interregnum between the election and inauguration day. If Trump wins will we finally see the Establishment realize that the people have spoken? Or will we see multiple attempts to derail Trump before Inauguration Day? This is the more likely outcome I think.
If Clinton wins, will Trump’s supporters accept the results? Trump and his top supporters have stated that they will accept the election results and that it is the media who is rigging the elections in its shamefully biased reporting of the campaign. But if there is actual video evidence of voter fraud across the country is several key battleground states, will Trump’s supporters accept the outcome? That is hard to tell. I think in some ways the Rubicon has been crossed here.
But let’s say Trump wins. What are the ways that the election can be contested or an override of the results be attempted? It seems that Trump has bi-partisan enemies in this arena and the battle may just be beginning on November 8. The first area for a challenge is in the state elections themselves. Recounts in close states would be funded. Lawsuits would be filed as to the validity of the vote in some states as I’m sure that some Democrats will accuse Republicans of voter suppression in some areas.
The election of 1876 provides a sort of template for this sort of challenge. In 1876, Democrat Samuel Tilden won the southern states of Florida, South Carolina and Louisiana on election night after the votes were counted. But the Republicans cried foul and said that many former slaves had their votes suppressed. The 20 electoral votes of those states were in dispute. Congress created an Electoral Commission to investigate and determine how to award the disputed votes. This Commission of 15 members had 8 Republicans and 7 Democrats on it. Of course, in the end, it voted along partisan lines and awarded all 20 electoral votes to Republican candidate Rutherford B Hayes and he became our 19th President by a margin of 1 electoral vote (185-184). The South extracted Home Rule in this bargain and the Jim Crow era began in earnest.
Another alternative for opponents of Trump is to convince the Electors themselves to vote differently than their states voted. Well over 99% of the Electors in our country’s entire history have voted as they pledged. The sheer political pressure is enormous on them to conform to the wishes of their fellow citizens.
But only about half of the states have laws requiring these pledges be upheld. So, in an election like this, there could be “faithless Electors” who might be persuaded to keep Mr. Trump from 270. These Electors meet in their respective state capitals to cast their votes on the same day. In some states these proceedings are open to the public. Regardless, given the sheer hatred of some toward Donald Trump, if he wins there will likely be members of both parties who will call for the Electors to change their votes and “save the country.”
But let’s say that the Electors hold true to form and vote the way that their states wish and this is overcome. There is still another way for the opponents of Trump to make an attempt at stopping him. And that is on, January 6, 2017, several days in to the new Congress. After members are sworn in, a joint session of Congress is held and the President of the Senate(Vice-President Biden in this case) leads an official tally of the actual sealed Electoral Vote Certificates as presented by the Electoral College. Each state’s votes are recorded alphabetically. But after the reading of this tally, the Vice-President then asks if there are any objections to any of the votes. These objections must be written and signed by at least one Representative and one Senator.
Both Houses then return to their respective chambers to a maximum two-hour debate on the merits of each objection. Both Houses must agree on the challenge to overturn the state’s results with separate majority votes in both chambers to effectively knock the Electoral Votes off of the originally winning candidate’s total count. Any candidate must win a majority of the entire Electoral College, or 270 votes.
This action actually happened recently in January 2005 as the electoral votes of the state of Ohio were challenged. Both Houses failed to concur though and the Electoral Votes were indeed awarded to President Bush and Vice-President Cheney. But given the acrimony of this year, if Trump wins any states by small margins and he just squeaks by in the Electoral College, can we really expect a likely Republican House to back him up on this?
That may seem like political suicide. But if Trump can be knocked below 270 electoral votes and Clinton can also be kept below that amount, then the House of Representatives elects the President. The Vice-Presidential race might wind up differently as the electoral votes for each office are made and counted separately. Imagine the electoral votes for Trump in one State being challenged but Pence’s votes not being challenged! In this case, Pence would be elected Vice-President Elect and then become Acting President on January 20 if no President as been chosen.
If Pence failed to reach 270, the Senate, which would likely be Democratic given current polling trends, would get to select the Vice-President from the two candidates with the most Electoral Votes (either Pence or Kaine).
This new Vice-President would serve as Acting President starting January 20, 2017 if the House was unable to reach agreement on a new President in time. 26 state delegations are needed. Some states might have deadlocked House delegations and a tie vote in a State makes it essentially an Abstention. In 1800, the House needed to cast 35 ballots before finally deciding on Thomas Jefferson as our third President.
Even more arcane is the Senate rule that fully 51 Senators must approve the potential Vice-President in a contingent election. So if the Senate is split 50-50 and the partisanship holds, there is no tie-breaker from the current Vice-President on January 6 (Biden) In this case the Speaker of the House would serve as Acting President until the House decides on a President. The Speaker would have to resign both as Representative and Speaker to do this (hmm, that’s one way to end Paul Ryan’s career).
The House eventually though selects the President from the top three candidates who receive the most Electoral Votes. So if Gary Johnson can win New Mexico or Evan McMullin can win Utah, they would be on this ballot. Who would have thought?! But even more bizarre, if Pence is Acting President would a Republican House even vote for President? The political pressure would be enormous but whether that is enough to overcome some of their disdain for Donald Trump remains to be seen.
Bottom line, the above is very byzantine and convoluted. But given the very heated rhetoric and passions involved in this election season, I see an interregnum potentially more interesting than any in my lifetime. But our country has had such interregna before. In 1824 we had the Corrupt Bargain. In 1860 President Lincoln had to arrive in DC hidden in a special train dressed as a woman it was so intense. In 1876 we had the aforementioned Hayes-Tilden battle. And in 1932 the economy was so grim banks were failing and unemployment plumbed new depths. The Year 2000 brought us quite a controversy too. Political parties didn’t survive all of them, but the Republic did. Expect it to survive again this time, no matter the outcome.
In God We Trust