By Lewis Walker.
Place yourself two weeks into the future. The US presidential election has been and gone. Where do you think the country will be?
Two scenarios stand out as clear possibilities. First scenario: Trump or Biden win, and the losing candidate has accepted their loss (whether that be reluctantly or graciously). Second scenario: the result is contested, and the democratic underpinnings of the US are tested.
A Gracious Loser
If we want an ideal world then we must keep our fingers crossed for the former. The make or break moment of truth is the minute Trump or Biden stand up and officially concede. Van Jones, a former advisor to President Obama, recently highlighted the importance of the losing candidate officially accepting their loss with a concession speech.
The US relies heavily on the written words and meaning of their constitution, however, that concession speech is nowhere to be found within its four corners. It is merely a voluntary gesture and one made by all losing candidates of the modern era. This places it on very weak foundations, especially when ‘customs’ have mattered little to the incumbent President.
Relying on a tradition to act as a democratic safeguard illustrates a certain level of naivety in the American system (yes, ironic coming from a British person where conventions fill in the gaps of our own political bedrock). The concession speech is made by an individual, but its words allow the collective mind of millions to accept an outcome they dislike, despise or feared. After this, it allows the gears to start turning in the constitutional process to pave the way for the next term in office. The constitution requires all these processes but not the triggering event. Therefore, we can breathe a sigh of (delighted or dismayed) relief when the candidate who is behind steps forward and signals their willingness to concede.
A Spoiled Loser
In 2016, Trump lost the popular vote but was still victorious due to the electoral college system. More people voted for Clinton, but more people in the states that mattered swung red. This was the fifth time that the outcome of an election had been resolved this way and despite winning the popular vote, Clinton stood down without a fight. In 2012 Mitt Romney conceded and congratulated Obama on his victory and in 2008 John McCain did the same.
Despite this, the constitution does not require candidates to concede. They can contest it and if this happens most people will predict a Supreme Court case dwelling on some boring legal technicality. Yet, there are less obvious but more powerful ways of the two current candidates to make a grab for or hold onto power. Some fun and exciting legal devices in the all-mighty US constitution and political manoeuvrings would allow such a struggle between the candidates to occur.
With Trump already refusing to guarantee his concession in the event of a loss, these devices could be taken advantage of. This would require the support of his party and the highest-ranking Republican, Mitch McConnell, has already committed to supporting the peaceful transition, with the senate formally following suit. However, where the results are so close to being hotly contested is it likely McConnell twists his own words as he did with the recent Supreme Court nomination?
Hypothetically, the losing candidate has multiple ways of circumventing the popular vote. They could bring their own swath of rival electors, to create a confusing situation of competing electors. This happened in 1876 which is most often cited as the most contentious presidential election. Scarily though, if the dispute finds its way into the United States Congress, everything is up for grabs. At this point, the popular vote and the electoral college vote are rendered redundant.
The American people might have spoken but they do not need to be listened to.
The power these hold would be stripped away and the House of Representatives are free to choose as they please. The American people might have spoken but they do not need to be listened to.
At this point, the vote in the House is taken by delegation. Simply, this means that the individual congress-people do not get to vote. The vote is determined by states, whom each get a single vote. Most likely, with more states being red right now, the Republican candidate would be elected president, this being despite most Americans living in blue states. This happened in the elections of 1800 and 1824, with John Quincy Adams winning the latter despite losing the popular and electoral votes.
Such a perfectly legal and constitutional scenario should not be disregarded. It is not unprecedented and with one candidate poised to challenge the election to his dying breath, we may see a president-elect who was not elected.
The result of the US presidential election has been contested through the courts before. In 2000 in the election between George W. Bush and Al Gore, the results in Florida were contested repeatedly by Gore’s campaign.
It was not until over a month later and a Supreme Court decision that Gore conceded, citing an unwillingness to drag Americans through any more partisan fighting (if only he knew).
With this in mind, how could the Supreme Court be dragged into this fight in 2020? Time for some of the boring legal technicalities mentioned above. Despite the Trump campaign being the most vocal about the current voting systems, the Republicans are setting the scene for a Biden challenge with their actions in some states.
Trump has repeatedly made the world aware of the “risks” of mail-in voting, without much evidence to back it up and a lot more to support the contrary. Most likely this is where his Supreme Court complaint lies. Already, the Trump campaign and Republicans have raised legal challenges at a state level in Pennsylvania, North Carolina and Texas targeting mail-in voting. However, the Supreme Court, albeit without their new Justice, were either deadlocked or refused the appeal.
If the Biden campaign were to contest the result, they would most likely focus on voter suppression tactics blatantly utilized by Republicans in some states. For example, on the small scale, some poll workers have been turning people away in Tennessee for wearing Black Lives Matter shirts, however, this was quickly corrected. On a larger scale, the Texan government have pushed through laws focused on limiting the number of early voting points to one per county. With Houston, the fourth most populous city in the US sitting in one county, it is easy to see the objective of this law.
No matter who brings a challenge or how many arguments are made, it should be remembered that since his inauguration, Trump has handpicked three of the current Supreme Court justices.
No matter who brings a challenge or how many arguments are made, it should be remembered that since his inauguration, Trump has handpicked three of the current Supreme Court justices. Once Amy Coney Barrett takes her seat, the court will be conservatively biased 6 to 3 given the weird way the American power structure works.
This bias corrodes any objectivity in a legal sense, no matter which way the court leans, and you can see this from the individual reasonings of each justice. In the coming month, we might see this bias take the driving seat in any decision the Supreme Court makes. No matter how cleverly or fervently the remaining liberal justices argue their side, we should expect a Trump campaign win in most cases.
After the first presidential debate (squabble), Jake Tapper from CNN correctly labelled the American people as the losers that night.
From a foreign perspective, that debate was the culmination of over four years of childish partisan squabbles fuelled mostly by red gasoline. Moreover, it affirmed the fear that this might not be a race to be won or lost by the ballot box. Both parties are geared up to contest a close election through the means available to them, and one has indicated an unwillingness to concede when he has lost.
Two weeks is not a long time, although, in 2020, two weeks can pack a punch at the minimum. Despite this, we can hope that this article was a pointless exercise and a waste of my time. Hopefully, the result of the race for the Oval Office is graciously accepted, otherwise, the only losers will continue to be the American people.