What if the Election Day Presidential Loser Says He’s Won?

By Michael Diederich, Jr.

AnElectionLikeNoOther_social5

A bedrock principle of American democracy is that elections decide who governs and that elections result in the peaceful transfer of power. Our citizenry expects this. Yet during this election cycle, President Trump has repeatedly said that if he loses, it means the election has been “rigged.” He has raised the very anti-majoritarian prospect of the states’ congressional delegations selecting the president. And when asked very recently about a peaceful transition of power were he to lose the election, his response was, “We’re going to have to see what happens.”[1]

Whether Donald Trump or some future president, what will happen if a president who loses the election asserts, “I’ve won; I’m staying”?

This article explores the Constitutional options, from various perspectives.

  1. The Transition and Transfer of Presidential Power

The Constitution is very specific about the transfer of powers. After Election Day, our electoral system specifies that the electors of each state cast their vote for a presidential candidate. The winner is then sworn into office at noon on January 20th.

The four-year term is fixed by Article II and the 20th Amendment of the Constitution. Regarding the possibility that a national catastrophe, such as the current Covid-19 pandemic, might result in the delay or cancellation of the presidential election, if there is not a president and vice president selected by the Electoral College by January 20, then it is up to Congress to determine “who shall then act as President,” which Congress has codified in the Presidential Succession Act of 1947. The Speaker of the House of Representatives becomes the acting president.[2]

If an election is held, but there is a dispute as to the results in one or more states where the outcome then determines the result, one option is resolution of the dispute by the U.S. Supreme Court, as discussed below.

  1. The Supreme Court – a Bush v. Gore Repeat?

In the presidential contest between George W. Bush and Al Gore, the election came down to the outcome of the votes in one swing state, Florida. Arguably notwithstanding the principles of federalism, the U.S. Supreme Court decided to stop the counting of votes in Florida and instead, by a 5–4 vote along partisan lines, awarded George W. Bush the presidency.[3]

The haste with which President Trump and his Republican allies have sought and found a candidate to replace the late Ruth Bader Justice Ginsburg is viewed by some as motivated, at least in part, to ensure a pro-Trump outcome in the event of a contested Bush v. Gore election scenario. Most members of our profession (including the author) will give nominee Amy Coney Barrett the benefit of the doubt, as she is a highly respected jurist and appears to be a very upstanding citizen. There is no reason to believe she would support a corrupt interpretation of the presidential election results. Her conservatism appears to be based upon integrity and core convictions, which is what Americans expect from jurists, whether “liberal” or “conservative.” Historically, Supreme Court justices have exercised considerable independence after being appointed to their lifetime positions, likely recognizing that posterity will review their judicial decision-making.

Yet it remains impossible to predict how any particular Supreme Court justice or the majority would vote in a Trump versus Biden judicial contest. For example, what if President Trump were to assert that all mail-in ballots are defective or fraudulent, and therefore he wins based upon exclusively in-person voting? Since mail-in voting has been routinely (and successfully) employed in several states already, it might be very difficult for even the most pro-Trump justice to support such an argument. But what if the majority were to do so? What if the Supreme Court’s adjudication is clearly partisan and wrong? What if, for example, Joe Biden clearly should be declared the winner of the Electoral College vote, yet on grounds viewed as pretextual by the great majority of Americans, the Supreme Court declares President Trump to be the winner?

The question will then be constitutional power and its formulation of the separation of powers between the three branches of government. If the Supreme Court were to rule in a strictly partisan fashion, its legitimacy as an impartial adjudicator of the law will have been lost. It will properly be viewed simply as a partisan enabler of the executive branch and its purported winner – pure power politics played by the unelected judicial branch of government not directly responsible to the people. The majority of Americans could fairly then conclude that the minority now rules the majority, contrary to the Founding Fathers’ vision and citizens’ basic understanding of American democracy.

If the nation accepts the precedent of Marbury v. Madison,[4] the Supreme Court’s de facto election of the (unelected) president will stand. Under such a scenario, what are the constitutional, democratic options?

  1. Congress Can Overrule the Supreme Court

Let’s assume arguendo that it is clear that Joe Biden, not Donald Trump, wins the Electoral College vote and that President Trump challenges this vote as “rigged.” Let’s assume further that a partisan Supreme Court rules in Trump’s favor. Can democracy prevail? Under what authority?

The answer is that Congress has a great deal of power to act. The question thus becomes, how far is it willing to exert its power?

Depending on how egregiously partisan the Supreme Court decision is, the Congress could decide to overrule it. The Constitution does not provide that the Supreme Court is the ultimate interpreter of the Constitution. Section 1 of Article III of the Constitution vests it with “[t]he judicial Power of the United States.” In the Marbury case, the Court presumed for itself the role of constitutional interpreter, yet the Constitution itself granted no such role, at least not an exclusive role. Thus, either of the two elected branches of government (each much more powerful and each democratically chosen) could choose to ignore or reject the Supreme Court’s interpretation of the Constitution. This has happened in our nation’s past. For example, President Abraham Lincoln took the position that he would not respect the Supreme Court’s decisions upholding slavery, for example, the Dred Scott[5] decision.

We can take as a given that historically the Supreme Court has been afforded deference in judicial decision-making because it is composed of respected jurists, and the national citizenry cherishes the “rule of law.” However, if the Supreme Court becomes so partisan as to become lawless, the need for respect and deference vanishes.

The Supreme Court is unelected and, as we see today, whether by design or by fate, has become composed of members who are more conservative than the great majority of Americans. A conservative court in a liberal country can be fairly criticized as being anti-majoritarian, even when considering the rights of “red” states in a federal republic.

Thus, Congress could decide to overrule an egregiously partisan and unjust Biden v. Trump decision. It could state that the Supreme Court’s interpretation of the election results was wrong and that the winner was Joe Biden. Such determination would be backed by the fact that the Congressional decision-makers reflect the Election Day voice of the American public and not the voice of partisan members of the High Court. The Supreme Court could hold such determination unconstitutional, and the congressional response could fairly be “you’re wrong” and “we have the power to overrule you – because America is a democracy.”

Let’s complicate the matter further. The current House of Representatives is Democratic-controlled and the current Senate is Republican-controlled. If the Senate remains Republican-controlled after the election, there will presumably be no pro-Biden Senate vote. Thus, the politically divided Congress will be unable to speak as a whole. Can the House of Representatives still overrule the Supreme Court regarding an illegitimate president?

Because members of the House of Representatives are elected every two years, they are the elected officials most closely connected to the public. For this reason, their voices are the most representative voice of the People within federal government. Thus, if the Supreme Court and Senate were both to rule pro-Trump even though he clearly lost the election, the House of Representatives possesses what might fairly be called the “nuclear option” of opposing the impostor president through its congressional powers.

As discussed above, Congress as a whole, or the House alone, could vote to overrule the Supreme Court and declare Joe Biden the winner of the election. This might present an existential threat for our democracy – the threat of authoritarian rule such as has occurred in world history. Yet because of the Founding Fathers’ genius in creating the constitutional separation of powers, authoritarianism would not likely be the result because of Congress’ Article I powers.

First and foremost among these other powers is the Congressional “power of the purse.” The legislative branch controls the taxpayers’ money. If the Congress does not authorize and appropriate funds for the operations of the federal government, its operations would cease. Or Congress could appropriate funds surgically, denying funds desired by the impostor executive – for example, refusing to fund the executive departments or executive activities that most directly serve the president’s political interests.

If a Republican-controlled Senate were to support the impostor president, the House of Representatives’ response could be to refuse to authorize the expenditure of funds desired by the executive branch. A governmental shutdown or semi-shutdown would result. It would, of course, be a crisis, but a crisis less dire than allowing authoritarian rule.

The House of Representatives could also punish the anti-majoritarian Supreme Court for its judicial partisanship by cutting its budget and staff. It could also impose regulations upon the Supreme Court, as is Congress’ right under Article III, § 2, such as requiring the justices to comply with the same ethical rules required of all other federal judges.[6] Denying Supreme Court justices the “perks of office” that they presently enjoy, often given by partisans and special interests, might persuade them to become less partisan and to more impartially perform their jobs.

Ultimately, if the American people disagree with the House of Representatives’ action, recourse is two years later, again at the ballot box. The above would obviously be an extraordinary action on the part of the Congress as a whole or the House of Representatives unilaterally. Nonetheless, in the face of a clearly unelected president, the above would be an appropriate (and fully constitutional) congressional response.

  1. Trumping Democracy Through a “Contingent Election”

President Trump could make an end run around democracy through what is known as the “contingent election” contained within the 12th Amendment. If he succeeds (perhaps with Supreme Court help) in preventing a majority of the Electoral College from selecting the president by January 20th, then the Constitution provides that the House of Representatives delegations from each state select the president, with 26 votes – one vote per state – required to win. Presently, Republicans clearly control 26 state delegations and Democrats clearly control 22, thus making a Trump win assured even though the popularly chosen House has an otherwise overwhelming Democratic majority.

Under the above scenario, President Trump could win the presidency notwithstanding losing the popular vote and not winning the Electoral College. Instead, the states with the minority of voters would choose the nation’s leader. It would constitutionally do so, while at the same time destroying the democratic principle of majority rule. Wyoming, Vermont and Alaska, with a combined total of slightly under 2 million residents, will have as much say in the selection of the nation’s leader as California, Texas and New York, with a total of over 87 million residents.

  1. The Military Response—Obey the “commander in chief”

If the United States were a true “banana republic,” we might seriously fear how the U.S. military might respond if the president were to declare his intent to continue in office notwithstanding losing. However, we are not Belarus or Russia. The United States military has a strong tradition in being nonpartisan, and the author is of the view that it is quite unlikely that the military would take sides in a political dispute over who won the election.[7]

Military officers swear an oath to uphold the Constitution. This includes obeying the lawful commands of the Commander-in-Chief. It does not include obeying the commands of someone who does not have a legitimate claim to the office of president.

Congress, not the president, has the express power under Article I and thus the ultimate power – power to regulate both the nation’s armed forces and the militia.

Based upon all the constitutional options available – particularly, corrective action by the Congress even if politically difficult – there is little reason to fear military involvement or military coup d’état in the event of a highly disputed presidential election.

  1. Conclusion

We will be in uncharted territory if the loser of the upcoming election declares himself the winner. If President Trump loses but declares himself the winner, it will be up to the Supreme Court or Congress to determine the winner if we are to respect the Constitution. How this is accomplished may determine whether American democracy has been lost.

Michael Diederich, Jr. is a solo practitioner who represents individuals in civil rights and employment law matters. He is a retired U.S. Army “JAG” lawyer and a member of NYSBA’s Committee on Civil Rights. He served on active duty in Iraq and Afghanistan. His office is in Rockland County, N.Y.


[1] Reid J. Epstein, Emily Cochrane and Glenn Thrush, “Trump Again Sows Doubt as G.O.P. Scrambles to Answer Voters,” N.Y. Times, Sept. 24, 2020, https://www.nytimes.com/2020/09/24/us/politics/trump-republicans-election-transition.html.

[2] See 3 U.S.C. § 19.

[3] See Bush v. Gore, 531 U.S. 98 (2000).

[4] 5 U.S. 137 (1803).

[5] See Dred Scott v. Sandford, 60 U.S. 393 (1857).

[6] Many have urged Congress to require that justices adhere to the Code of Conduct for United States Judges. See, e.g., Kevin M. Lewis, “A Code of Conduct for the Supreme Court? Legal Questions and Considerations,” Congressional Research Service, Feb. 6, 2019, https://fas.org/sgp/crs/misc/LSB10255.pdf.

[7] Others do not share the author’s view. See, e.g., Jennifer Steinhauer and Elaine Cooper, “At Pentagon, Fears Grow That Trump Will Pull Military Into Election Unrest,” N.Y. Times, Sept. 25, 2020, https://www.nytimes.com/2020/09/25/us/politics/trump-military-election.html.

 

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