It doesn’t matter what candidates and their supporters have to say about the election’s result. It only matters what the Constitution says about it.
NRPLUS MEMBER ARTICLE
T
here have been many “interesting times” in human history, even if there is actually no ancient Chinese curse wishing that we may live in them. On the contrary, had some sage conjured up a hex along the lines of “May you live in stupid times,” our time would fit perfectly.
One could have that reaction daily to many media reports. This week, my nominee is this one in the Washington Post: “Trump’s assault on election integrity forces question: What would happen if he refused to accept a loss?”
The premise is that the president is engaged in “relentless efforts to sow doubts about the legitimacy of this year’s election” by “escalating attacks on the security of mail-in ballots.” This is coupled with Trump’s refusal, a priori, to accept the legitimacy of the election outcome, echoing the position he took in the last presidential campaign — you know, before the same Democrats who feigned outrage over Trump’s demurral began four years of mulishly refusing to accept the outcome of the 2016 election.
The Post distorts the president’s refusal to rubber-stamp an election that has not happened yet — under circumstances where there is immense reason for concern about mail-in ballots — as a “refusal … to reassure the country that he would abide by the voters’ will.” Of course, Trump is not saying he won’t abide by the result; only that he won’t concede at this point that it will be an honest result. Recall that Richard Nixon abided by the result in 1960 even though there were grounds to doubt that it was on the up and up.
The Post’s cold sweats are amplified by William A. Galston, a columnist and former Clinton administration official who is with the strenuously anti-Trump Brookings Institution. He declaims that Trump is “undermining confidence in the most basic democratic process we have” and “arousing his core supporters for a truly damaging crisis.” Galston is so disturbed that, he informs us, “Words almost fail me.” Almost.
What rubbish.
We are a nation of laws, not men. It would be nice if our elections were universally regarded as such solemn democratic exercises that, without fail, all incumbent and challenger candidates could confidently commit to endorse the outcome ahead of time. But we don’t bank on anyone’s good will. We rely on the law.
Under the 20th Amendment to the Constitution, which was ratified in 1933, the president’s term “shall end at noon on the 20th day of January.” At that point, if he has lost the election, Donald Trump would no longer be the president of the United States. Period. His personal feelings about how the loss came to pass, and whether he did or did not regard the result as legitimate, would be irrelevant. Under the Constitution, he would neither be president nor wield the powers of the presidency as of that moment.
There is no rational reason to indulge the anti-Trump hallucination of a defeated president holed up in the Oval Office refusing to leave. If ever any president were to try such an inane thing after the constitutionally mandated divestment of executive authority, he or she would be escorted from the premises — hopefully, with whatever dignity could still be mustered under the circumstances.
Presidents do not exercise any control over the electoral process. They may influence it by challenging the results in state and federal courts. But the process is controlled by Congress under longstanding statutory law (found in Chapter 1 of Title 3, U.S. Code). In a nutshell, all state disputes, if any, over election results must be resolved by December 8. On December 14 (the first Monday after the second Wednesday in December), the electors meet in their states and cast their votes. Those votes are certified in the state and then transmitted to Congress, a process that is supposed to be completed by December 23. On January 6 at 1 p.m., both houses of Congress convene to count the votes.
An incumbent president who loses the election may grouse. His supporters may insist that he was robbed. But the states follow their own legal processes to certify the outcome of voting, the electors vote as they must under state law, and Congress tabulates and certifies the result. Regardless of whether we know who won by the night of the November 3 election, we will know no later than mid December, and the outcome will be etched in stone by January 6. Everyone will know that, at noon on January 20, President Trump either will no longer be president or will be starting his second term, as dictated by the Constitution, not by his personal assessment of the situation.
Finally, in light of the unprecedented scale on which mail-in balloting will occur this year of COVID fears, it is specious of Mr. Galston to refer to the upcoming election as “the most basic democratic process we have.” To be a democratic process at its most basic, there would need to be an election in which it was presumed that eligible voters go to the polls and cast their votes at the same time based on the same available information, with mail-in ballots limited to the usual quantum one expects in a country of our size, due to the exigencies that excuse physically showing up to vote.
I certainly hope that heavy reliance on mail-in procedures, which have sparked controversy in several states, will work. The last thing this country needs right now is a disputed election. But let’s not pretend this is so familiar and straightforward that potentially serious problems are unimaginable.
Moreover, as we saw with Hillary Clinton in 2016, even if a candidate purports to endorse the legitimacy of the election beforehand, that is not an enforceable commitment to accept the result after the candidate has lost. So it is pointless to fret over whether a candidate will pledge, before the voting, to endorse the process and the result. Such a pledge would be nothing more than political posturing. In two of the last three presidential elections that Democrats lost, they claimed the result was illegitimate. And if Joe Biden loses in November, who would be surprised to find battalions of Democratic lawyers filing challenges in the courts of every battleground state?
But fear not. No matter what happens in the election, no matter how messy the process, the presidential term that began at noon on January 20, 2017, will end at noon on January 20, 2021. And at that point, when the new term commences, the president will be whomever Congress certified two weeks earlier, based on the Electoral College votes cast in December by electors in each state. It won’t matter what the candidates and their supporters have to say about it. It only matters what the Constitution says about it.