Trump is challenging the election results. What happens now?
Donald Trump’s years-long attempt to undermine the results of the presidential election has predictably found the losing president in a spurious legal bid to toss out ballots and stymie vote counts as president-elect Joe Biden was declared the winner.
His campaign has filed a dozen longshot lawsuits in five states, while administration officials and GOP leadership have refused to acknowledge the president-elect’s victory.
Even if the president’s lawsuits are shot down in court, the damage is done – he has sown enough doubt among his supporters to construct the lie of a stolen election, giving Republicans a political legitimacy to challenge the results.
From his baseless claims of “millions” of illegal votes back in the 2016 election, which he won, to his ongoing assault against mail-in ballots and election workers processing the results, the president has sought to weaponise doubt to subvert the will of an overwhelming majority of voters.
Top Republicans – including Senate leader Mitch McConnell and Attorney General William Barr – have defended the president’s efforts to challenge the vote counts. Even Secretary of State Mike Pompeo, addressing his pressure on foreign governments to accept voting outcomes abroad, has suggested that president-elect Biden has not won the election.
Read more: Follow live election updates
The president and his allies have rallied around a disingenuous voting rights mantra to “count every legal vote” – implying that Democratic opponents have sought to count ”illegal" votes.
But throughout his administration and re-election campaign, the president has not produced any evidence of widespread voter fraud – he disbanded his voter fraud commission after its members alleged its creation only sought to prove there was evidence but found none, and his campaign submitted hundreds of pages court documents without any proof when a judge asked for evidence.
Elections officials across the US, including Republican secretaries of state, have assured voters that such fraud is virtually nonexistent.
So what’s next? States must certify their results by 8 December. Recounts are likely in at least one state, though historically, overturning the outcome is extremely rare. The Electoral College will convene on 14 December, when electors from each state cast their vote for their respective winners.
So far, Trump has tried to mobilise his supporters to intimidate voters at the polls, refused to commit to a peaceful transfer of power, and repeatedly suggested the Supreme Court would have a final say in his re-election.
By all measures, Biden has won the race, but dangerous conspiracies and threats to democracy – even if the president has no intention of actually winning these challenges – could jeopardise not just the 2020 election but the fates of democratically elected candidates in the elections to follow.
Certifying the results
With combined results from early voting, mail-in ballots and in-person votes on election day, Biden received more than 77 million votes to Trump’s 72 million.
The next step in the 2020 election, once all ballots are counted, is to certify the results. Most states are legally obligated to finish doing so by the end of November.
In Pennsylvania, if there’s a difference of 0.5 per cent or less between the candidates, a recount must be performed and completed by 24 November. A hand recount is expected in Georgia.
All states must certify their results at least six days from when the electoral college convenes on 8 December, a so-called “safe harbour” deadline to resolve any remaining disputes.
If states certify election outcomes by this deadline, Congress must accept the results. The electoral college meets on 14 December to officially cast votes that elect the next president.
On Tuesday, Senator McConnell effectively set a deadline for Trump’s challenges: “At some point here we will find out finally who was certified in each of these states and the electoral college will determine the winner.”
The electors
After voters cast their ballots in the presidential election, the winning candidate in each state receives that state’s share of electoral votes.
A state is allocated electors for each of its members in the US House of Representatives, comprised of 435 seats, and two senators, of which there are 100 – two for each state. The number of electors only changes when a new seat is added to Congress, though the process of reapportionment occurs once every 10 years, based only on US Census population shifts, if any.
States with smaller populations have fewer Congressional seats, thus fewer electors. Washington DC, which has no Congressional representation, has three electors.
That means largely populated states can act as key electoral victories, or losses – large electoral vote states like California and New York, reliably "safe" Democratic states, can guarantee as many as 84 electoral votes combined.
Several so-called swing states, or battleground states, are less predictable, but combined – including 2020’s critical Florida, Pennsylvania, Michigan, New Mexico, Arizona, Nevada and Wisconsin – can make or break a candidate. A candidate needs at last 270 electoral votes to win.
Trump won in 2016 without a popular vote victory, instead focusing on getting a handful of electoral college wins in battleground states. In the 2020 race, Biden reclaimed several midwest battleground states that Trump won four years ago, putting him on the path towards a projected electoral college victory with 290 votes.
The electors are selected by their respective parties in each state, pledging to cast their vote for the respective winner. That pledge is determined at the state level, not federally. (Maine and Nebraska appoint electors by congressional district, with two votes awarded to the statewide winner.)
Most states and Washington DC have laws against so-called “faithless electors” who break from their party and vote for another candidate, which is relatively rare. Only 90 “deviant” electoral votes have been cast across 58 presidential elections in the US, according to nonpartisan electoral reform organisation FairVote. Those votes did not change the outcome of the election.
Ten of those votes were cast in the 2016 election. A US Supreme Court ruling in response allowed states to have laws in places to prohibit “faithless" votes.
“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee – and the state voters’ choice – for president,” Justice Elena Kagan wrote in a July opinion.
What about the lawsuits?
Democratic voters outnumbered Republicans mail-in ballots, after the president spent a summer effectively telling his supporters to vote in person, and Democrats launched a massive messaging campaign about voting by mail and how to drop off mail-in ballots. In Pennsylvania, the GOP-controlled legislature ordered that mail-in ballots could not be counted until election day; news reports and elections analysts and officials warned that counting votes could take longer, with a surge in mail-in votes during the coronavirus pandemic.
The president has insisted that the delays and his vanishing “lead” as more ballots were processed is evidence of fraud.
His campaign has filed several legal challenges in Pennsylvania and elsewhere, and his personal attorney Rudy Giuliani has promised a wave of new legal challenges after a series of losses and minor victories that have done nothing to change the results of the election.
Following a campaign challenge, a state court and the US Supreme Court ruled that Pennsylvania ballots received after election day and before the extended deadline to receive postmarked mail-in ballots must be segregated from the vote count, a policy that the state’s Secretary of State has said was already in place.
In another case, a state judge ruled election observers stand slightly closer to vote counters, but the campaign’s attempts to slow the count in the state were rejected.
The campaign’s challenge in Michigan alleging a lack of transparency in the vote count was also rejected.
A judge in Georgia tossed the campaign’s claim after finding no evidence that mail-in ballots that arrived after 7pm on election day were mixed in with other ballots.
In Nevada, the campaign had hoped to stop mail-in ballots and claimed without evidence that “irregularities have plagued the election” in Clark County. Both were rejected.
The president’s own Department of Homeland Security debunked “SharpieGate” in Arizona, where his campaign sued over a false claim and social media conspiracy that ballots filled with Sharpie pens were rejected.
The electoral college – and a GOP conspiracy
While the president claims Democrats have tried to “steal” the election from him, right-wing personalities and prominent Republicans have promoted a plan to do exactly that.
As vote counter processed mail-in ballots, shrinking Trump’s lead in key states, Fox News host and right-wing radio personality Mark Levin posted a furious all-caps message on Twitter: “REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER THE CHOOSING OF ELECTORS, NOT ANY BOARD OF ELECTIONS, SECRETARY OF STATE, GOVERNOR, OR EVEN COURT. YOU HAVE THE FINAL SAY”
He urged state lawmakers to “do your constitutional duty” to choose electors that would vote for Trump – not the winning candidate in the state.
Donald Trump Jr retweeted the post.
It’s a legally dubious theory – but in classic Trump deflection, it’s one that actually amounts to “rigging” an election, despite frequently accusing Democrats of doing the same.
Pennsylvania’s state senate leader Jake Corman told The Centre Daily Times said he would not want “to get into hypotheticals” about appointing electors to award votes to Trump, adding that that “under normal circumstances” the legislature does not play a role.
Nothing in either Pennsylvania or Wisconsin state law – or any state, for that matter – indicates the legislature has any ability to override the popular vote. Legal analysts have argued that states cannot appoint pro-Trump electors without first changing state laws governing how those electors are appointed. In that case, they would have to draft a law that rules that the legislators’ will, not the voters’, is what determines who they send to the electoral college.
Florida’s Republican Governor Ron DeSantis also has urged Republican legislators in Michigan and Pennsylvania to send so-called “faithless electors” to the electoral college.
“Under Article II of the Constitution, presidential electors are done by legislatures and the schemes they create in the framework,” he told Fox News. “If there’s departure from that and [local elections officials are] not following the law, if they’re ignoring law, then they can provide remedies as well, so I would exhaust every option to make sure we have a fair count.”
Despite winning his own re-election, Wisconsin lawmaker Joe Sanfelippo told WISN-TV said that “you either have to toss this election out and have a whole new election, or we have our delegates to the Electoral College vote for the person they think legitimately should have won.”
In the event that Republican lawmakers did stage a coup against the will of their electorate, Democratic governors – in critically needed swing states Pennsylvania, Michigan and Wisconsin – would veto their attempt.
But at the Supreme Court, justices Brett Kavanaugh and Neil Gorsuch have indicated they support a controversial idea considered too extreme by the court’s majority in 2000 during Bush v Gore.
Chief Justice William Rehnquist and conservative justices Antonin Scalia and Clarence Thomas had argued that state legislatures, not courts, interpret changes to state election laws, to be governed by the Supreme Court, effectively creating a superseding elections board to determine the “intent” of state election laws.
“The state courts do not have a blank check to rewrite state election laws for federal elections,” Justice Kavanaugh said in a ruling last month.
Courts “may not depart from the state election code enacted by the legislature,” he argued.
In his concurrence, Justice Gorsuch echoed Justice Kavanaugh: “The Constitution provides that state legislatures – not federal judges, not state judges, not state governors, not other state officials – bear primary responsibility for setting election rules.”
