Trump currently seems likely to lose the fight over the election outcome. So far he has not shown any evidence that a significant extend of fraud has happened. While there will always be some votes in doubt the numbers in play now are not large enough to explain Biden's presumed victory. The courts are therefore likely to reject Trump's current challenges.
The media, including Murdoch's stable of right wing organs and the social media giants, have firmly declared a Biden victory and are thereby of no help for Trump.
But the Republican Party and Trump will want to keep fear, uncertainty and doubt alive at least until January 5 when the two Senate run-offs in Georgia get decided.
While the Republican incumbents are leading the race the Democrats will put a lot of resources into the state to move those seats to their side. They would give a Harris/Biden administration control over the Senate.
It is also possible that Trump may actually try to stay in office by manipulating the Electoral College process.
There are several more steps and deadline in the elaborate election process for the presidency.
- Dec 8 – States determine their electors for the Electoral College.
- Dec 14 – Electors meet in their states to cast their votes for the new President and Vice President.
- Dec 23 – Certificates of the electoral vote results get delivered to the president of the Senate, who is Vice President Mike Pence
- Jan 3 – Members of Congress are sworn in.
- Jan 6 – Congress meets to count the electoral votes and declare the results.
Trump could, even without finding the necessary votes, (ab-)use the Electoral College process to shift the result to his side. He can try to block or delay certifications in certain states and/or he can push Republican state legislators to appoint Trump electors.
There is precedence for that from the 1876 election:
Then as now, each state must decide on a group of electors to meet with a joint session of Congress on January 6 where the winner of the presidential election is declared. The normal practice in a state where Biden won the popular-vote total would be for state election officials to certify the results and send a slate of electors to Congress. But state legislatures have the constitutional authority to conclude that the popular vote has been corrupted and thus send a competing slate of electors on behalf of their state.
The 12th Amendment to the Constitution specifies that the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” That means that in the case of disputes about competing electoral slates, the President of the Senate—Vice President Pence—would appear to have the ultimate authority to decide which to accept and which to reject. Pence would choose Trump. Democrats would appeal to the Supreme Court.
Alternatively, if at that point, no candidate has the required 270 electoral votes, the 12th Amendment stipulates, “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” Currently, Republicans have a state delegation majority with 26 of the 50 states and they appear almost certain to keep that majority in the new Congress. A vote of the states would then elect President Trump for a second term. And again, Democrats would appeal that outcome to the Supreme Court.
In both cases the Supreme Court, with six of its nine judges nominated by Republicans, is likely to find in favor of Trump.
There are some variants of such a play:
If a lawsuit successfully stops certification of results in a state, legislators there could step into the void and pick a pro-Trump slate of electors.
- The lawyer, who requested anonymity to speak about the scenario, said Trump's team now appears to be trying to throw enough dirt at the process for counting late ballots to argue that accurate results can't be ascertained.
- The next step could be to try to get federal or state courts to enjoin secretaries of state from certifying results.
- Any move to provide an alternative slate of electors could force the first real test of the Electoral Count Act of 1887 and could land before the Supreme Court.
- Among the key swing states, Arizona and Georgia have GOP governors and legislatures. Michigan, Pennsylvania and Wisconsin have Democratic governors but GOP legislatures.
The Democrats are of course aware of such a possibility. They therefore play up the certainty of a Biden's victory even as the election process is far from decided.
But one should never count Trump out. Despite four years of getting Russiagate bullshit thrown at him he has managed to stay in office and to proceed with much of his program. He is also the first president in a 100 years who resisted the intense pressure to launch a new war. He is therefore unlikely to fold and to concede that he has lost the race.
There is only one person that could stop Trump from being successful with a 'dirty' Electoral College strategy. That is of course he himself. Over the last four years he has failed to select competent advisors. He will now need the best strategists and lawyers that are available. Jared Kushner and Rudi Giuliani will not do. Trump will also need the full backing of his party to put pressure on state legislators. He will have to make concessions to get the necessary support.
Meanwhile we all, as bystanders, will have to up our popcorn supplies to sustain the next two month.
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