With days left until Nov. 3, polls suggest that President Donald Trump may lose the election to Joe Biden. The former vice president is leading Trump by nine points. Biden has continued to outpace Trump in donors and fundraising in key battleground states. More than 80 million voters have already cast early or mail-in votes, with states that report party affiliations showing the majority to be registered Democrats.
Trump has joked about fleeing the country should he lose to Biden, but his past statements and current actions say otherwise. Just as Trump’s former attorney Michael Cohen testified in 2019, Trump has refused to commit to a peaceful transfer of power and has even urged his campaign rally attendees to chant “12 more years.” Along with filing lawsuits in multiple states questioning protocols around mail-in ballots, he’s most recently signed an executive order that could allow him to terminate nonpolitical members of the civil service—including nonpartisan experts like scientists and doctors—while protecting the positions of political appointees, thus potentially undermining the authority of the next president.
Trump is neither ready to lose nor make nice about it. Should Trump fail to concede, here are three potential ways things could go.
Throughout America’s history, there have been five instances of contested presidential elections. During the 1824 race, Andrew Jackson won the plurality of both the popular and electoral vote, but the House of Representatives selected John Quincy Adams as victor. In 1876, Samuel J. Tilden bested Rutherford B. Hayes in the popular vote and received 184 electoral votes, compared to Hayes’ 165. Following a legal and political battle, Hayes claimed both the disputed votes and the White House.
In both the 1888 (Grover Cleveland vs. Benjamin Harrison) and 2000 (George W. Bush vs. Al Gore) races, the ultimately elected president lost the popular vote but won the Electoral College vote. In the 2000 race specifically, a conservative-leaning SCOTUS reversed Florida’s Supreme Court request for a manual recount in the wake of Florida’s ballot controversy and effectively awarded Florida’s 25 electoral votes to Bush.
As for the 2016 race between Hillary Clinton and Donald Trump, Clinton won the popular vote, while Trump won the Electoral College vote. Despite calls for a recount due to mounting evidence of foreign interference, Clinton conceded. Even after Trump’s win, he repeatedly claimed voter fraud.
In 2020’s highly contentious election, it is Trump’s same relentless claims, along with an ailing postal service and an unprecedented number of casted absentee/mail-in ballots, that threaten a constitutional crisis. Unless there is a landslide Biden victory, Trump can and will likely continue to legally challenge the election’s integrity in the hopes of landing in the Supreme Court and getting an outcome similar to Bush vs. Gore.
Trump could also declare outright victory before count completion and convince states with Republican-controlled legislatures to appoint his loyalists as electors—people who submit the electoral votes. Biden and the democratic party have vowed to combat such a situation with their own army of attorneys and legal maneuvers—thereby promising a long, protracted, and ugly legal battle.
In either case, the best and possibly only way to keep such a crisis from unfolding is to have an irrefutable Biden win by a wide, decisive margin.
Even in the event of a clear Biden win, Trump still has a huge incentive not to accept such an outcome. Without the protection of the Oval Office, which, according to the Justice Department, prevents charging a sitting president with a crime, Trump faces potential prosecutions for tax fraud, bank and insurance fraud, bribery, and obstruction of justice.
Trump continues to threaten the employment of active-duty troops to quell civil rights protests following the deaths of George Floyd, Ahmaud Arbery, and Breonna Taylor. Trump has also promised to deploy law enforcement to monitor polling sites. He has also offered to prevent election night riots (in the event of his victory) with the military, but nothing is preventing Trump from using armed forces should he lose.
To be clear, no president has exclusive authority to command military forces for domestic law enforcement reasons. Such actions would constitute tyranny and, the Posse Comitatus Act provides criminal charges for anyone who would use American armed forces to regulate civilian behavior unless such an action was “expressly authorized by the Constitution or Act of Congress.” That Act of Congress is called the Insurrection Act, and Trump mentioned that he would use the military specifically under the auspices of this rule.
According to the Supreme Court, the Insurrection Act can be invoked if the president decides that a domestic emergency warrants military action. SCOTUS purported that such a decision be based on the presumption that the president be in possession of “high qualities of public virtue, and honest devotion to the public interests,” and that “elections and the watchfulness of the representatives of the nation” would guide any president who lacked such high qualities. Using the Insurrection Act to erase the balance and check on its very use is quite frankly a hit and a half for that ass.
Nevertheless, local and state jurisdictions can submit any invocation of the Insurrection Act for judicial review. But Trump has proven to be quite the chess player as he has appointed nearly 25% of all active federal judges in the United States and more federal appeals court judges than any other recent president during this same period in their respective terms.
Such a use of the Insurrection Act to influence an election violates many constitutional principles including the Faithful Execution clause. Yet considering how Trump and his GOP enablers have largely rewritten presidential rules to suit their political goals and objectives, it’s questionable whether such a violation would be stopped by his allies.
Should Trump attempt this move, the good news is that the U.S. military will not be a participating partner. Per the Chairman of the Joint Chiefs of Staff, General Mark Milley, all American armed forces will abide by the Constitution of the United States and leave any election disputes to the courts and Congress.
Trump may not have the support of the U.S. military, but that won’t necessarily deter him from using an armed force to stay in power.
On June 1, U.S. governors and National Guard commanders received a call from the Pentagon requesting that thousands of citizen soldiers be airlifted to Washington, D.C., to perform crowd control during the George Floyd protests. Most Democratic-led states declined in shock, while several Republican-led states eagerly responded by sending 98% of the total 3,800 troops who showed up.
The thought of a sitting president summoning a private militia to maintain his power seems beyond the pale. But the sitting president in question is Donald Trump. And when one considers the numerous Trump enthusiasts and right-wing militias that actively align with U.S. law enforcement, have a reputation for inciting violence, and hold extreme skepticism for state forces, this scenario becomes a possibility.
“There won’t be a transfer, frankly. There’ll be a continuation,” Trump responded during a press briefing when asked if he would commit to a peaceful transfer of power.
Nevertheless, as Biden said during that unfortunate first debate, “[Trump] has no idea what he’s talking about. The fact is, I will accept it and he will, too. You know why? Because once the winner is declared after all the ballots are counted, all the votes are counted, that will be the end of it."
Don’t forget that you can do your part by visiting Complex’s Pull Up & Vote site—where you can double-check your registration, register to vote if you haven’t, and request a mail-in ballot.