What should Democrats do to stop Trump from stealing the election?
Over a year ago, I wrote an article pointing out that Trump might not willingly leave office, and that these actions might lead to a constitutional crisis. At the time, I was roundly criticized by Trump supporters claiming that my article was a complete piece of fiction. Perhaps. Hopefully.
But my argument was based upon comments made by Michael Cohen, Trump’s personal attorney, who said “I fear that if he (Trump) loses the election in 2020, that there will never be a peaceful transition of power.”
Subsequent to my article, Nancy Pelosi echoed the same concerns, as have Natasha Bertrand and Darren Samuelsohn in POLITICO, Daniel Block in the Washington Monthly, Barbara Mcquade in The Atlantic, to name just a few. Trump himself has even publicly toyed with staying for longer than the constitutionally-allowed two terms. Maybe my fears weren’t so overblown.
Indeed, former Democratic Senator from Colorado Tim Wirth and Newsweek Editor-at-large Tom Rogers recently penned an article detailing a strategy Trump could use to stay in office even if he loses the election. The strategy goes something like this: Biden wins enough states to attain an electoral college majority. Trump and Attorney General William Barr challenge the legitimacy of the results in key swing states Michigan, Pennsylvania, Wisconsin and Arizona. The Republican-controlled legislatures in those states refuse to certify the electors while the “investigation” is on-going. As a result, neither Biden nor Trump reach the critical 270-vote majority in the electoral college, and the election is decided by the House of Representatives.
At this point, Democrats might breathe a sigh of relief. After all, Democrats control the House, and are likely to continue to do so, right? Not so, Wirth and Rogers point out. According to the constitutionally-mandated procedure under the 12th amendment, the House would select a president voting by state, with each state having one vote. This process is called a “contingent election.” Currently, 26 states have Republican majorities in their House delegations. As a result, a vote by the House would result in the selection of Trump for another term.
This scenario is enough to make most Democrats hyperventilate. But if the Democrats take a few steps, they can block this scenario. Consider the following. According to the 12th amendment, the president must be selected by “a majority of all the states.” As a result, having more votes than the other is not enough. Even having the votes of 25 states is not enough. You need 26.
That fact should be small comfort to Democrats since the Republicans currently control 26 House delegations. But the current Congress is not the one that decides who will be president. As a result of the 20th amendment’s shortening the amount of time between the election and the start of the new Congress, the newly-elected Congress would be the one to hold the contingent election.
So could the Democrats switch the votes of enough states to select the president in a contingent election? The odds of this occuring are long. Unfortunately, while the Republicans control 26 House delegations, the Democrats only control 22. Two delegations, Michigan’s and Pennsylvania’s, are evenly split. As a result, to achieve the requisite 26 states, the Democrats would have to take a Republican seat in Michigan, Pennsylvania, and at least one other state.
To determine the odds of this happening, we can turn to the Cook Political Report, a well-respected political handicapper. That organization annually publishes two key measures: a list of the competitive Congressional seats rated as likely, lean or toss-up for the Democrats or Republicans, and the Partisan Voter Index (PVI) which determines mathematically whether a district is more likely to elect a Democrat or a Republican. We will rely upon these resources for our analysis.
Part of the problem Democrats face, and this is plainly apparent from the lists put forth by the Cook Political Report, is that due to gerrymandering, Democrats hold more competitive seats than do Republicans. Indeed, among the seats rated as toss-ups, Democrats currently hold almost three times as many as do Republicans (16–6). The good news is that even if Democrats lose all their toss up seats to Republicans, the Democrats will still retain the majority. The bad news is that this does not help us for the presidential contingent election.
Furthermore, among the Democratic toss-ups, there are some danger signs. Both Iowa and Pennsylvania have enough Congressional districts in that category to turn those two state delegations firmly Republican. As a result, losing any of these seats (IA 1, 2 and 3; PA 8) would be devastating. Democrats cannot afford to lose any of them.
Among the Republican toss-ups, however, only one seat will impact our analysis: Pennsylvania’s 10th district. If the Democrats retain the 8th district and win the 10th, that will turn Pennsylvania’s House delegation blue. Hooray! The problem is that this win would not get Democrats to the critical 26 votes needed, and it would not diminish Republicans’ ability to select the president in the House.
If we assume that the Democrats hold all their seats, then by winning some of the districts that Cook rated as “lean Republican” would get them to 26. If they win Pennsylvania’s 10th and Michigan’s 3rd, both currently open, along with Florida’s 15th district or Montana’s single congressional district, then the Democrats would have enough state delegations to select the president. Such an achievement, however, would be something akin to running the board, so I wouldn’t bet on it.
There is another approach that might work for the Democrats, however. If the Democrats can win either the Florida or the Montana district, both rated “lean Republican” by Cook, then that would ensure Republicans do not have the requisite 26 votes for president. Indeed, Florida has a number of other potentially competitive districts, including the 16th, currently rated as competitive but “likely Republican,” and the 18th and 25th, both of which have Partisan Voter Indexes of less than 5 points. In other words, if Trump continues to drag down Republican prospects by more than 5 points, and Biden currently leads Trump by 6 points in Florida, then any one of these districts might be winnable for Democrats. Winning just one Republican district in Florida would turn that state’s delegation blue.
At that point, Republicans would be unable to win enough votes to select the president in the House. So do we just go without a president? The Constitution has provided us with a different solution.
If the House is unable to select a president, then the Vice President takes over until such time as a President can be elected. Who determines the Vice President if the electoral college fails to generate a majority? The Senate. And unlike the House, the Senate votes by individual senator, not by state. Whichever candidate gets 51 votes in the Senate becomes vice president.
Democrats are currently favored to win the Senate, so achieving this outcome is critical. But even if the Democrats only bring the Senate up to a 50–50 division, all is not lost. In case the Senate cannot muster 51 votes to select the vice president, the Speaker of the House becomes the president until a new president or vice president can be selected. That, of course, would be Nancy Pelosi.
Thus all is not lost. The key, however, is for the Democrats to win the Senate, and to win at least one Republican Congressional seat in Florida. If the Democrats accomplish these two eminently achievable goals, then we can protect ourselves from the doomsday scenario posited by Wirth and Rogers. Hopefully, Democratic strategists have taken these factors into consideration and are basing their targeting on this logic.