vision 2020

Would Biden Play Constitutional Hardball After a Trump Electoral College Win?

Is this the face of a revolutionary? Photo: Drew Angerer/Getty Images

We have a president running for reelection who (a) has never met an asinine right-wing “voter fraud” theory he didn’t embrace and promote; (b) wouldn’t completely accept the results of the election he won in 2016 on the 100 percent unsupported grounds that Hillary Clinton benefited from “millions of illegal votes”; (c) has specifically refused to say he’d accept a 2020 defeat; (d) has spent months demonizing the mail ballots that may represent over half the votes cast in November; (e) arrogates to himself vast extra-constitutional powers, including, perhaps, one to delay the 2020 election; and (f) has argued that any electoral decision not rendered on Election Night is illegitimate.

So it’s not terribly surprising that a whole cottage industry of postelection scenario writing has sprung up with horror stories of how Trump might contest or ignore an adverse decision by the electorate.

In an inspired bit of whataboutism, the Washington Examiner’s Byron York dives deep into one of these essays in political science fiction (this one based on some role-playing exercises conducted by former government officials) to pluck out a scenario where it’s Joe Biden and his supporters who defy a defeat, according to the prevailing constitutional rules of the road. Hang onto your butts for this wild ride, folks:

Biden, like Hillary Clinton before him, won the popular vote (in this case, the margin was a decisive 52% to 47%). But Trump won the Electoral College victory with 286 electoral votes. In other words, Trump was the clear winner of the presidency. Biden conceded defeat on election night but then withdrew his concession as Democratic anger grew over another election in which the winner lost the popular vote but won the Electoral College. The Biden campaign pushed the Democratic governors of Michigan and Wisconsin to disregard Trump’s victory, overrule their state legislatures, and send Biden electors to Washington. House Democrats refused to recognize Trump’s Electoral College victory. The Biden campaign also came up with what appears to be a demand for concessions in exchange for recognition of Trump’s victory: Trump could take office if the Electoral College were eliminated, Washington, D.C., and Puerto Rico were given statehood, and California was divided into five states to create more Democratic senators. Otherwise, California, Oregon, and Washington state would secede from the union. In the end, the standoff “remained unresolved,” and Inauguration Day “arrived without a single president-elect.” The scenario ended with: “It was unclear what the military would do in this situation.”

Lord have mercy. Where to begin untangling this fantasy of revolutionary blue America and its Lenin, Joe Biden?

Yes, it’s possible, though unlikely, that Trump will not only duplicate his Electoral College inside straight of 2016 but do so against an even larger Democratic popular vote advantage, as Democrats pile up wasted votes in places like California. And yes, that would enrage the Democratic rank and file and create momentum for some future effort (perhaps a consummation of the National Popular Vote Initiative which requires coordinated state action to give electoral votes to the popular vote winner, or admission of the District of Columbia and Puerto Rico to the Union as states) to eliminate or neutralize the anti-democratic (and anti-Democratic) tendencies of the Electoral College. There would also likely be threats (assuming Democrats control Congress) to again impeach and this time remove Trump from office the first time he takes a wrong step.

But getting from there to some real effort to thwart Trump’s election is really a reach. Under the scenario York quotes, Democratic governors in two states send lists of Biden electors to Washington as rivals to Trump electors selected by legislators (and presumably the voters). While there is an ancient argument as to whether state legislators have the sole constitutional power to choose electors (i.e., whether governors can veto legislative appointments), I know of no theory where governors can unilaterally name electors. And there’s something inherently screwy about the idea of Democratic governors (or for that matter, a Democratic Congress in a vote to certify electors) voiding the popular result in one or more states as a vindication of the election of presidents by popular vote. It would not pass any conceivable smell test, or for that matter, court challenge. And anyone who thinks the U.S. Supreme Court would stay out of such a controversy has somehow forgotten Bush v. Gore.

The Biden Revolution scenario also suggests Democrats might make an outlandish series of demands and threats before “accepting” a clearly legitimate (from a constitutional, not moral point of view) Trump election: demanding outright abolition of the Electoral College (which would require passage and ratification of a constitutional amendment, taking years) or division of California (which would require a prior vote of Californians) and threatening state secession (we fought a war over that, remember?) if they didn’t get their way. None of these blandishments would get to square one, of course, without the consent and probably the leadership of Joe Biden — so firm an institutionalist that he won’t even squarely come out for Senate filibuster reform.

As suggested above, angry Democrats might use any Trump Electoral College win–slash–popular vote loss to develop and promote an agenda for not letting it happen again, and perhaps make its enactment a big 2022 midterm election issue — an election which, as Trump’s second midterm, would very likely produce Democratic gains far larger than those in 2018 and create a far more comprehensive and progressive mandate for fundamental change than might come out of a contested presidential election. By 2024 Democrats might well be in a position to nominate someone younger and more reform-minded than Biden and put Trumpism behind the country once and for all.

That all seems a lot more plausible than a Biden-led effort to trigger a contested election and a constitutional crisis whose outcome could depend on “what the military would do in this situation.” No, Trump’s the only presidential candidate with sufficient contempt for the Constitution, the rule of law, and most important, any limitations on his own powers to plunge the country into chaos for the pure hell of it.

Would Biden Contest a Trump Electoral College Win?