TARGETING TO REVERSE ELECTORAL DEFEAT

At the conclusion of the first presidential debate, moderator Chris Wallace asked President Trump if he would pledge to not declare victory until the election has been independently certified. His answer was illuminating: "If I see tens of thousands of ballots being manipulated, I can't go along with it." It is obvious that the president's campaign plans to aggressively challenge election results, especially in battleground states. As the 2020 presidential election is creeping closer, and as President Trump's poll numbers remain steadily well below those of his challenger, rumors about how the president intends to pull victory out of the jaws of defeat are everywhere. For most Americans contemplating disputing the results of a routine quadrennial election, an expression of our democratic traditions, appears unimaginable. For President Trump, losing an election appears equally unacceptable. It helps to comprehend how our system works to understand what is involved. While most of us believe that we vote to elect a president every four years, we actually select our chief executive indirectly. In reality, we vote for a slate of electors which ultimately decides who wins. The election of a president is essentially a two-step process. In each state voters cast ballots. In nearly every state, the candidate who gets the most votes wins the "electoral votes" for that state, which become part of the Electoral College. The president and vice president are ultimately elected by the Electoral College, consisting of 538 electors from the 50 states and Washington D,C.. Electors are nominated by a political party and pledged to vote for the candidate to which the elector is pledged. Most do. Since the election of 1824, when John Quincy Adams defeated Andrew Jackson by garnering more electoral votes through the House of Representatives, most states have appointed their electors winner-take-all, based on the popular vote on election day. Article II, section 1, clause 2 of our Constitution empowers the state legislature to determine the manner by which the state's electors are chosen. The number of electors each state is entitled to equals the combined total number of representatives the state has in the Senate and the House. Mr. Trump understands how the Electoral College can shift the outcome of an election in his favor. In 2016, he lost the popular vote by close to 3 million votes, but, with 270 needed to be victorious, he won the Electoral College by 304 to 227. There are essentially two ways President Trump can attempt to overthrow a win by former Vice President Biden. He can activate lawsuits challenging mail-in ballot results, something his campaign has already prepped the voting public for over the past six months. He can file a series of lawsuits aimed at blocking the counting or disqualifying of mailed-in ballots. In such a case, the Supreme Court will most likely end up deciding the outcome, not the voters. This process would be reminiscent of what happened during the 2000 election in Bush v. Gore, which many considered less an exercise in legal reasoning than in power, given the 5-4 Republican split on the Court. The second, more complicated, method would involve manipulating the electoral count in enough swing states to alter the national outcome. The idea is to target states with Republican legislatures that voted Democratic. Since the Constitution gives each state the power to certify its slate of electors, legislatures might be convinced to change the outcome of the election, override the vote count, and send Trump supporters to the Electoral College. According to one of Mr. Trump's advisors: "The state legislatures [could] say, "All right, we've been given this constitutional power. We don't think the results of our own state are accurate, so here's one slate of electors we think properly reflect the results of our state." Questions like: "How far is he willing to go to win?" and "Will he leave office if he loses?" were once seen as far-fetched hypotheticals pondered by experts and pundits. Now they have become mainstream concerns. Mr. Trump's often repeated exclamation that "the only way we're going to lose this election is if the election is rigged," can no longer be dismissed as pure bluster. Theo Wierdsma