The president refuses to acknowledge Biden’s win, but experts say there is no constitutional path forward for him to remain in the White House
Joe Biden won the presidential election, a fact that Donald Trump and other Republicans refuse to acknowledge.
There are worries the president and other Republicans will make every effort to stay in power. “There will be a smooth transition to a second Trump administration,” Mike Pompeo, the secretary of state, said last week. William Barr, the attorney general, has also authorized federal prosecutors to begin to investigate election irregularities, a move that prompted the head of the justice department’s election crimes unit to step down from his position and move to another role. On Tuesday, Trump fired Christopher Krebs, the director of the federal agency that vouched for the reliability of the 2020 election and had pushed back on the president’s baseless claims of voter fraud.
Yet, despite all of Trump’s machinations, it is extremely unlikely he can find a way to stay in power or stage a coup. Here’s an explanation of why:
Not really. The electoral college meets on 14 December to cast its vote for president and nearly every state uses the statewide popular vote to allocate its electors. Biden is projected to win far more than the 270 electoral votes he needs to become president. His victory doesn’t hinge on one state and he has probably insurmountable leads in Michigan, Nevada, Wisconsin, Pennsylvania and Arizona.
There is a long-shot legal theory, floated by Republicans before the election, that Republican-friendly legislatures in places such as Michigan, Wisconsin and Pennsylvania could ignore the popular vote in their states and appoint their own electors. Federal law allows legislatures to do this if states have “failed to make a choice” by the day the electoral college meets. But there is no evidence of systemic fraud of wrongdoing in any state and Biden’s commanding margins in these places make it clear that the states have in fact made a choice.
“If the country continues to follow the rule of law, I see no plausible constitutional path forward for Trump to remain as president barring new evidence of some massive failure of the election system in multiple states,” Richard Hasen, a law professor at the University of California, Irvine, who specializes in elections, wrote in an email. “It would be a naked, antidemocratic power grab to try to use state legislatures to get around the voters’ choice and I don’t expect it to happen.”
For lawmakers in a single state to choose to override the clear will of its voters this way would be extraordinary and probably cause a huge outcry. For Trump to win the electoral college, several states would have to take this extraordinary step, a move that would cause extreme backlash and a real crisis of democracy throughout the country.
“There’s a strange fascination with various imagined dark scenarios, perhaps involving renegade state legislatures, but this is more dystopian fiction than anything likely to happen,” said Richard Pildes, a law professor at New York University. “The irony, or tragedy, is that we managed to conduct an extremely smooth election, with record turnout, under exceptionally difficult circumstances – and yet, a significant portion of the president’s supporters are now convinced that the process was flawed.”
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