What if Trump loses but won't concede? How a constitutional crisis could play out

President Trump speaks to reporters at the White House

Sept. 24, 2020 1:27 PM PT

WASHINGTON — As President Trump, backed by his army of attorneys, has laid groundwork to undermine an election result that does not cast him as victor, Republican lawmakers found themselves in the astonishing position Thursday of having to reassure Americans there would be a peaceful transition of power should he lose.

The Republican-controlled Senate went so far as to pass a resolution saying as much. Meanwhile, amid the furor over Trump’s latest, most brazen remarks, it became clearer just how the constitutional crisis could play out should the president be defeated and persuade his allies to join him in rejecting the vote tallies.

Such a crisis still seems unlikely; Trump’s success in such a scenario would hinge on his persuading Republican-controlled legislatures in swing states to embrace his unfounded claims of fraud. Yet voting experts worry, should the election result be close.

The anxiety intensified on Wednesday, as Trump declared he would not commit to a peaceful transition if some states continue to send all registered voters mail-in ballots, which is the law in several places. On Thursday, the president doubled down on those comments, even as critics likened them to the words of foreign authoritarians.

The campaign has spoken with at least one Republican leader in Pennsylvania about the possibility of citing voting irregularities to reject a Joe Biden win there and have the legislature direct the state’s electors to back Trump, according to the Atlantic. It’s a strategy Trump could also pursue in other states.

“Unfortunately, the risk of this kind of thing happening has increased,” said Ned Foley, an election law scholar at Ohio State University who has researched how such a scenario could unfold.

The Trump campaign denied the strategy is under consideration, yet a senior campaign official, speaking on the condition of anonymity, said the legal team would explore every option to ensure the president’s reelection.

“If we think it’s being stolen, we’re going to fight like hell,” the senior campaign official said Thursday, but they added that Trump is not planning to hold on to power if he loses fairly. “I think that’s what the president was saying. But I think November could be a really bad month for this country.”

The president’s pronouncements are worrying even some in the Pentagon, after he said earlier this year that he planned to deploy a massive show of force by law enforcement on election day, in what he described as national poll-watching effort.

No law allows the president to authorize such force for domestic use, but Trump’s recent deployment of the National Guard to clear protesters outside the White House has raised concerns about how he would respond to postelection protests. If Biden is certified the winner and Trump refuses to leave office, military commanders would confront a heretofore unimaginable situation, taking orders from a disputed commander in chief even as his foes look to them to help remove him.

A contested election that spills into a fight in state legislatures would trigger constitutional chaos, Foley said. At several points between election day and the inauguration, things can break down if any states opt to disregard their results and Congress can’t agree on how to count the states’ electors.

The worst-case scenario is that a deadlock drags into mid-January and that the House and Senate are in dispute about who should occupy the White House as the president’s term expires on Jan. 20 under the Constitution.

Foley previously had mapped out that eventuality with the mind-set of a scientist contemplating a giant asteroid crashing into Earth: a remote possibility, but one to prepare for nonetheless. But the election meltdown scenario has grown considerably less remote, he said, as the rapid shift to voting by mail — and more by Democrats than Republicans — has created outcomes in which a Republican appears to have won on election day but ultimately loses when all the mail-in votes are tallied in the days that follow.

There were several such outcomes in 2018, confusing voters accustomed to having a winner declared the night of the election and creating an opening for unfounded charges of impropriety.

“Trump has broken so many norms and made such incendiary statements, including about not agreeing to a peaceful transition of power, that my alarm bells are going off,” said Richard Hasen , author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.” “It doesn’t mean this will happen. But it does mean we are right to worry about it happening.”

In anticipation, Democratic lawyers working with the Biden campaign are examining the election laws in the battleground states as well as the Constitution’s rules for counting the electoral votes.

They worry that Trump will hold an election-night lead in a crucial state, declare victory before the bulk of the mail ballots are counted, and send his lawyers to court to try to stop a complete count. It is a move Trump has signaled could come, by his repeatedly declaring mail ballots to be fraudulent.

Such legal action could create an opening for Republican state lawmakers in places such as Pennsylvania, Michigan and Wisconsin to declare they will cast their state’s electoral votes for Trump. Democratic governors in each could stand in the way, bringing to Congress a competing slate of electors for Biden, throwing the process into further dispute.

Nothing like this has happened in America since the 1876 contest between Republican Rutherford B. Hayes and Democrat Samuel Tilden.

Most Republicans appear to have limited appetite to put the country through anything like that again, absent a razor-thin election result and compelling evidence that vote tallies were flawed. Several Republicans in Congress on Thursday made statements vowing a peaceful transition, though they avoided criticizing Trump for his statements.

Democrats used the controversy to energize their voters, urging them to turn out in numbers so large that there is no dispute about the victor after election day.

“A landslide victory for Biden will make it virtually impossible for Trump to deny the results and is our best means for defending democracy,” said independent Sen. Bernie Sanders of Vermont. He said Trump is “sowing the seeds of chaos, confusion and conspiracy theories by casting doubt on the integrity of this election and, if he loses, justifying why he should remain in office.”

Some Republicans speculated that Trump isn’t moving to hang on to power at all costs but to save face should he lose.

“The idea a president wouldn’t leave office after losing is obviously alarming, but I don’t think many Republican officials think that’s a serious threat,” Alex Conant, a Republican strategist, said.

“This is more about spinning a loss than trying to maintain power,” he said. “But comments like this will not help him win the election. It’s motivating to Democrats and a turnoff to suburban swing voters who just don’t like the chaos of Trump’s presidency. If this election is about Trump refusing to leave office if he loses, Republicans are going to get crushed.”

Trump’s campaign, which has already burned through $1 billion of the $1.3 billion it has raised, has spent heavily — roughly $30 million over the last two years — on its legal team. It includes in-house lawyers as well as attorneys from law firm Jones Day in Washington and the Los Angeles firm of Charles Harder, which specializes in media defamation suits.

Already, the campaign has challenged election plans in a number of states and fought aggressively to curtail voter turnout. It has fought to reduce eligibility to vote by mail, purge voters from the rolls, tighten voter ID requirements, reduce or ban the use of drop boxes, and discard mail-in ballots that have technical flaws or arrive after election day.

Times staff writers David S. Cloud, Jennifer Haberkorn and Janet Hook contributed to this report.