Trump's Gambit

Donald Trump is not backing down and he certainly isn’t conceding anytime soon. And really – why should he? These are pretty close margins that Biden leads by in some key states. We seem to have a lot of smoke about voter fraud but no fire at the moment. Any other Republican before him would have quit by now but not DJT. I wanted to go over Trump’s strategy and see if he has any chance at winning and I think a path exists – although I think the odds of it succeeding are very small although if anyone can pull this out it would certainly be this guy.

In Georgia, a hand recount is going to happen starting today. In Pennsylvania, state house Republicans are calling for a legislator-led audit of the votes. In Wisconsin, the assembly speaker has called for a review of the election after a massive midnight ballot dump that went for Joe Biden. In Arizona, the state senate president is calling for an independent analysis of voting data. Michigan GOP state senators are requesting a full audit. At this point, the hope is that audits swing these states that have a very narrow Biden lead back to Trump or we actually find some evidence of voter fraud. Of all Trump’s options this would be the best possible outcome not only for Trump but also for the country. There would still be riots but if narrow margins switched and/or voter fraud was rife most people would understand why the election went the way it did.

Let’s assume some states flip with audits or there is clear evidence of fraud displayed in multiple states that would decidedly swing the election back to Trump – what then? I don’t think it’s possible to hold another vote in states if there was fraud. It’s possible that the legislators of those states with fraud could then ignore the vote and decide to certify electors that then vote for Trump. It’s possible as Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin all have Republican legislatures. However, there’s almost no way a legal challenge for this wouldn’t end up in front of SCOTUS. If this drags on and there’s just no clear winner and there are no good options for SCOTUS there’s a very real possibility we would use the process laid out in the 12th amendment to select the president.

The 12th amendment was created for electoral college ties and lays out a process for something called a contingent election where the president is selected by the House and the vice presidential race is decided in the Senate. Each Senator gets one vote and the people that are eligible to vote are the ones that won the election. So if you’re a Republican Senator like Arizona’s McSally that lost her seat – she’s out and Kelly votes. That’s already a little nuts but wait until you hear how the president gets selected. Each state gets one vote rather than House members voting directly. Each state House and Senate vote and then select an elector that goes to the House to vote. Isn’t that crazy? This process was used to select the winners in 1801, 1825 and 1877. If that situation were to happen - Trump wins. Republicans have 30 state Houses and 31 state Senates so the president is a lock. Assuming a Republican wins one of the Georgia runoff elections then Pence would be vice president.

Trump did get a win yesterday in the courts. A Pennsylvania judge ruled in his favor that the state may not count votes where the voters failed to provide proof of identification and did not cure that problem by November 9th. We don’t know how many ballots this will nullify. Another lawsuit that he has a good chance of winning is against allowing mail-in ballots after election day. The Constitution is clear that the legislature sets election rules and this decision was made by the executive and finally by the Pennsylvania Supreme Court. Again, if Team Trump wins we have no idea the number of ballots that will be thrown out. Can he get more victories in the courts? Some of the lawsuits are very broad such as the one that argues mail-in ballots are treated differently than in-person votes and this is unconstitutional under the Equal Protection Clause in the 14th Amendment. Is SCOTUS going to disenfranchise and just throw mail-in ballots out? I highly doubt that.

That’s where it stands at the moment. I think the big tell is going to be the hand recount in Georgia which begins today. If a large number of ballots start being thrown out that should have never been accepted in the first place then we’ll have some hard evidence there was some version of fraud. If that happens then that could be the first domino in a line of flipping these narrow leads in battleground states back to Trump. I’m not optimistic. Then again, Al Gore was President Elect for 37 days so who knows? The next few weeks there will be canvassing, recounts, and audits. There’s nothing to do except sit back, relax, and wait.