In 2000, Vice President Al Gore conceded a disputed presidential election to George W. Bush after the U.S. Supreme Court effectively ended his legal challenge to the Florida vote by the Republican State Secretary who had certified it. As was widely recognized at the time, the Court’s cutoff of the recount of the vote ordered by Florida’s Supreme Court preempted that body’s sovereign jurisdiction.
Gore himself could have appealed to the U.S. House of Representatives, the final arbiter in presidential elections. In the Republican-controlled House, which had only two years earlier voted to impeach Bill Clinton, his chances of prevailing were doubtless zero to none. There was still an argument to be made, however, for taking this last step. The Supreme Court itself had voted on strictly ideological lines in reaching its decision, with five conservative justices ruling in favor of Bush’s suit against the recount and the four liberal ones in favor of proceeding with it. Among the majority was Sandra Day O’Connor, who said in advance of the Court’s hearing that Gore’s election would be a disaster that had to be blocked at all costs.
In other words, Sandra Day O’Connor got to proclaim George W. Bush as the 43rd president of the United States. The votes of 105 million Americans were thereby annulled. Only O’Connor’s vote counted.
Gore’s stated reason for not requesting a determination from the House of Representatives was that it would create a crisis of authority in the country, with ripple effects around the world. It was better to accept a legal ruling, however dubious, than to demand a political one.
I thought Gore was wrong at the time. It seemed to me worse to accept an election by nine justices who should never have been sitting in judgment on it than to require the House of Representatives to perform its constitutional duty, which was to ensure that the president actually elected by the people took office. At the same time, I recognized that Gore had what he took to be the higher interest of the country at stake in avoiding a rancorous debate that would have divided the country. He gave up an office he had clearly won on the basis of the national popular vote. Four years later, John Kerry similarly refused to challenge a vote outcome in Ohio that many thought had been stolen from him, and, twelve years after that, Hillary Clinton accepted defeat in an election in which she had nearly three million more popular votes than her rival, and in which both foreign interference and suppressed voting had factored in critical states.
Even Richard Nixon had accepted defeat in 1960 on the basis of a dubious vote count in Illinois. That’s democracy, folks. It’s a blood sport in which the loser is expected to take his licking, fairly or not.
At least it’s been that way up till now.
In 2016, Donald J. Trump was asked an odd question as the presidential election approached: Would he be willing to accept the result? Trump’s reply was that he would accept it if he won, and that if he didn’t, he would see. It was the answer a dictator would give.
Trump did win the election, or at least his victory was not contested. But that alone didn’t satisfy him. He insisted that he had won not only a majority of the Electoral College, but the popular vote as well, and not by a handful but by the exact margin, three million, that Clinton had above his own. He appointed a commission to find the stolen or fraudulent votes. It found nothing. Trump quietly disbanded the commission. He did not abandon his claim to have won the popular vote. Nor has he done so to date.
This should be remembered as the 2020 election approaches. Most observers laughed Trump off when he ran for president. Most dismissed his comment that he would not necessarily concede defeat if he lost. Few thought he was serious about winning to begin with. Certainly, he could not imagine himself capable of governing. And that presumption was correct, at least if one defined governance as the exercise of the presidential office within a democratic system. What Trump has grasped, however, is the exercise of power in its crudest sense. It is the source of his admiration for tyrants abroad. Tyrants enjoy power, and don’t give it up voluntarily. They certainly don’t allow themselves to be voted out of office. Why should we assume that Trump would do so?
Some commentators have begun to address this question, rather gingerly so far. Now, Speaker of the House Nancy Pelosi, herself third in line for the presidency, has put it directly on the table. In an interview last week, she stated baldly that the country must prepare itself for the possibility that, in the event of a close election, Trump might challenge defeat and refuse to yield office.
Pelosi’s solution to this problem is to produce a Democratic majority so large that Trump could not credibly contest it. Her game plan is to capture the center-left of the electorate, including Independent voters. That entails eschewing impeachment, which in her view would only arouse Trump’s base and alienate a significant number of Independents.
Pelosi is a serious thinker and strategist. Her views deserve consideration and respect. There are two problems with her plan, however. The first is that Joe Biden, the presidential candidate implied by her argument, is anathema to a good part of the Democratic base himself. The second is that Trump could reject not only a small margin of defeat, but a large one too. The Electoral College would not meet for several weeks after the election to cast the votes that formally elect the president, assuming it was permitted to meet. Trump would continue to hold all the powers of his office for several weeks after that, including control of the military and the Justice Department. He could tie up the courts in various suits, as he has in concealing his business and tax records and refusing to comply with Congressional subpoenas. He could declare a national emergency, and indeed create one. He would still have a Republican Senate, at least for two months. He would also have the Supreme Court, which thwarted the will of the people in Bush v. Gore.
When it comes to it, who would actually remove a president who refused to leave office? The House Sergeant-at-Arms? The Capitol Police? The cavalry?
Suppose, too, that Trump, running far behind in the polls, wouldn’t wait for an election to declare a national emergency? Suppose that emergency, as defined by him, was so grave as to require that the election be indefinitely postponed? Who would do what then?
We have let Trump get away with so much already that these scenarios are not fantasies but real possibilities to be faced. And we can’t wait until they are upon us.
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