Even though election lawsuits are being dismissed, Trump may still have a path to victory

The scenario is unlikely but possible
Published: Nov. 18, 2020 at 3:29 PM MST
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TWIN FALLS, Idaho (KMVT/KSVT) - President Donald Trump’s allegations of voter fraud have failed to uncover any nefarious or reckless wrongdoing, but even if his lawsuits fail to uncover any substantial cases of fraud to overturn the election results, he may still have a path to a second term.

Since Election Day, President Trump has been making the case that the 2020 Election has been stolen from him when he made the comment that his leads in critical states were “mysteriously” disappearing.

“We were getting ready to win this election, frankly, we did win this election,” Trump said.

Since the election, his attorneys and supporters have filed lawsuits in six battleground states — challenging the ballot counts and making accusations of mail-in voter fraud. During a press conference shortly after the election, the president said, “We want openness and transparency. No secret count rooms. No mystery ballots. No illegal votes being cast after Election Day.”

The lawsuits and accusations have riled up his supporters, leading to rallies and marches with his supporters holding up signs reading “Stop the Steal”. However, the president has also faced immense criticism for his actions, even from Republican leaders.

“He made very serious allegations without any evidence to support it,” said U.S Sen. Pat Toomey of Pennsylvania.

It has been reported that more than two dozen lawsuits have been filed in key battleground states, and the majority of the lawsuits have already been dismissed or withdrawn. There is also a recount going on in Georgia, and a possible recount in Wisconsin that would cost the Trump campaign $7.9 million upfront. However, even the lawsuits and recounts don’t prevail in overturning election results, the actions alone may be enough to help President Trump get a second term.

In order for the electoral votes submitted by the state to be considered valid by Congress, all election disputes, including court challenges, have to be resolved by Dec. 8, known as the “safe harbor” day. It is the date set by a federal statute (3 U.S.C. 5).

When the members of the Electoral College meet in their respective states on Dec. 14, there could potentially be a dispute about electors in certain swing states, because the lawsuits and recounts weren’t resolved by Dec. 8. This could create a dilemma, as to which candidate’s slate of electors should be recognized. In a state like Pennsylvania, the Democratic Secretary of State might award Joe Biden’s slate of electors the electoral votes, because he is ahead in votes, and as a result will certify the win for him. However, the Republican state legislatures could potentially award Trump’s slate electors, because they might have an issue or questions about how the ballots were cast and counted.

The scenario isn’t unprecedented. It happened in the 1876 race for president between Rutherford B. Hayes and Samuel Tilden when Republicans and Democrats submitted competing slates of electors in certain swing states that could have pushed the election in either candidate’s favor.

If such a scenario were to arise again on Jan. 6, 2021, it would be up to Congress to settle the dispute when the House and Senate meet to count Electoral College votes. If the House and Senate disagree on which slate of electors to recognize they could ask the state governor to intervene and determine who the winner is.

Another scenario is under the 12th Amendment, in which the House decides the President and the Senate decides the Vice President. In this scenario, each state would get one vote, and such a case would benefit the Republican candidate. Even though the House Democrats have a majority in total representation, the Republicans control the majority of state delegations. The same would pertain to the Senate. In such a scenario Trump and Pence could be re-elected for a second term if the composition of the House and Senate stays the same, and the elected officials vote along party lines. So hypothetically, Trump doesn’t need to win his lawsuits. All he needs to do is delay the certification process through litigation and recounts.

Russ Tremayne, who is an associate professor of history at the College of Southern Idaho, thinks the scenario is highly unlikely because if the state legislatures were to reverse the will of the voters they would be punished down the road.

“And I don’t think the legislatures are that foolish,” Tremayne said.

He also said the scenario would bet longer than a long shot for Trump, even though it is constitutionality and legally possible. However, Tremayne thinks Trump is putting himself in a position for another run in 2024 and is trying to create the narrative with his supporters that he didn’t lose the 2020 Election — it was stolen from him

“Now what I would project is that Trump will be major political player, and even if it’s not Donald (Trump) it might be Donald (Trump), Jr., or Ivanka (Trump) so I see Trump as kind of a political party,” Tremayne said. “He’s powerful and popular. He got over 72 million votes.”

Tremayne said whatever political charades are being played right now, he thinks it’s time for Republican leaders to recognize Joe Biden and Kamala Harris as the projected winners of the 2020 Election and dismiss talks and allegations of voter fraud.

“I am begging political leaders across the country, and in the state of Idaho to stand, and let’s move on,” Tremayne said. “Standing up means calling Biden, congratulate him and moving on to the transition.”

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