IT LOOKS as though it is going to be curtains for President Donald Trump next week. Swing states like Florida, Pennsylvania and Ohio have been badly affected by the coronavirus and are swinging away from Trump.
Millions of voters have already voted by post, which pollsters believe is bad news for Trump and that the election is now Joe Biden‘s to lose. That said, I would not write him off just yet. It was Hillary Clinton’s to lose in 2016 and she lost and he won in key swing States even though she won an overall majority of three million.
Trump won because of the way the Electoral College system works in the USA. What the Founding Fathers devised was a system directed at satisfying two contradictory aims: representative democracy based on the principle of majority rule, and political equality between states of the Union.
The US Congress comprises the House of Representatives and the Senate. Representatives are elected in proportion to the population of each state, which is democratic; and two senators are elected from each state, which promotes political equality between states with different populations.
Different powers are allocated to each with checks and balances between them and between Congress and the President, designed to preserve the Union. For example, to impeach a president the Representatives bring the case but the Senate decides at a trial presided over by the Chief Justice.
The executive arm of the US government is vested in the President but his election also satisfies the twin demands of representative democracy and political equality between states. The way this is done is through an Electoral College. Originally the idea was to have Congress elect the president but that was not in line with the separation of powers. On the other hand an executive directly elected by the people was too novel an idea and gives too much power to the most populous states. So a compromise was reached whereby the president is not elected directly by the people but by temporary electors from each state equal to the number of congressmen from each state – for example Florida has 29 electors, equal to the 27 Representatives and 2 Senators it sends to the US Congress.
These electors are actually just votes with no discretion to do other than reflect the result. Presidential candidates fight each state on a winner takes all basis and collect all the electoral votes in states they win. What then happens is that the votes from each state are totted up and the candidate that wins the magic number of 270 votes becomes president.
The important point, however, is that the president is chosen indirectly by the people of each state in accordance with the same formula that allocates the number of Representatives and Senators in Congress. He personifies both the People and the States of the Union that gives the office of the president huge political power.
Trump, however, does not play by the rules and anticipating defeat, he gave no assurances that he would accept the result if he is not successful. I don’t think he would dare stay in power after being defeated beyond expiry of his term as it is a constitutional red line no president can cross without a revolution.
The American constitution is sacrosanct. It is what made a country of immigrants a nation, and it has been the source of American exceptionalism. The ideas and underlying values of the American Constitution of 1787 are still exceptional. We have not moved much since the Enlightenment when the Constitution was promulgated, and its underlying values are still used by conservative Justices of the Supreme Court when interpreting and applying it to modern cases.
Conservative Justices of the Supreme Court, including Justice Amy Coney Barrett, appointed by Trump only last week, believe that the Constitution’s underlying values are timeless, and that the best guide to its interpretation is its original intent. They are now the majority and will develop the law on the basis that the only way of changing the American Constitution is by amendment rather than judicial exegesis.
But if Trump thinks that a conservative Supreme Court may somehow extend his stay in the White House, all I can say is that the original intent of the Founding Fathers was to limit the president’s term in office lest he arrogated to himself the powers of a king whom they had overthrown in America.
The American Constitution provides that a president cannot stay in office if he is not re-elected. His term ends at noon on January 20 at the end of a president’s fourth year in office. Unlike the position in the UK where the removal vans arrive in Downing Street the day following defeat, a defeated president stays in power during the hiatus between the election, usually in November, and inauguration of the new president on January 20. A president’s term ends by operation of law and cannot be extended – not even by the Supreme Court.
What Trump probably meant was that if defeated he would challenge the results in the law courts on the basis that the election was stolen from him by widespread fraud made possible by the prevalence of postal voting. There is precedent for this in the Supreme Court in the case of Bush v Gore in 2000. Al Gore the Democratic candidate lost by a narrow margin in Florida and sought a recount. In the end a conservative Supreme Court found against Gore and George W Bush was elected president.
Trump is highly litigious and hates losing. On a short visit to Britain when Theresa May was prime minister, he advised her to sue the EU over the terms on which Britain was to exit the EU. I thought of that advice when thinking whether and how Trump will challenge the result in key swing states.
It is possible that what he will do is declare himself winner on the votes cast on November 3 and sue to exclude postal votes on the grounds they are tainted by fraud. I doubt the Supreme Court would buy into such manipulation of its process but Trump has refused to confirm he would accept the result if he loses and this is the only way he could try and stay in power beyond January 20, 2021.
Alper Ali Riza is a Queen’s Counsel and a former part time judge in England