A LOT has been written in recent weeks about nightmare scenarios with this sitting president as we approach this nightmare election in a year rife with nightmares. But there are a few positive details enshrined in the U.S. Constitution for crises like this, and they might provide some comfort for your next six weeks.
Let's hope against hope that Election Day is a surprise landslide for Biden in all swing states, and that Trump has to skulk back to Mar-a-Lago and do a series of embarrassing interviews with Fox News about how aliens stole all his ballots. But experience should tell us that it mostly likely won't be that easy or simple, that absentee and mail-in votes will be getting counted in some state or other — or multiple states — for days or weeks after the election, all while Trump declares victory every hour on the hour.
Hopefully the Supreme Court won't once again be tasked with deciding to shut down a recount, which is what could happen if there's one state still counting ballots on December 12, or on December 14 when state electors are supposed to cast their deciding ballots.
If, god forbid, the election continues to be contested into the new year, the Associated Press lays out the next steps. According the Twelfth Amendment, the new Congress that takes their seats in January will preside over a "contingent election" — something that only ever happened once, early in the country's history, when John Quincy Adams became president in 1825.
In this scenario, the House will cast the deciding votes for president, choosing among the three candidates who received the most electoral votes. The Senate chooses the vice-president.
If by some pattern of chaos a president still hasn't been voted in by the House by Inauguration Day, the Vice-President-Elect as chosen by the Senate becomes acting president until a president is picked. If neither has been successfully voted in by that point, then under the Presidential Succession Act, the Speaker of the House becomes president. Which, as far as we know, will be Nancy Pelosi.
This is a lot of ifs, and it's not hard to imagine that some constitutional crisis will arise before these constitutional solutions — which Trump will not like! — can take effect.
Trump has his conservative majority on the Supreme Court, but Chief Justice John Roberts is no William Rehnquist, and it's not implausible to see that he would not want the court wading into the so-called political thicket again the way the court did in 2000. In multiple 5-4 decisions this year, Roberts sided with the liberal bloc likely in order to avoid having the court be seen as overtly political, and he is nothing if staunch about this idea.
"When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the court function and the results in our cases do not suggest otherwise," Roberts said last year, pushing back on statements by President Trump that cast the court in specific partisan terms.
So, yes, Trump could make things extremely stressful this November, and possibly into December or January. But if the court stays out of it this time, and if Democrats hold majorities in both houses of Congress, maybe everything will be okay in the end. Will millions of Americans believe that this is unconstitutional? Probably. Will there be an actual Civil War? Probably not.
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