Will Democrats use the nuclear option to blow up the election?
Imagine waking up the morning after the election this November with the unclear result over who is the next president. Suppose that Donald Trump fails to capture the popular vote by a wider margin than in 2016 and loses some states he carried that year. With a slim majority in states like Florida and Pennsylvania, he could still garner 270 electoral votes.
But would Democrats accept such an outcome? There is a chance that legislatures in blue states could effectively overturn the election result through a means available in the Constitution. This nuclear option has never been tried before, but it could tear the country down.
If Trump has a narrow victory in one or more blue states, or a contested result, there is a chance that the process would be completely taken out of the hands of voters. A new precedent and a clause in the Constitution may lead us to the perfectly legal case where Trump wins the mandated number of states, yet Joe Biden is sworn in on January 20.
Tradition dictates states, and several districts for Maine and Nebraska, to send their delegations to the Electoral College based on the popular vote winner. However, this mechanism can change. A landmark decision from the Supreme Court has found that states can force the electors to vote in a certain manner. Further, Article Two of the Constitution allows for wide discretion with the states to appoint the electors, and efforts such as the National Popular Vote Compact also chip away at the idea that states will definitely send electors who reflect local popular wishes.
State lawmakers could exert control over electors, undermining the will of the voters and impacting the result on a national level. Take Minnesota, for instance, where Trump lost by around 40,000 votes in 2016. If he scores a narrow victory in the state this year, he could still lose the electoral votes. The legislature is split between the parties, but Democrats have a majority in the lower chamber. A legislature in control by Democrats could send its own electors, regardless of the popular vote result. If votes are contested, states with split legislatures could send no electors at all.
All this spells potential political disaster. The electoral votes are counted by Congress on January 6, as the Constitution declares that if there is no winner of at least 270 electoral votes, the election is thrown to the House, which is divided by state delegations of representatives. The election for vice president is thrown to the Senate. Since the count of electoral votes comes after the new Congress convenes, the party with majority control of the branch could determine the fate of the president.
Democrats are already meeting to wargame what might happen if Trump wins in a narrow margin. Leaked strategy sessions suggest Democrats do not trust voters, under our current system, to select the president. In one campaign discussion, the former Hillary Clinton campaign chairman John Podesta was playing Biden and called for the governors to send their own delegations of electors in any states that Trump wins by a narrow margin. Such comments reflect recent comments from Clinton that Biden should just not “under any circumstances” concede the election.
Wargame scenarios also tie in issues like the potential role of the military. One does not need a crystal ball to understand how the articles based on anonymous sources about Trump allegedly demeaning service members could be an attempt to shift the narrative in the case of an unclear result. If Democrats seek to nullify the result of this election with such a nuclear option, it would mark the largest political crisis since the Civil War. For all the traditions which Trump has been accused of breaking, none could be even remotely close to what would amount to a revolution.
Democrats have their fingers on the button to destroy one of the pillars of democracy. They destroyed the filibuster in 2013 with their nuclear option to confirm nominations from Barack Obama. Mitch McConnell at the time said the Democrats would regret it. Four years later, Republicans used the same deal to confirm Neil Gorsuch to the Supreme Court. Democrats are playing with fire and, much like seven years ago, both their party and the United States will suffer if they decide to press the button.
Kristin Tate is a libertarian author and an analyst for Young Americans for Liberty. She is a Robert Novak journalism fellow at the Fund for American Studies. Her newest book is “The Liberal Invasion of Red State America.”
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