Donald Trump aims to stop states Joe Biden won from certifying votes

President Donald Trump spelled out elements of his multi-state legal strategy to try to pry back President-elect Joe Biden‘s victory as called by the networks, claiming through a recount he would strip Georgia away from the Democrat’s column.

A recount is going ahead with a hand county-by-county of the state, where Biden leads Trump by 14,000 votes.

On Wednesday, the state’s top election official, announced the beginning of the ‘audit,’ which came after two Republican Senate candidates called for his resignation, as Trump puts forward a flurry of charges of election fraud without providing evidence.

President Trump tweeted to complain that North Carolina hadn't completed its count yet, in a state where he leads President-elect Joe Biden, while saying he 'will win' in Georgia after a recount

President Trump tweeted to complain that North Carolina hadn't completed its count yet, in a state where he leads President-elect Joe Biden, while saying he 'will win' in Georgia after a recount

President Trump tweeted to complain that North Carolina hadn’t completed its count yet, in a state where he leads President-elect Joe Biden, while saying he ‘will win’ in Georgia after a recount

Trump tweeted about his strategy after the Associated Press called Alaska for him Wednesday, eight days after Election Day, although he has dismissed media calls in other states, including Arizona, Wisconsin, and Michigan.

‘It took long enough! What is taking North Carolina so long? Are they looking for more ballots to fix that one also?’ Trump asked.

Georgia is a close battleground where Trump leads, with Biden trailing by 73,000 votes there. 

‘Now with a recount, we will win Georgia also. Pennsylvania & Michigan wouldn’t let our Poll Watchers & Observers into counting rooms. Illegal!’ Trump claimed.

Twitter called Trump's claim about election fraud 'disputed'

Twitter called Trump's claim about election fraud 'disputed'

Twitter called Trump’s claim about election fraud ‘disputed’

Election bureau staff Deb McDonald opens provisional ballots at the Schuylkill County Election Bureau in Pottsville, Pa. on Tuesday, Nov. 10, 2020. Democrat and Republican poll watchers were present. Trump claimed in a tweet that the state 'wouldn't let our Poll Watchers & Observers into counting rooms'

Election bureau staff Deb McDonald opens provisional ballots at the Schuylkill County Election Bureau in Pottsville, Pa. on Tuesday, Nov. 10, 2020. Democrat and Republican poll watchers were present. Trump claimed in a tweet that the state 'wouldn't let our Poll Watchers & Observers into counting rooms'

Election bureau staff Deb McDonald opens provisional ballots at the Schuylkill County Election Bureau in Pottsville, Pa. on Tuesday, Nov. 10, 2020. Democrat and Republican poll watchers were present. Trump claimed in a tweet that the state ‘wouldn’t let our Poll Watchers & Observers into counting rooms’

Ballots counters and observers in North Carolina continued counting absentee ballots Monday morning 3 days after the election is called for Biden. Vote counting, Raleigh, USA - 10 Nov 2020

Ballots counters and observers in North Carolina continued counting absentee ballots Monday morning 3 days after the election is called for Biden. Vote counting, Raleigh, USA - 10 Nov 2020

Ballots counters and observers in North Carolina continued counting absentee ballots Monday morning 3 days after the election is called for Biden. Vote counting, Raleigh, USA – 10 Nov 2020

Biden already captured the Electoral College, leading Trump 279 to 217, even without Georgia. If Trump were to somehow pry it away through a recount, it would only bring his total to 233.

Hi comments about Pennsylvania and Michigan suggest that he will try to find a way to throw out the results in the states. That would grab another 36 electoral votes from Biden’s total – depriving him the White House. 

By snatching back the ‘blue wall’ of Michigan, Pennsylvania, and Wisconsin, Biden carried the states by a total of more than 200,000 votes, far surpassing Trump’s 2016 vote margins in the state.

His comments about Michigan and Pennsylvania point to a plan floated even before the election where state legislatures would declare the count fraudulent amid a flood of mail-in ballots, then use their majority status to muscle through a set of electors for Trump despite the vote for Biden. 

If that were to happen, it would set up a clash between the House, which Democrats control, and the Senate, where Republicans are one seat away from keeping their majority, over which electors to seat – with known results.

Trump fired off the tweet Thursday as he prepared to meet with Vice President Mike Pence, who has backed up his decision to pursue legal remedies after alleging fraud. Trump also meets with Secretary of State Mike Pompeo, who spoke Tuesday about a ‘smooth transition to a second Trump administration’ when questioned about blocking the transition process to teams readied by President-elect Biden. 

Twitter called Trump’s claim about election fraud ‘disputed.’ The New York Times called top election officials in every state and found no evidence of large-scale fraud.

There have been cracks in Trump’s legal strategy. In Michigan, a mailman who signed an affidavit claiming he overheard a conversation about possible election fraud pulled back his statement in an interview with postal IG officials. He said he ‘didn’t hear the whole story, my mind probably added the rest.’ Trump had called the carrier, Richard Hopkins, a ‘patriot’ for launching his claims. 

Trump’s tweet came after former George W. Bush political guru Karl Rover wrote in the Wall Street Journal that Biden’s win won’t be overturned.

‘That Mr. Biden’s margin of victory was much slimmer than projected can be credited partly to Mr. Trump’s emphasis in the closing days on their substantive differences—discussing fracking in Pennsylvania and toleration of socialism in Miami. But it wasn’t enough,’ he wrote.

Amid Trump’s constant claims of electoral fraud, which the president blasted across his Twitter account Thursday, Senate Minority Leader Charles Schumer of New York tried to shame Republicans into distancing themselves from him, accusing them of ‘cowardice.’

Only four Senate Republicans have congratulated Biden, although two senior GOP figures, Oklahoma’s James Lankfrod and Iowa’s Charles Grassley, have said Biden should start receiving intelligence briefings.

‘Instead of working to pull the country back together .. Republicans in Congress are spreading conspiracy theories, denying reality and poisoning the well of our democracy,’ Schumer said at a press conference.

‘The Republicans should stop their shenanigans about an election that President Trump has already lost and focus their attention,’ he continued.

‘When it comes to the election, congressional Republicans don’t have the evidence, they don’t have the proof, they don’t have anything. Neither does the president. Congressional Republicans are deliberately casting doubt on our elections for no other reason but fear of Donald Trump. These Republicans are all auditioning for profiles in cowardice,’ he fumed.

TRUMP’S POSSIBLE ROADMAP TO KEEPING THE WHITE HOUSE

Donald Trump does have a precarious – and politically explosive – path to keeping the White House. To do it he needs to get Joe Biden’s wins in a series of states set aside. 

With his claim that the Supreme Court would do that looking to have evaporated, instead he has to use the procedures of the Electoral College to turn it round. 

And he needs to do it in a lot of states: if Georgia and Arizona stay on track for Joe Biden, he will have 306 votes, far above the 270 needed. Trump appears to be taking legal action, or intending to, in six states: Pennsylvania, with 20 Electoral College votes; Georgia, with 16; Michigan with 16; Arizona with 11; Wisconsin with 10; and Nevada with six.

He needs to get at least any two of the larger three states plus one more state to go Republican to get Biden under 270. 

Here is how he might manage it: 

STEP ONE: GET COURTS TO PUT HOLDS ON CERTIFYING THE VOTE IN TARGET STATES 

The vote is not official until it is ‘certified’ – that is officially declared valid – which happens later in November. Georgia certifies on November 20, and Nevada and Wisconsin are last on December 1. 

Trump is already trying to get certification put on hold in Pennsylvania and Michigan, claiming large-scale irregularities. 

OR: GET AN ‘AUDIT’ REQUESTED OR EVEN BETTER ORDERED – AND KEEP IT GOING PAST CERTIFICATION

Michigan Republican state senators have asked for an ‘audit’ claiming that allegations of irregularity need to be looked into.  This could be a useful tool if courts don’t come through: at the very least it would allow Republicans to say they don’t trust the certification because it ha snot been audited.

STEP TWO: KEEP THE CERTIFICATION ON HOLD PAST DECEMBER 8

This is the ‘safe harbor’ deadline when all election disputes must be resolved. If they are not fully played out, whoever has a court ruling in their favor at this point keeps that result. So if Trump has certification on hold in target states, he has a chance to flip them to him starting now. 

STEP THREE: GET REPUBLICAN LEGISLATURES TO AGREE TO APPOINT THEIR OWN ELECTORS

You were not voting for the president directly: you were voting for electors to the electoral college. But the Constitution does not say that electors are winners of a popular vote. Instead the Constitution says: ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.’ In the early 19th century, states rapidly moved to make the appointment of the electors the result of the popular vote; by 1832 South Carolina was the only holdout. It stuck with that approach until secession.

So Republicans in at least three and possibly more states would have to decide that because the results are not certified – or because they claim they don’t trust the certification because of an audit or the lack of one – that they can take back control for themselves. They would argue that because the results aren’t certified or trustworthy, it’s up to them to work out the will of the people.

Then – undoubtedly in the face of huge public protest – they would appoint Republicans who will vote for Trump.  

This has happened in recent history: in 1960 Hawaii had disputed elections and sent two slates of electors. 

STEP FOUR: SWEAT IT OUT WHEN GOVERNORS APPOINT THEIR OWN ELECTORS

All three of the biggest target states – Pennsylvania, Wisconsin and Michigan – have Republican legislatures and Democratic governors. So now the governors could simply appoint their own electors – voting for Biden – and say that their votes are what counts on January 6, when the Electoral College is counted and record in Washington D.C.

STEP FOUR: SURVIVE A SUPREME COURT CHALLENGE TO THE REPUBLICAN ELECTORS 

Such a dramatic change would go to the Supreme Court. It has never directly ruled whether states could do that: in 2000, three of the five justices who gave the election to Bush over Gore said that state legislatures had complete control – but that is not a precedent. Now Trump’s fate would be in the hands of nine justices, three of whom he appointed and one of whom – Clarence Thomas – said that legislatures are in charge.  

Democrats would of course argue that the governors’ electors are the right ones, and a titanic battle would play out. If Trump wins – again in the face of likely huge public protest – he is on to the final stage. 

STEP FIVE: HOPE THAT THE PENNSYLVANIA REPUBLICAN SLATES DON’T GO FAITHLESS

If Pennsylvania is one of the states to ignore the popular vote, Trump needs its 20 Republican electors to stick to the plan – but the state allows faithless electors. So all, or even some, could make a difference in an already mathematically fraught bid to keep the presidency. But assuming he has enough votes not going to Biden, it is on to Washington D.C.

STEP FIVE:  MAKE IT TO JANUARY 6 

This is D-day for the plan: The newly-sworn in Congress meets to count the Electoral College votes. The vice-president, Mike Pence, presides, over a joint session. Normally the ‘certificates’ showing how each state voted are opened in front of the vice-president, the count is recorded and with a bang of the gavel, the electoral college winner is officially declared.

Now Trump needs Republicans in the House and Senate to work together. A member of the House and a senator can jointly object to a state’s certificate when it is opened. The last time this happened was in 1877, which caused a months-long crisis, ended by compromise and followed by the Electoral Count Act of 1887. 

This time the 1887 rules come into play. If there is an objection, they split into the House and Senate and there are two hours for debate. This has only happened once, in 2005, when a tiny number of Democrats objected to Ohio’s vote count. But it was voted down overwhelmingly in both the House and Senate. 

And finally, the vote count is in alphabetical order, so Arizona will be the first battleground state where all this could be tested.  

STEP SIX: KEEP MITT ROMNEY, SUSAN COLLINS AND LISA MURKOWSKI ON TRUMP’S SIDE (AND HOPE PENCE CAN VOTE)

If Trump is to win, he has to have the Republicans in the Senate vote for Arizona’s Republican slates. If the Georgia runoffs are decided and Democrats take both seats, Pence would have to tie break in Trump’s favor. If they are not decided, or if Republicans win both, they would win each vote either 50-48 or 52-48, meaning that Trump cannot afford to lose a single Republican. Mitt Romney voted to impeach him, Susan Collins owes him nothing after he refused to campaign for her, and he has called for Lisa Murkowski to be primaried so somehow he needs their votes. Even in the best-case scenario – a Republican sweep in Georgia – all three rebelling would be fatal. And if it is tied, it is not legally clear whether Pence can use his tie-break – the law says simply that he acts as ‘president’ of the Senate.

STEP SEVEN: WATCH A DEBATE WHICH HAS NO PRECEDENT

The 1887 law sets some ground rules for how the House and the Senate debate which slate of electors are valid. They have to decide what the true vote was at the safe harbor deadline – back on December 8 – and which slate of electors were appointed in line with state law. So the debate should – in theory – not be partisan but a determination of which side is valid. In principle, that could mean different outcomes for different states. But assuming that  a Arizona goes Trump’s way in the Senate and Biden’s way in the House, that state is tied – and then it’s on to a new constitutional crisis. 

STEP EIGHT: FIND OUT WHAT HAPPENS NEXT – AND IT COULD BE TWO PRESIDENTS

The law says that Congress can’t move on to the next state until debate is resolved over the one in question. But it also says that the meeting cannot be dissolved until all states are decided.

So the whole proceeding could be deadlocked at Arizona. And as long as it remains deadlocked, there is a looming deadline of January 20 – at which point Pence and Trump are out of office anyway. In that scenario, Nancy Pelosi becomes president automatically at noon. 

However, Pence could break the deadlock on Arizona by ruling that the votes are not to be counted at all, and debate can resume on the next item.

Democrats clearly would not agree. In that scenario, it is impossible to say what would happen. They could walk out, say the debate is not resolved – which it would not be – and therefore Pelosi would be sworn in on January 20.

But Pence is likely to rule that the debate in fact is going on, run through the votes with only Republicans and come up with a Trump victory: meaning two rival presidents both claiming they are in charge. 

What happens then is impossible to say: the Supreme Court could try to rule between them, or the military might have to decide who is commander in chief.

THE OTHER STEP EIGHT: KEEP DEBATING AND FIX THE RULES IN YOUR FAVOR 

Of course Democrats could stick with the debate and keep going, debating each state as they go along. 

If that happens, Congress has to decide what a majority of the Electoral College means. Is it a majority of the 570, or is it a majority of the electors from the states which are not tied? The law does not say either way – and it could be valid to rule out tied states entirely. If Congress goes for the shrinking college, then Biden would be at a disadvantage if Trump has Arizona, Georgia, Michigan and Nevada, Pennsylvania and Wisconsin – all the states being targeted by Trump, so without all of them, Democrats could simply grit their teeth and wait for a guaranteed victory. 

But if it stays at 538, then Biden could well lose without Trump actually winning: once it falls below 270, there is no majority and therefore it is up to the House to decide.

So Trump has to set the rules in his favor – and even that might be problematic because the House and Senate would go in opposite directions. In fact the deadlock could mean the debate is stuck at step eight anyway, and Nancy Pelosi gets sworn in. 

If Mike Pence rules in Republicans’ favor as the president of the joint session, then it would probably head for the Supreme Court to rule one way or the other.

STEP NINE: THE HOUSE DECIDES – TRUMP HAS DONE IT

If Trump and Biden end up here this is safer ground: the House has decided before. It does not vote under normal rules. Instead each state delegation gets one vote and has to decide among the delegation how to allot it. 

So going by current House results, 27 states have Republican majorities, and all Trump has to do it get a simple majority of them. Trump has triumphed – but it is an exhaustingly long process to get back on the platform on January 20 to be sworn in. 

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