US election 2020: How Donald Trump could try to overturn a Joe Biden victory

As votes continue to be counted, concerns build that Trumpism may live on past the final result.

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As the US heads into the early hours of Thursday 5 November, Americans still do not know who will be their next president. There have been no major shifts overnight and votes will continue to be counted in five key states which could still swing the election. Joe Biden so far is ahead with 243 electoral college votes and Donald Trump is on 214.

In the next day, the country expects to learn the results in Nevada (where Biden is ahead by a small margin), Georgia (where Trump is ahead by a small margin), and Pennsylvania, (where Biden is expected to pull away and Trump is expected to try to complicate the election with litigation). Alaska and North Carolina also remain uncalled.

According to the Associated Press, Biden has already won Arizona. But many US news outlets have not yet called the result, and some Trump supporters are hoping that votes in the admittedly Biden-leaning Maricopa County will swing the state to Trump. In furtherance of this goal, some of these supporters showed up, some with guns, to protest stolen elections at the building where votes were being counted. This might delay the final result from Arizona and has effectively intimidated the very people who were doing what Trump supporters were demanding they do – that is, counting all the votes in Arizona.

Elsewhere in the country, the Trump campaign is threatening to sue to stop the counting of votes. In Michigan, which has been called for Biden, Trump supporters protested in Detroit to demand that officials stop counting. 

President Donald Trump claimed victory on Tuesday night – which, to be clear, was at best premature and at worst a lie meant to mislead the American people. He then spent much of Wednesday tweeting about a stolen election.

“How come every time they count Mail-In ballot dumps they are so devastating in their percentage and power of destruction?,” tweeted the incumbent president, after months of falsely claiming that mail-in voting was fraudulent, which may have dissuaded his own supporters from using this method (unlike Democrats, who used postal voting because we are in a pandemic). “They are finding Biden votes all over the place – in Pennsylvania, Wisconsin, and Michigan. So bad for our Country!” he later added, referring to the continued counting of legally cast votes, which is taking place after election day in Pennsylvania because its Republican-controlled legislature did not allow votes to be counted ahead of time.

If the election is won for former vice-president Joe Biden in the Rust Belt, Trump has a few options. The first would be to wait for all votes to be counted to see whether he has enough support to win the all-critical electoral college vote, even though he is losing the popular vote (as he did in 2016). And then, if he does not have enough, he could concede defeat for the good of the country.

However, given that the president is already claiming that the election is suspicious, we might conclude that such a concession is unlikely. Trump announced in the early hours of Wednesday morning that he would take this election to the Supreme Court.

[See also: How Trump's loss of the popular vote could signal a longer term gain]

It is as yet unclear how he would do that, however. Bush vs Gore, the 2000 Supreme Court case that determined which votes could be counted in Florida and so, Democrats believe, effectively handed the election to George W Bush, was about a specific issue in a specific state. Republicans all over the country have already tried to take the counting of ballots to court for this election, sometimes unsuccessfully (such as in Harris County, Texas, where the Texas Supreme Court and a federal court ruled that curb-side voting from vehicles outside polling stations was permissible) and sometimes successfully (the Supreme Court overruled a ballot acceptance extension granted by a federal court in Wisconsin last month). On election night, Republicans in Pennsylvania announced that they would try to get corrected ballots – ballots with an error that voters were then given the chance to resubmit – thrown out. And the Trump campaign has said that it is requesting a recount in Wisconsin.

It is also unclear the extent to which Trump’s party would be willing to join him in this endeavour. For the most part prominent Republicans have so far said that votes must be counted. “Taking days to count legally cast votes is NOT fraud. And court challenges to votes cast after the legal voting deadline is NOT suppression,” tweeted Florida senator Marco Rubio. The tweet made a false equivalence, since people aren’t trying to vote after the legal voting deadline and are indeed hoping that votes cast legally are counted. But that he broke with Trump on votes being counted after election day is something. Even Fox News, the TV station that was at times during Trump’s first term so closely aligned with the president, said on election night that we need to count the votes.

And so it must be said that there is another route through which Trump could try to cling to the White House, which is by riling up his 66 million supporters so thoroughly that they do not accept the result of the election.

[See also: Darkness has fallen on American democracy]

For example, it was announced that Edison Research, which some news organisations, like the New York Times use to call results, had an error in its data on Arizona. The New York Times had not actually called the state; Fox and the Associated Press, considered the gold standard of election calling, had. Trump campaign personalities like Eric Trump, the president’s adult son, jumped in to say that Fox News made a mistake in calling the Arizona race for Biden; neither Fox nor the Associated Press, which also called the state for Biden, used Edison Research, but that did not stop claims of stolen elections.

Trump, in an attempt to stay in the White House, is telling his supporters that there is widespread fraud, of which there is no evidence. In a sense, it doesn’t matter if the courts accept his case or if others in his party believe him. Even if Trump is eventually forced to – to borrow from Lawrence Douglas, author of Will He Go – submit to, if not concede, defeat, the belief that this election was his and he deserved a second term will linger.

Trump may leave the White House; Trumpism, unchecked by our institutions, uncontained by the president’s political party, will live on.

Emily Tamkin is the New Statesman’s US editor

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