Allow, please, an extended simile, football-related, for what President Trump is trying to do by continuing his legal challenges against Joe Biden’s coming presidency. The difference is that in the football analogy, there are no detrimental consequences for making the attempt, whereas Trump’s efforts risk grave harm to the public’s well-being.
Trump is like the head coach of a football team during a timeout with five seconds remaining in the game and his team on the opponent’s 33-yard-line, down by 11 points, against the wind. Is it even possible to finagle a victory? Well, yes, if you believe a fairy godmother can be conjured up just by wishing it so.
The coach could reason that he has a receiver who can run 40 yards in 4.2 seconds, without pads, so maybe he can sprint 33 yards to the end zone, with pads, in only four seconds, and have the quarterback hit him in stride with a perfect pass on the dead run for a touchdown, and have a friendly clock operator who stops the clock the very nanosecond the ball hits the receiver’s hands, keeping one second on the clock.
Then, because a two-point conversion is untimed, the coach’s team could try for a two-point conversion and succeed while that single second remains on the clock. Now his team would be down by three. Problem: Unless the receiving team calls for a fair catch of a kickoff in the air, the clock must, by rule, run off at least one second as soon as anyone touches the ball. An “onside kick” by the coach’s team would thus end the game even if the kicking team recovers it.
Unless… Unless, that is, the kicking team recovers it at the same time the receiving team commits a penalty. The game cannot end on a penalty by the team without possession of the ball. Thus, in this scenario, the kicking team would have one untimed play, with no time left on the clock, to try to tie the score. Fine: Let’s say the onside kick was recovered on the opponents’ 50-yard line. Our brilliant coach could send in his kicker to try a record-breaking 67 yarder against a steady breeze. If he makes it, the game would go to overtime, and the coach’s team could win.
Of course, that whole scenario is so far-fetched as to be fantasy. Fantasy so convoluted and outlandish that not even Hollywood would try to sell it. But at least it’s all well within the rules, and it’s a game, and there’s no harm in trying.
Now, imagine if, even in accomplishing all that, the football coach also had to demand and receive three or four hugely controversial rules interpretations from referees, whom the hometown fans could fire, and further imagine that massive cultural upheavals could be caused by those rules interpretations.
That last paragraph is akin to what Trump risks with his continued efforts to stay in power.
Before considering those consequences, let’s assess the odds. For Trump now to win, he needs several things to happen.
First, he needs at least one member of each chamber of Congress to object to accepting the duly certified electors from, let’s say, all of the three closest states — Arizona, Georgia, and Wisconsin. In each instance, a majority of both chambers must vote to reject the certified electors from the states in question. This would be a neat trick, considering that Trump’s opponents, the Democrats, enjoy a majority in the House. All Republicans, plus at least six Democrats, would have to be willing to ignore the duly certified electoral slate three separate times (one for each state) during the counting.
Second, they would then have to convince House and Senate majorities to accept the alternate slates (in those three states) consisting of Trump supporters whom not a single relevant state official has certified in any way, shape, or form. They would need to do so even though no Trump legal team is arguing that it is provable that Trump actually won those states, but merely that too many anomalies occurred for a clear winner to be determined. In sum, all House Republicans and six House Democrats would need to be able to justify to their voters why they were approving a Trump win in those states when not even Trump can prove he won.
If all this happens, the electoral votes would then be tied, 269-269. That would set up another round of voting — this time under a separate constitutional provision. In this round, the House would count votes not by individual member but by state delegation. The only states able to cast a vote would be those with a clear majority of their delegations choosing one candidate or the other. Neither presidential candidate wins unless 26 of the 50 delegations, by majority (not mere plurality) votes for him.
In this case, finally, Trump would have a nominal advantage: 26 of the 50 states have clear, uncontested Republican majorities within their congressional delegations. So, finally, Trump presumably would win — assuming the Supreme Court did not try to enjoin the House vote somehow, based on any number of challenges from Democrats. The really bizarre whipped-cream topping to all of this is that if Democrats and the courts can delay the final House votes until beyond noon on Jan. 20, then House Speaker Nancy Pelosi would become president.
Meanwhile, to do all this, Team Trump would need to run roughshod over numerous provisions in the Constitution and in duly enacted statutes. By analogy, Trump would be asking the referees to make up new rules in the final second of the game.
The Constitution says that Congress has the power to set the day on which electors shall give their votes and that it shall be the same day in every state. In so doing, Congress, by law, established a “safe harbor” day by which states acting by procedures in place before election day can effectively lock in the identity of their electors. Congress further set the date on which those electors vote — and the Constitution says that the votes of those electors “shall” be counted by Congress. The Supreme Court has ruled that “that determination shall be conclusive” if the safe harbor is met. Furthermore, federal law prohibits Congress from rejecting electors who were thus certified.
In short, members of Congress who vote to seat Trump’s alternate slate of electors would be doing so in clear contravention of the law duly passed and presidentially signed, according to the dictates of the Constitution. They would need to blow past the “safe harbor” provision, blow past the certification provision, blow past the actual vote of the certified electors, blow past the provision requiring that only the certification procedures adopted by each state before Election Day shall be valid, blow past the constitutional dictate that Congress’s specific day of casting electoral votes be uniform, and blow past the 7-2 majority in the 2000 Bush v. Gore decision that confirmed that the “safe harbor” day is essentially inviolable.
Unlike in a football game, in which the victor’s fans would celebrate, the loser’s fans would gripe, but ordinary life would go on, the result in Trump’s scenario would be a constitutional crisis. And, at very best, it would do all that by taking advantage of a tiny loophole in the law, and even then only by going against all other provisions and the patently clear intent of all the relevant constitutional and statutory provisions, and against the decisions of dozens upon dozens of courts that have heard Trump’s challenges. The resulting constitutional crisis would surely be accompanied by civil unrest and violence of an almost unimaginable scale.
Even if (a big “if”) election fraud and error was of a scale large enough to have taken the election unfairly away from Trump, Trump has failed to prove it in duly constituted courts within a duly constituted time frame. We are a nation of laws, including laws that govern the means of redress for alleged electoral injuries. Trump has now exhausted all those legitimate means of redress. If he keeps up his fight, he won’t be playing football; he’ll be playing Russian roulette with our constitutional system.
In 1876, in 1960, and in 2000, the presidential candidates who lost under those procedures all still thought they should have been declared the victors. Yet, for the good of the nation, Samuel Tilden, Richard Nixon, and Al Gore each chose to reinstill faith in the system and avoid major civil conflagrations by urging their supporters to accept the disputed results.
If Trump is a patriot, he will do likewise.
