Election day fireworks

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Lawrence Douglas is the James J Grosfeld professor of law, jurisprudence and social thought at Amherst College in Massachusetts. He’s a legal scholar who has written several books on law, as well as two novels. Douglas is a regular reviewer of books and legal topics for The Times Literary Supplement, and a regular contributor to The Guardian newspaper. His latest book, Will He Go? Trump and the Looming Election Meltdown in 2020, takes a look at the legal and constitutional consequences of a possible refusal by US President Donald Trump to acknowledge defeat in the 2020 election. Here he talks to Asia Business Law Journal‘s Mithun Varkey about some frightening scenarios for the world’s most important electoral event

Asia Business Law Journal: Can you tell us about the thesis of your book? Is a refusal to vacate office or concede defeat an actual possibility, given the American constitutional setup?

Lawrence Douglas Donald Trump US Election
Professor Lawrence Douglas

Professor Lawrence Douglas: I think that the point of the book is to really ask how well equipped our system of constitutional and federal law is to deal with a president who either refuses to concede, or blames an electoral defeat on a fraud. And I guess the first question you’re asking is: How likely is it that Trump would refuse to concede? Or, how likely is it that he would blame an electoral defeat on fraud?

With respect to the second question about fraud, I think it’s very, very likely that he would blame an electoral defeat on fraud. We’ve seen this really as a kind of a consistent pattern with President Trump. We saw it back in 2016, even when he was a candidate. And as you might recall, he rather shockingly refused to say that he would acknowledge an electoral defeat. And he predicted that if he did lose, it would be because of a fraud.

I think it’s quite likely that he would try to argue that his loss is the result of some kind of fraud or hoax, by refusing to concede. I don’t necessarily mean in my book that I imagine Trump barricading himself in the White House and refusing to leave, come noon on 20 January. What I really mean is that if he believes that he can extract some kind of political benefit from insisting that the election was stolen from him, and to really try to extend that kind of argument through to January, then I do believe that he could create a lot of chaos for the American system. And that I think it is a real danger.

ABLJ: There’s a lot of talk about Chinese interference and possibly calling US Democrat presidential nominee Joe Biden soft on China, for example. What is your take on that? How do you see that playing out?

Douglas: I think that’s a very real possibility, especially in as much as we know for years now that Trump has been bizarrely deferential to [Russian President] Vladimir Putin. And we know for a fact that the Russians massively interfered in the presidential election in 2016. We also know as a historical fact now that Russia interfered in 2016 to the benefit of Donald Trump.

I think what Trump will try to do in the coming months is argue that there is a gap and massive interference in our election. But this time he will try to argue that the massive interference is coming from China, not from Russia – deflect attention away from Russia – and also, additionally, to argue that that interference is coming from China to the benefit of Biden. I think there’s no doubt that he will continue to kind of ride that horse all the way through to the November election.

We’ve already seen that, you know, he’s kind of used China as this object of demonization. We’ve seen the way in which he now tries to blame the covid-19 pandemic on China in very ugly ways. I mean, using this term of “Kung flu” in his Tulsa rally, almost kind of a racial epithet, and trying to blame China for this global pandemic.

ABLJ: What are the constitutional safeguards that are available to mitigate the possible chances of such an impasse?

Lawrence Douglas Donald Trump US Election bookDouglas: I think that’s a key question, and one of the main takeaways from my book is that you have to ask yourself, how well is the American constitutional and electoral system equipped to deal with this type of brinkmanship on the part of the president?

The answer is the system is not well equipped at all. And I would go so far as to say that our system presupposes that there’s a peaceful succession of power [but] it doesn’t really secure the peaceful succession of power. It just kind of assumes it’s going to happen. And if it doesn’t happen, if there really is a very serious challenge to the peaceful succession of power, the system isn’t particularly well equipped to deal with it.

We know, for example that, come 20 January at noon, Trump’s term will end, unless he’s been re-elected. So, we know that that’s in the US constitution. We know from the 1947 Presidential Succession Act, which says if there is no president-elect for some reason, come 20 January, then the speaker of the House [of Representatives] will become acting president. So, there are various kinds of legal devices put in place. But the question is, if you have a contested election, if you have an inconclusive result in which one of the major candidates, in this case the incumbent president, is insisting that he has been re-elected and only fraud has cost him the election, the system is really very poorly designed to deal with that kind of problem.

We saw that happen once before in American history, in 1876, and it almost tore the country apart, actually. So there has been a precedent set, where a president has sort of used constitutional provisions to his own advantage, to not demit office, in 1876. It actually wasn’t the president, it was the two candidates in that particular election challenging the results.

This was the election that took place about 10 years after the conclusion of the civil war. There was a tremendous amount of tension in the US. You can actually make certain analogies to the type of hyper polarization that we find within the politics of the US today. And, given the fact that you had this kind of inconclusive result, you had both candidates pushing their side to try to insist that they won. It really wasn’t until two days before the inauguration that this electoral crisis was solved. And many people thought that if the electoral crisis in 1876 hadn’t been solved, that the US could have once again descended into civil war. So, it is a similar kind of political climate that could manifest itself, you know, coming this November.

ABLJ: We saw something similar in 2000, with the George W Bush/Al Gore elections. Is there a judicial remedy to this sort of impasse, or is it down to the candidates, like Al Gore conceding for instance? Can you go to the Supreme Court and get a solution to this?

Douglas: I would say two things. First, the election in 2000 is one that is in many people’s memories. And that was one, as you recall, that kind of turned on the outcome in Florida, and 35 days after the election, we still didn’t know who had won Florida.

That’s when the US Supreme Court stepped in and – in a rather partisan and poorly reasoned decision, very narrowly decided, it was a five-to-four decision by the Supreme Court – they ordered Florida to stop the recount. At that point, George W Bush was clinging to a 537-vote lead.

Now you have to think about that – 537 votes, while close to 100 million were cast nationwide.

Even if the Supreme Court’s decision wasn’t a great decision, it was necessary to get closure. We needed to end this election controversy. But I think, as your question implies, it really wasn’t the Supreme Court that brought closure. It was Al Gore. Gore, of course, was the losing candidate ultimately, and Gore, right after the Supreme Court reached its decision, he conceded. He very graciously recognized the Supreme Court and made a decision, and he agreed to abide by it.

I think if you replay that scenario, and you slotted Donald Trump in the position of Al Gore, you would never find Trump conceding under those circumstances. And I think even at the time, you know, there were many people in the Democratic Party, and many members of [Gore’s] legal team who aggressively counselled for him to continue to fight. And he could have continued to fight through to the Congress.

And this gets a little bit into the mechanics of our very complicated system of electing a president, but it’s ultimately the Congress that counts and certifies Electoral College votes. And arguably, Al Gore could have continued the fight through to Congress. And I believe that Trump would certainly do that if a similar situation were to manifest itself this fall.

ABLJ: Do you think the US Supreme Court has the powers to sort of step in and play the role of an arbitrator, or adjudicate on what a solution could be?

Douglas: It depends a bit about when we’re talking about. So, 3 November is when the election takes place, and we typically think that we know who the president is by, let’s say, 11pm eastern time, who the next president is going to be.

But that doesn’t necessarily have to be the case. For example, in 2000, we didn’t know for 35 days. So, it’s very possible if you have an inconclusive result, that you will have days and weeks that pass before we get any kind of result. During that time, depending on how things are playing themselves out, there is going to be a lot of litigation. Inevitably, there will be litigation about how the counts are being conducted in the states, and the Supreme Court at that point could step in, like they did in 2000.

However, and this is the key point – if the electoral dispute lands in Congress’s lap. Now, that would not happen until 6 January 2021, that’s the day in which Congress actually opens the electoral certificates and counts the Electoral College votes. If there’s an electoral dispute that lands in Congress’s lap in early January, most constitutional experts would say the Supreme Court at that point has no role to play. It has no role to play in resolving an electoral dispute once it reaches Congress.

According to the constitution, it is Congress and Congress alone that is empowered to resolve an electoral dispute once it reaches them. And that’s actually what happened back in 1876. The dispute ended in Congress, and that’s why they basically were not able to solve it. They came up with a kind of a one-off fix.

I don’t know how many of your listeners and readers would be interested in knowing about the incredibly anachronistic, byzantine and arguably dysfunctional system that we have for electing a president. It is kind of unique among democratic societies that the popular vote winner in the US can lose the presidential election. In the 20th century, that actually never happened. It was more kind of a theoretical possibility. But in the 21st century, that has already happened, and it happened with Al Gore, and it happened again in 2016 with Hillary Clinton.

And you may say Al Gore lost by 537 votes. No, that’s not right. Al Gore actually won by over half a million votes, but the popular vote ultimately is not dispositive – what is dispositive is the Electoral College votes.

How does the Electoral College vote work? Each state has a certain number of Electoral College votes based on its size. So, a very small state like Wyoming might have three Electoral College votes, while a larger state like Pennsylvania could have 20 Electoral College votes.

The popular vote winner in each individual state receives all the Electoral College votes of that state. There are two exceptions. But basically, if you win the popular vote and again, if you win it by an incredibly small margin. So, for example, going back to 2000, Bush won Florida by 537 votes, but he received all of Florida’s Electoral College votes, and that gave him enough to actually become president. You have to get 270 Electoral College votes in order to be elected president, a majority of the 538 that are available.

So, it’s a very complicated system. And again, this is a system which is anchored in our constitution. No one really likes the system. For decades, it’s been a very unpopular feature of American constitutional democracy. But if there’s one part of our constitution that is as dysfunctional as the Electoral College itself, it’s the way that you amend the constitution, which is exceptionally difficult. So we’re stuck with this anachronistic, byzantine and dysfunctional system that can lead to these very anti-democratic results, and even worse, it can lead to these disputed results, these uncertain results.

ABLJ: Will Trump be looking to Asia as part of his campaign?

Douglas: I think just coming to the impact on Asia, primarily China is going to be a big part, definitely, of the debates and discussions, also from a policy perspective. You could imagine Trump right now – I’m using, for example, this national security law of Hong Kong – imagine Trump coming down very, very hard on China. And yet it seems like he prefers at this stage to demonize China for the covid pandemic, or maybe, as I anticipate, he’ll increasingly blame China for interfering in our elections.

In part of his effort to demonise others for mistakes that he has made, we saw the US, for example, formally announcing that it’s pulling out of the WHO [World Health Organization] next year. And in many ways, that just empowers China, so I don’t really see that, even if China remains his favourite object of demonization, I don’t see him taking forceful steps to try to check Chinese power, both in terms of his generally chaotic administration and a largely dysfunctional administration.

ABLJ: With former US president Barak Obama, there was a pivot to Asia, but Trump seems to have vacated that space. Is that incidental, or do you think it was a more deliberate strategy for the US to vacate from Asia?

Douglas: I think he was pulling out of the trade deals with Asia very early on, something he campaigned on back in 2016.

I wish I could say there was a deeper strategy and global vision behind this, but I think we’ve seen throughout this presidency, it’s incredibly chaotic. There really isn’t an articulated foreign policy, in large degree because he doesn’t have a foreign policy team in place. He doesn’t have a national security apparatus in place.

You know, the US has had very competent expert bureaucrats in positions of power for decades, and now there’s just this chaotic lurching back and forth as the country tries to keep up with the intemperate decision making of a, you know, pretty ill-informed and impulsive chief executive.

ABLJ: Will we see a more coherent Asia strategy from Trump leading up to the elections?

Douglas: I think he’s going to be so focused on the election, and so focused on his own personal political fortunes. At some point, you would think that presidents would see some distinction between their personal political fortunes and the larger national interest of the US. Trump doesn’t really seem to perceive that. He really seems to see his own personal fortunes and the American national interest as one and the same.

I think that’s unprecedented. I don’t think we’ve seen that in American history. We’ve even seen, I think in the past, presidents use domestic policy as a way of trying to promote their own personal fortunes. But usually, when it comes to foreign policy, they’re much more circumspect and much more willing or prepared to defend what they see as the national interest, the US.

I don’t see Trump really doing that. I really see him thinking even American foreign policy is simply a device and an instrument for promoting his own political fortunes.

ABLJ: So his re-election takes precedence over America’s foreign policy interests at this point, and definitely so in Asia?

Douglas: Exactly, or from his perspective, I would say that American foreign policy is getting him re-elected, and that is the foreign policy of the US. It is one and the same. I think one of the ways to avoid an electoral crisis come this fall is to see Biden win decisively. You know, I think if [Biden] wins decisively, Trump’s capacity to insist that the result was simply a product of fraud, or a hoax, or from Chinese interference, I think that will be very severely limited. He might still make those kinds of arguments, but I don’t see them gaining a lot of traction.

ABLJ: Do you see the Electoral College system changing at some point? The Democrats seem to have been at the receiving end of this system. Do you think if they come to power, they might consider amending the constitution?

Douglas: Amending the constitution is a very difficult thing to do right now. There are various groups that are trying to kind of work out a legislative fix, and the legislative fix is a little complicated.

It is basically trying to create a compact of states in which the states award their entire Electoral College votes not to the state-wide winner, but to the national popular vote winner.

So, if you get every state to agree to that, states that represent a majority of Electoral College votes, in a sense, you’ve made an end run around the system. A very difficult thing to get the states all onto this compact, but it would be great to see it succeed. It would be challenged in the courts, but it would be great to see it survive those challenges.

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