Recent comments from President Donald Trump have revived a hot-button question regarding the Nov. 3 election:What happens if he loses but refuses to leave office?
The president on Wednesday wouldn’t commit to a peaceful transition of power when asked about it during a news briefing, saying “we’re going to have to see what happens.”
He’s repeatedly refused to say whether he’ll accept the results of the election, suggesting that voting by mail is recipe for fraud. He’s also “joked,” he says, about staying in office beyond the constitutionally-mandated term limits.
With some GOP leaders pushing back against Trump regarding his comments, it’s clear the issue has struck a national nerve.
A sitting president refusing to leave office would be unprecedented, CNN reports, and it’s unclear exactly what that would look like.
But here are a few potential scenarios:
Trump takes it to court
Should Democrat Joe Biden defeat Trump, the president can and likely will contest the results of the election if it’s at all close, experts say, and one way to do so is through the courts.
“All candidates have a right to contest results in federal court,” Constitutional law expert Jonathan Turley told Politico. “It’s not up to the candidate to decide if an election is valid. It’s not based on their satisfaction or consent. They have every right to seek judicial review.”
It wouldn’t be the first time an election has ended up in court.
In 2000, the U.S. Supreme Court reversed a decision from the Florida Supreme Court to manually recount the state’s election ballots, which effectively gave George W. Bush the presidency. The high court ruled that the recount couldn’t be done in time to meet the deadline to select electors, according to FiveThirtyEight.
Bradley Shrager, a lawyer specializing in election litigation, told Politico that contesting the results in multiple states would be a “massive undertaking” and that a legal battle couldn’t drag on for too long because there are deadlines for submitting electoral vote counts.
“Given the time frames to launch recounts and election contests, you’d have to be preparing months in advance to be able to do that,” Shrager told Politico.
He uses state legislatures
The courts aren’t a president’s only avenue to contesting the election results — he could also ask state legislatures to act in his favor.
Electors are chosen by popular vote, but the Constitution doesn’t require that they are. Article II states that each state is to appoint electors “in such manner as the legislature therefore may direct.”
Should Trump lose and make claims of voter fraud, he could ask Republican-controlled state legislatures to ignore the popular vote and choose electors directly, The Atlantic reports. The longer he can keep “the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.” Dec. 8 is the deadline for appointing the electors who make up the Electoral College, per The Atlantic. Electors from each state meet on Dec. 14 to cast their votes, according to usa.gov.
Many states’ laws require electors to follow their state’s popular vote, and in the past — and while rare — some electors have voted for someone else, according to usa.gov. But according to a Supreme Court ruling in July, “electors must follow their state’s popular vote, if the state has passed such a law.”
So yes, things could get a little messy.
“Things would get problematic if the legislature tries to take back the power to choose electors by claiming the popular vote failed,” Ned Foley, professor at Ohio State University and member of the National Task Force on Election Crises, told VICE News.
A new president is sworn in
Even if a president refuses to leave office or accept the election results, he becomes “irrelevant” once a new president is sworn in and would be a “guest” or “interloper” at the White House, Turley told Politico.
“The system would make fast work on any president who attempted to deny the results of the election,” he said, according to Politico.
But such a situation could be a constitutional minefield.
The 20th Amendment requires that someone be sworn in as president on Jan. 20. But it offers no guidance on a “dispute over whether someone has actually qualified to take office,” according to FiveThirtyEight.
“The thing that we know for sure is the current term ends,” Edward Foley, from Ohio State University’s Moritz College of Law, told FiveThirtyEight, adding that figuring out who would take office wouldn’t necessarily be straightforward if there’s disagreement.
Speaker of the House Nancy Pelosi, a California Democrat, could argue that she would be next in line to become president.
Under the Presidential Succession Act, the House speaker and the Senate president pro tempore are in the line of succession for president, with the speaker being at the front of the line.
But FiveThirtyEight says Republicans would likely fight that and things could “spiral out of control” from there.