President Trump officially lost the 2020 election, but has still refused to concede. Recently, he just refuses to acknowledge his defeat, so it’s looking like this is the first time there will not be a peaceful transfer of power, which is a violation of the U.S. Constitution. However, we’re all unsure if Trump will be able to find a legal path to claim the 2020 presidency, potentially using the 12th amendment.
It doesn’t seem like Trump will be able to use the 12th amendment, since Joe Biden has won by a high enough margin. There may be some other ways Trump can attempt to steal the election; however, without a tie, as the 12th amendment mandates, it doesn’t seem like the election was close enough for Trump to take the presidency without it being a coup.
The 12th amendment is only in play if there’s a tie.
The 12th amendment to the Constitution, in its simplest terms, mandates that if there is a tie in electoral college votes that the election then is decided by the House of Representatives. While that might sound good for Democrats at first, it actually would not work out that way. Each state delegation in the House would get one vote, and the Republicans actually control more states than the Democrats, even though the Democrats represent more people.
However, this amendment can only be used if there is a tie in the electoral college votes. The electoral college is a system of electors deemed responsible representatives of the people that meet to cast their votes for the president based on the population. However, because of party-drawn county lines and growing populations, these electoral votes tend to not be fully representative of population. For example, a vote in Wyoming is worth 3.18 times as much as a vote in California.
In the 2020 election, none of that matters because Biden won both the popular vote and electoral college. There are 538 electoral college votes, which means either candidate needs just 270 to win. After all the states’ results are officially in as of Nov. 13, Biden has won 306 electoral college votes, meaning Trump won just 232. This is a wide enough margin that there’s not much dispute on who the clear winner is.
Trump can’t use the 12th amendment to steal the election.
Because of the wide margin in electoral college votes (and even wider margin of 6 million popular votes), there’s no path for Trump to use the 12th amendment to steal the election. The 12th amendment would only work if there was a tie, and in this case, there is not. In 2000 in the George W. Bush versus Al Gore election, the results hinged on which way Florida voted, and Bush was ahead by only a slim margin, so it made sense to contest this vote.
However, even this year, Bush was one of the first Republican politicians to come forward and congratulate Biden on his win, even going so far as to say, “The American people can have confidence that this election was fundamentally fair, its integrity will be upheld, and its outcome is clear.”
Trump continues to claim there was “voter fraud,” but a group of officials from multiple election committees overseeing the election have confirmed, “The Nov. 3 election was the most secure in American history. Right now, across the country, election officials are reviewing and double checking the entire election process prior to finalizing the result.”
Trump may try to use other methods to claim the presidency, but it seems they are all fruitless.
In an Instagram post by the organization Vote Save America, a non-profit voting rights advocacy group, they outline how Trump may try to use various methods to steal the election, but it seems that none carry any weight. Basically, most electors are required by law to vote with their state, and the state legislators do not have a direct role in seating electors.
According to the Constitution, “The terms of the President and Vice President shall end at noon on the 20th day of January ... and the terms of their successors shall then begin.” So if Trump refuses to leave, he will be escorted out of the White House as a trespasser after that time. The Supreme Court is also unable to rule on elections unless there is a tie and damning evidence of meddling in the results, which even Trump’s lawyers have admitted there is none.
So, do we need to be concerned? Well, it’s always concerning when the current president usurps the laws of the Constitution, but we’re not surprised. Trump has not been quiet about his flouting of the law between his tax evasion and attempts to suppress votes.
Why would this instance be any different for Trump? Well, the biggest difference is that there’s a new president coming on board, and whether Trump leaves by choice or by force, there is no way he can legally remain in the White House after Jan. 20.