‘The longest Tuesday’ – the US election one week later

10 November 2020

A week ago today, also a Tuesday, was election day in the United States.

The day seemed go on forever, for days, before it became apparent that Joseph Biden had won and the media networks ‘called’ the election.

It is, however, only apparent that he will be the next president: votes need to be certified by the States, the electoral college needs to meet, there needs to be a meeting of Congress to announce the winner, and so on.

There is therefore a possibility that something somehow could happen which would prevent Biden becoming president.

That said, on the information currently available, any legal challenge brought by Trump does not seem to have a realistic chance of success.

It is easier to threaten a case than to win one.

And for any legal challenge to prevail there needs to be substantial evidence and credible legal argument.

Law is not magic, and a party will not be granted a remedy just because of displeasure or disappointment.

Any (serious) lawyer for Donald Trump should be assessing the extent to which the evidence and arguments available really add up to dislodging the entirety of the majorities being reported in the key States.

There may, of course, be ‘non legal’ reasons for not conceding defeat: vanity, an attempt to create a false narrative, a desire to continue with fund-raising, an exercise in contriving some leverage for a ‘deal’ exchanging cooperation on transition for immunity from prosecution, and so on.

But such ‘non-legal’ reasons ultimately depend on the credibility and substance of the potential legal challenges.

Unless Trump and his legal team can fashion a good legal argument, then the votes will be certified, the electoral college will meet, Congress will approve, and so on.

And so, unless something exceptional and currently unforeseeable happens, Trump will cease to be the President of the United States on 20 January 2021, by automatic operation of law.

At which point, if he remains in the White House without permission, he would become a mere trespasser on federal property.


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8 thoughts on “‘The longest Tuesday’ – the US election one week later”

  1. All well and good. But you don’t explore the legal uncertainty about how electors to the college are appointed. This is an area ripe for exploitation by the unscrupulous.

  2. Although I hope that your optimism proves right. I have read that, if by 14th December there remains an outstanding legal challenge to the outcome of the election in that state, the legislature of that state may decline to exercise its Electoral College vote. Then, if neither Presidential candidate achieves 270 votes in the College, a panel of Congressmen representing the states where the election was undisputed would elect the President. In that setting, Trump could win.

    1. Not an ‘although’ – those possibilities are anticipated in my post: ‘unless something exceptional and currently unforeseeable happens’. That is one of the things my post takes into account.

  3. Trump will inevitably finally depart on 20 January 2021, as his chances of any meaningful legal challenges to the counts resulting in nullifying a sufficient number of votes to change the final outcome are less than remote. However, Trump will inevitably then attempt, via rallies and his denials of reality, to swing the now double Senate races in Georgia in favour of the Republicans in order for them to control the Senate and thereby frustrate President Biden.

    Trump also seems to have made the Republican Party the Trump party whereby the Republicans are now totally dependent on the not insubstantial number of Trump voters (70 plus million) for themselves to stay in power, let alone appear to be reasonable and work with the Democrats in knitting a divided America together again.

    Then there is 2024; when Trump will inevitably run again, his health permitting at an age of 78, to once again nullify the undoubted reverses in his policies undertaken by Biden on taking office on 20 January 2021.

  4. But the question is, can Trump’s legal team fashion a credible case. I am not convinced that they cannot in Pennsylvania. The difference between the state and federal law could provide enough of an opening for the Trump team to obtain at least a hearing from SCOTUS. And Justice Alito has already indicated some support for the Trump team submission. I doubt if it is enough to change the result in Pensylvania, even if the affected votes are not counted but it could be a very interesting “safe harbour” day.

  5. Should Trump continue to occupy the White House on Jan 20, he would of course have to be physically removed, evicted.

    Who would be charged with the task? The Police, the Marines?

    1. He will protected from physical harm by the Secret Service detail all ex-Presidents are (rightly) entitled to. I suspect they would safely escort him out.

  6. This is all about a scorched earth tactic. Leave Biden to try to rule with a shadow of illegitimacy in the eyes of Trump supporters and the Republicans in the Senate and then uncle Donald to the rescue in 2024.. Always a chance that the stooges he’s packed the courts with will sit up and beg too.

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