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The fact that Trump is going to contest the election results raises the following possibilities:

  1. Trump fails to persuade the court that there were significant number of violations in the counting process. In this case, everything is relatively simple, Biden just becomes a president as usual.
  2. Trump manages to persuade the court that there indeed were enough violations to influence the elections. What happens next? Will the results be recounted in some way or a new election be held? Supposing that the main violation was an inadmission of observers, it would be impossible to estimate the result for the scenario in which there were no such violation. Does it mean that a new vote will be held?
  3. A court fails to reach a verdict within a short period of time. Say, the dispute continues for a year and before the dispute ends, it is unclear who is a winner. Does this mean Trump will stay in office for the period of the dispute?
3
  • 1
    Too many unknowables. You'll have to wait and see like the rest of us.
    – Jontia
    Nov 6 '20 at 16:38
  • Part 2 is a very broad question due to the lack of a unified voting law in the United States. It depends on the election laws of individual states and how they handle irregularities during voting. I have to admit that I didn't look, but I would imagine that some might only allow to count the existing ballots again while others might offer a path to repeat an election when there are too many irregularities.
    – Philipp
    Nov 6 '20 at 16:43
  • Part 3 of this question might be answerable, though, by looking at the Electoral Count Act, the 20th amendment and the Presidential Succession Act.
    – Philipp
    Nov 6 '20 at 16:48
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It probably won't, because, in past election disputes, SCOTUS either made rulings that were "active" rulings, or made rulings that nothing could be done, citing the hard deadlines for the Electoral College. They've ruled that, barring a change in election law and/or a Constitutional Amendment, those dates are set in stone and can't be altered by a court.

The meeting of electors is set in stone. In order to change federal election law, you'd need the change to pass both houses of Congress and be signed by the President. Not going to happen. -

The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.

3 USC 7: Meeting and vote of electors

If a state tries to not send their electors, federal law requires Congress to demand their electors, and the states to comply (note that the language "shall" is mandatory, not optional language).

When no certificate of vote and list mentioned in sections 9 and 11 of this title from any State shall have been received by the President of the Senate or by the Archivist of the United States by the fourth Wednesday in December, after the meeting of the electors shall have been held, the President of the Senate or, if he be absent from the seat of government, the Archivist of the United States shall request, by the most expeditious method available, the secretary of state of the State to send up the certificate and list lodged with him by the electors of such State; and it shall be his duty upon receipt of such request immediately to transmit same by registered mail to the President of the Senate at the seat of government.

3 USC 12: Failure of certificates of electors to reach President of the Senate or Archivist of the United States; demand on State for certificate

The Congressional Research Service has been asked about this subject.

What remains clear is that only the states and Congress have the power to delay that part of the election process. “Unlike the practice of some states that allow the Governor to postpone an election during emergencies, neither the Constitution nor Congress provides any similar power to the President or other federal officials to change this date outside of Congress’s regular legislative process,” the report says.

Constitution.org: Does the Constitution allow for a delayed Presidential election?

While that is specific to actual public voting/election dates, it seems like that holds true for Electoral College dates, as well.

That was, in part, the stated reason why Florida had to stop their recount in Bush v Gore in 2000 - there wasn't enough time.

which requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is here, but there is no recount procedure in place under the state court's order that comports with minimal constitutional standards.

Justia.com: Bush v Gore

Even if he wins cases, if they can't get new, certified results as of that date, the previous ones would stand.

If the legal wrangling makes it so there is no winner that can be chosen, that doesn't mean Trump sticks around until it is resolved. His term of office ends, again, via the Constitution, and the next President gets sworn in on hard and fast dates.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

The Constitution Center: the 20th Amendment

So, no elected President or VP means that the next person in the line of succession takes over - Speaker of the House.

The next session of the new Congress starts 2 to 3 weeks (also from the 20th Amendment) before the next President takes over, so there would be a new, duly appointed and active Speaker at that time.

(a)(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

3 USC 19: Vacancy in offices of both President and Vice President; officers eligible to act

So, potentially, if conservatives and Trump really, really want to drag this out, they might wind up with, for a time period, President Pelosi. My own subjective assessment is that they'd drop their legal fight unless it was looking like a slam dunk, than go down that road.

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Trump manages to persuade the court that there indeed were enough violations to influence the elections. What happens next? Will the results be recounted in some way?

If the offending ballots can be identified, they would be removed from the vote totals.

or a new election be held?

That's very unlikely. There's no provision for that in any law.

Supposing that the main violation was an inadmission of observers, it would be impossible to estimate the result for the scenario in which there were no such violation. Does it mean that a new vote will be held?

At most, the remedy for that finding would be a recount in the presence of observers.

A court fails to reach a verdict within a short period of time. Say, the dispute continues for a year and before the dispute ends, it is unclear who is a winner. Does this mean Trump will stay in office for the period of the dispute?

No. Trump's present term of office ends on January 20th at noon Eastern time. This is explicit in the constitution (in the 20th amendment, to be precise). If some state fails to appoint electors, the electors from the remaining states will vote and determine the election. If for some reason that doesn't happen, the House of Representatives will elect the new president and the Senate the new vice president, as provided in the 12th amendment. If for some reason that doesn't happen, presidential succession comes into play, so the Speaker of the House, the President Pro Tempore of the Senate, or one of the cabinet officers will become acting president.

2

The Supreme Court is unlikely to overturn the election in any state over fraud allegations because the secret ballot makes it impossible in most cases to tell who the fraud was for. Take the mail-in ballot for example. Once it is separated from its envelope, any chain of custody is broken, the ballot is identical to any other. Imagine if video comes out showing some incontrovertible proof of mass fraud. Once those votes have been counted, they're in the pile and identical to the legitimate votes. So there is no possible remedy.

It is possible that the Supreme Court overturns the election in a state on Constitutional grounds; agents from one party procedurally infringed the Constitutional rights of another, so the election can be decided in the courts. In Bush v. Gore, votes were counted differently in different counties in Florida, violating the Equal Protection Clause of the Constitution.

One last possibility is that the Electoral College deadline is missed, then the election is decided by House delegation. Every state's House delegation gets one vote, and they can pick either Trump, Biden, or whoever got the 3rd most electoral college votes, who in this case could be Jo Jorgenson if she receives a vote from a faithless elector. Republicans have a majority today. This happened in 1800, 1824, and almost happened in 1876.

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  • "Republicans have a majority today": not that this would change the outcome, but the vote would be taken by the next congress, not the present one.
    – phoog
    Nov 6 '20 at 17:30
  • "and they can pick whoever they like": actually, the 12th amendment limits them to a choice "from the persons having the highest numbers not exceeding three on the list of those voted for [by the electoral college] as President."
    – phoog
    Nov 6 '20 at 17:43
  • Regarding your edit, they can only pick Jo Jorgenson if some faithless elector votes for Jo Jorgenson. If all the electors vote as they are pledged, there will be no person with the third highest number of votes.
    – phoog
    Nov 6 '20 at 17:50
  • @phoog Thank you for the clarification. I thought the text of the 12th referred to the popular vote.
    – Ryan_L
    Nov 6 '20 at 17:51

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