Trump isn’t going to concede- what happens next?

President Donald Trump has repeatedly made statements questioning the legitimacy of the November 3, 2020 election and after tonight's press conference at the White House it appears clear that he is not going to concede the election no matter how the final vote tallies end up.

Electoral College

Many are surprised to learn that the President of the United States is not elected by popular vote.

Rather, Article II, Section 1, Clause 2 provides that the President shall be elected at an "Electoral College" made up of electors appointed by each state in a manner determined by each state's legislature. A majority of electoral votes—270 or more of the 538 total votes —is required for the Electoral College to elect the President & Vice-President.

Trump's Path to Victory

It appears that President Trump’s “claiming” victory in states where he lost is part of a strategy to override the Electoral College using the electoral method in the U.S. Constitution. Trump would accomplish this by having the Republican legislatures of states that he lost to Joe Biden appoint Trump-supporting electors to the Electoral College.

While there has long been a tradition of the popular vote deciding the appointment of state electors to the Electoral College, Republican controlled state legislatures could take that power back for themselves, since the U.S. Constitution expressly leaves the appointment of electors completely in the hands of each state.

Under this scenario, crucial swing states- such as Pennsylvania, Wisconsin, Michigan, and North Carolina with Republican legislatures- could appoint a slate of electors that would defy the popular vote in their state and vote for President Trump.

On December 14 when the Electoral College convenes, Vice-President Mike Pence, as president of the Senate, would tally the Electoral College votes.

Under this scenario, whichever candidate was able to reach the necessary 270 electoral votes would win the presidency.

In the event that neither candidate received the required 270 electoral votes for any reason, the decision would go to the House of Representatives, where the decision would be determined on a one-vote-per-state basis, resulting in a slight majority for President Trump according to current state legislature majorities.

Path to victory requires buy-in from state elected officials

This strategy would obviously require buy-in from Republican controlled legislatures of multiple states and will turn on state elected representatives' willingness to defy the popular vote based upon allegations of "fraudulent" ballots.

David Winker, Esq. practices constitutional and election law and civil litigation in Miami, Florida.