by Kevin Kelton
Should the results of the 2020 presidential election be contested, Chief Justice John Roberts may determine who becomes the next president. But not because he might be the swing vote in a Supreme Court ruling on the matter. Instead, Roberts might find himself in the awkward position of choosing who to swear in.
Let’s back up a moment to find out how one man might end up deciding a presidential election. For months now, people have been asking, what happens if President Trump loses but refuses to leave? There are several scenarios that could get us to that point. Let’s look at them one by one.
First off, we need to put an end to the silly meme Democrats are spreading that Joe Biden has to “win big” to become president. No, he doesn’t! He just needs to win in the electoral college, even if the popular vote is close – just as Kennedy did in ’60, Nixon in ’68, Bush in 2000, and Trump in 2016. Please don’t create an artificial higher standard for Joe that Trump can then exploit to question the legitimacy of a tight race.
But if there is no clear winner and the matter is still in the courts, with Trump refusing to leave the White House, the Constitution is pretty clear on that point. Per the 20th Amendment, the sitting president’s four year term ends at noon on January 20th. If no one is sworn in as the next president, Trump doesn’t just continue in the job. It’s up to the Congress to determine who would become the 46th president, which opens a whole panoply of scenarios. As of today the GOP controls the 26 state delegations needed to win in the House. But the vote would happen in the next Congress, not this one, and since an overwhelming Biden popular vote win would likely have strong enough coattails to flip a few more state delegations blue, they would surely elect the Democrat.
And if no one is certified by congress as the new president by January 20th, that void in the line of presidential succession would be filled by… wait for it… Speaker of the House Nancy Pelosi.
Yes, if Trump tries to hole up in the White House while chaos reins, Republicans might end up having to swallow a Nancy Pelosi presidency! (At least until the election results were fully resolved.) Wouldn’t that be a delicious plot twist?!
But let’s say we don’t get there. Let’s assume the electoral process works as it’s designed. The votes are counted, and Joe Biden has at least 270 electoral votes, but Trump claims that mail-in ballots were tainted or illegal voters tipped the outcome in one or more pivotal swing states. Each state would still have to certify its outcome, and we can presume that key swing states run by Democratic governors and secretaries of state (Pennsylvania, Michigan, Wisconsin, Colorado, North Carolina, Virginia, and Nevada) would defend the legitimacy of all the votes counted and certify the winner of their state. The right combination of those would give Biden 270 EC votes, even if there were certification shenanigans in the GOP led states of Florida, Georgia, New Hampshire, or Arizona.
So for the purposes of this hypothetical, let’s say 270 or more electoral votes are certified in Biden’s favor, but Trump still claims the vote was rigged.
The next step happens regardless of Trump’s public pronouncements of a fake election. The Electoral College votes (bound by the new SCOTUS ruling to honor the state outcomes) and Congress ratifies Biden as the winner.
That brings us to January 20th. Let’s say Biden is the certified winner but Trump is still holding out in the White House, claiming the election was a sham. Biden will still show up at the Capitol Building to be sworn in, with the Chief Justice there to perform the oath. At that moment, boom! Joe Biden becomes the 46th president. It doesn’t matter who is living in the White House or who is sitting in the Oval Office. Neither of those locations are mentioned in the Constitution, and neither of them convey the power of the presidency. Trump would simply be an interloper on government property, and he would soon be escorted out by the Secret Service, whether he likes it or not.
Even if Chief Justice Roberts, for some reason, weren’t to show up, the inauguration would still go forward. Because the President does not have to be sworn in by the Chief Justice; any federal judge can perform the presidential oath of office. As has happened at least seven times in history. So Associate Justice Ruth Bader Ginsburg or another willing associate justice could swear him in, or any judge on the DC Circuit. That oath would make Joe Biden the official President of the United States, and he would assume the powers of the presidency and set up a government, while Trump was illegally barricading himself in the White House like a Branch Davidian.
Which brings us to the thorniest of possibilities: the Roberts conundrum.
Suppose both Biden and Trump claim victory, and each shows up to take the oath on January 20th. At that point, the country would be looking for some form of official validation as to whose inauguration counts. That would put the chief justice in the awkward position of having to decide who to swear in. If Roberts follows the Constitution, he will administer the oath to the congressionally certified winner, Biden.
However, if Roberts, for whatever reason – politics, loyalty, fear – decides to swear in Trump, leaving Biden to be sworn in by a less senior federal judge, an argument would be made that the Roberts inauguration was the more valid one, based on his top position on the federal bench.
Would Roberts really create that type of existential constitution crisis just to protect a Trump presidency? This author highly doubts so. But in the hyper-partisan world of today, it is a hypothetical that cannot be ignored.
So if Trump tries to snatch victory from the jaws of defeat, and he is able to get the public support of Senate and House Republicans, it could come down to John Roberts to decide who will get the imprimatur of the chief justice and, with it, the perceive legitimacy of the oath. Lawsuits would certainly continue for years. But in the meantime Donald Trump might still serve as president, allowing him to pick Ruth Bader Ginsburg’s replacement. Which would all but certainly ensure he would prevail when the matter of the contested election eventually reaches the Supreme Court.
And the question of him voluntarily leaving at the end of a second term becomes ever more in doubt.