KEY POINTS

  • Trump said he expects the election results to be contested before the Supreme Court and that's why he wants to fill the Ginsburg vacancy quickly
  • Trump ruled out the possibility he will lose
  • Biden called Trump's remarks "irrational"

Americans scoffed at comedian Bill Maher when he first predicted in 2018 that President Donald Trump would refuse to leave office if he failed to win reelection. Now, a constitutional crisis could be coming – one never before faced here.

For the second time Wednesday, the president declined to say he would accept the results of the Nov. 3 election if he loses. He also admitted he wants to fill the current Supreme Court vacancy swiftly to pack the court ahead of any challenge he might seek to pursue if election results don’t go his way.

“Well, we’re going to have to see what happens,” Trump told reporters during a press conference, again complaining about expanded mail-in voting because of the coronavirus pandemic and saying mailed-in votes should not be counted.

“We want to have — get rid of the ballots and you’ll have a very trans- — we’ll have a very peaceful — there won’t be a transfer, frankly; there’ll be a continuation,” Trump said. “The ballots are out of control. You know it. And you know who knows it better than —”

He then cut off the reporter who challenged his assertion about mail-in voting and pressed on whether there would be a peaceful transfer of power should he lose.

“I think this will end up in the Supreme Court,” Trump told reporters earlier after a meeting with state attorneys general. “And I think it's very important that we have nine justices.”

Ruth Bader Ginsburg’s death last Friday left the high court with just eight justices – five conservatives and three liberals. Trump is expected to name a replacement candidate Saturday.

Trump's remarks provoked a response from Democratic rival Joe Biden.

“What country are we in? I said what country are we in? Look, he says the most irrational things. I don't know what to say,” Biden said during a campaign stop in North Carolina.

Trump has been casting doubt on the validity of the election and suggested that whoever is leading on election night be declared the winner – regardless of outstanding ballots. He has been alleging, without evidence, that mail-in voting will lead to widespread fraud. At the same time, he’s been tweeting that people should request ballots.

Sowing confusion and division have been hallmarks of his presidency.

Election results are not official until each state conducts a canvass and certifies the results, likely by Dec. 3. The deadline for settling disputes is Dec. 8 and the Electoral College is due to meet Dec. 14. Congress then is to meet in joint session Jan. 6 to count the electoral votes and finalize the results. (A candidate needs 270 electoral votes to win.)

Should the electoral vote wind up in a tie, the House votes to elect a president. With the House likely to remain in Democratic hands, Biden would be the likely winner, but the House is not bound to choose to choose between the Republican and Democratic presidential nominees, meaning another candidate could emerge.

The inauguration is set for Jan. 20.

Presidential election results have been challenged few times in U.S. history. Trump set the stage for a challenge in 2016 when polls indicated Democrat Hillary Clinton was ahead – and she did win the popular vote – claiming it was rigged and would be rife with voter fraud.

Clinton finally conceded the day after the election but has advised Biden against it – even if Trump claims victory election night.

Sen. Bernie Sanders, I-Vt., said in a speech Thursday at George Washington University that the United States is facing an unprecedented and dangerous moment, saddled with a president "who neither understands nor respects our Constitution and who is prepared to undermine American democracy in order to stay in power."

"No matter how rich and powerful you may be, no matter how arrogant and narcissistic you may be, no matter how much you think you can get anything you want, let me make this clear to Donald Trump: Too many people have fought and died to defend American democracy.  You are not going to destroy it.  The American people will not allow that to happen," Sanders said.

The RealClearPolitics average of recent polls indicates Biden is leading Trump by more than 6 points.

In 2004, Robert Kennedy Jr. accused Ohio of stealing the election from Democrat John Kerry and handing a second term to George W. Bush, but the margin was wide enough to prompt most people to dismiss the allegation. In 2000, however, hanging chads in Florida – and a Supreme Court ruling -- decided the election in favor of Bush at the expense of Democrat Al Gore.

In 1960, the close margins in several states – less than 1% in Hawaii, Illinois, Missouri, New Jersey and New Mexico, and 2% in Texas – had Republicans questioning the results, accusing Chicago Mayor Richard Daley and southern Texas Democrats of rigging the vote in favor of John Kennedy at the expense of Richard Nixon. Nixon, however, did not contest the results.

Two incidents occurred in the 19th century: 1888, Cleveland vs. Harrison, and 1876, Hayes vs. Tilden.

In 1888, incumbent Democrat Grover Cleveland lost his reelection big to GOP Indiana Sen. Benjamin Harrison amid a bribery scandal in Indiana, but since Indiana’s electoral votes wouldn’t have made a difference, Cleveland didn’t contest the results. In 1876, 11 years after the Civil War, voter intimidation played a role in Republican Rutherford B. Hayes’ win over Democrat Samuel Tilden. Democrats decided against challenging the result in exchange for GOP agreement to end Reconstruction and the military occupation of the South.

But if Trump loses and refuses to vacate the White House Jan. 20, what happens next?

Former Vice President Gore suggested in an interview with Reuters last month that the military would act.

“It’s important to say that it’s really not up to him. I hear people saying, ‘Well, would he accept that decision?’ Well, it doesn’t matter because it’s not up to him," Gore said. "Because at noon on Jan.20, if a new president is elected … the police force, the Secret Service, the military, all of the executive branch officers, will respond to the command and the direction of the new president.”

But Gen. Mark Milley, chairman of the Joint Chiefs of Staff, said the military has no role in civilian elections.

“I believe deeply in the principle of an apolitical U.S. military,” Milley said in written responses to the House Armed Services Committee. “In the event of a dispute over some aspect of the elections, by law U.S. courts and the U.S. Congress are required to resolve any disputes, not the U.S. military. I foresee no role for the U.S armed forces in this process.”

Republicans spent much of Thursday trying to reassure Americans there won't be a problem. Senate Majority Leader Mitch McConnell tweeted that the transition between administrations will be orderly, "just as there has been every four years since 1972."

Senate Majority Whip John Thune, R-S.D., told reporters that Republicans adhere to the rule of law and would stand up to the president and Sen. Mitt Romney, R-Utah, called a refusal to leave office "unthinkable and unacceptable."