With six months to go until November’s 2020 election, dozens of America’s top legal minds convened to consider what would have been unthinkable before Donald Trump’s presidency. They gathered to brainstorm what could be done to prevent the country from descending into a “civil war-like scenario,” as one participant put it, if Trump and Joe Biden both claim that they won the presidency-and won’t back down.
Their May 4 teleconference parsed a series of nightmare scenarios in the aftermath of the November 3 election that would lead to competing Electoral College results being sent to Congress from battleground states-one issued by a Republican legislature backing Trump, and another issued by the Democratic governor backing Biden.
The scenarios continued onto January 6, 2021, where, in a joint congressional session to ratify the Electoral College votes presided over by Vice President Mike Pence, the House and Senate were sent to their chambers to debate for two hours. When they reconvened, the Senate backed the Trump electors while the House backed the Biden slate.
The question put before the scholars was what could stop the 2020 election from spiraling that far out of control or going even further downhill, as occurred in the 1876 presidential election when two candidates claimed to win, waged relentless partisan battles, and were both planning separate inaugurations-with Samuel Tilden backing down only 48 hours before Rutherford B. Hayes was sworn in as president.
“My big fear, as a country, is that we don’t know our history well enough to know that we came within 48 hours of inauguration day with two people claiming to be president, and the incumbent thinking about martial law-that was Ulysses Grant because he was worried that there were going to be two simultaneous inauguration sessions,” said Edward B. Foley, director of Moritz College of Law’s election law program at Ohio State University and a national authority on disputed presidential elections. He organized the brainstorming session with Steven F. Huefner, a Moritz senior fellow and former U.S. Senate counsel who also is an expert on vote-counting disputes.