Could Trump use his presidential powers to declare the results invalid? Your U.S. election questions answered


From presidential powers to voter fraud claims, we’re tackling what you want to know about the 2020 U.S. election. Email us your questions to ask@cbc.ca and we’ll answer as many as we can here on CBCNews.ca, on CBC News Network and directly via email. (And keep your COVID-related questions coming to COVID@cbc.ca.)

Could Trump use his presidential powers to declare the results invalid somehow?

Even before the election started, U.S. President Donald Trump signalled that he might not accept the results.

Bruno B. wrote to us asking if the president could leverage his official powers to influence the outcome, like with an executive order.

The answer is no. 

“That’s not something that’s going to happen,” said Ryan Hurl, assistant professor of political science at the University of Toronto.

“He would be immediately ignored.” 

One of the main reasons why is that the current administration has no control over the election, explained John Fortier, director of governmental studies at the Bipartisan Policy Center, a Washington, D.C.-based think-tank that promotes bipartisanship.

Unlike Canada and many other countries, the U.S. doesn’t have a federal institution that oversees the election process. Elections are run at the state level.

“We don’t really have one election going on, we have 51 different elections between the states and D.C.,” said Fortier.

“Literally speaking, the president does not have a role in running the election, so the pretty simple answer is no.

Could he use the military?

As commander-in-chief, Trump is the head of all U.S. armed forces and he would retain this position until a new president is sworn in. Reader Frank F. wondered if there was a chance that the military might get involved.

The experts we spoke to said it would be unlikely because the military would only act on orders that were seen as legal.

“The president cannot issue an order that thwarted the peaceful transfer of power and expect it to be obeyed,” said Peter Feaver, civil-military scholar and professor of political science and public policy at Duke University.

“Military officers know that it’s their duty and the norm not to obey illegal orders,” said Richard Kohn, retired professor emeritus and military historian at the University of North Carolina.

And if Trump were to try to issue an illegal order anyway, Kohn said “there are plenty of military lawyers that are ready to answer a question from a commander, at whatever level, asking if an order is illegal.”

Kohn also noted that the highest-ranking and most senior military officer in the U.S. Armed Forces has already said he wouldn’t get involved.

Trump shakes hands with Chairman of the Joint Chiefs of Staff Gen. Mark Milley during a briefing with senior military leaders at the White House in Washington, D.C., on Monday, Oct. 7, 2019. (Carolyn Kaster/Associated Press)

Chairman of the Joint Chiefs of Staff Gen. Mark Milley told NPR that election disputes will be handled appropriately by the courts and by U.S. Congress.

“There’s no role for the U.S. military in determining the outcome of a U.S. election. Zero. There is no role there.”

But that doesn’t mean that the president isn’t able to indirectly affect the process in other ways, such as lawsuits. 

Who pays for Trump’s lawsuits?

After falsely claiming the Democrats were “trying to steal” the election from him, Trump said his team had launched “tremendous litigation.

That led a number of readers, including Lawrie B., to ask who’s on the hook for all those legal bills.

In most cases, campaigns and parties pay for legal challenges and state recounts with money raised by political donations, said a spokesperson with the Federal Election Commission (FEC). But there are exceptions around who can donate. 

According to the FEC, corporations, labour organizations, national banks and foreign nationals are prohibited from contributing political donations to legal challenge funds.

Rudy Giuliani, a lawyer for Trump, speaks during a Philadelphia news conference on legal challenges to vote counting in Pennsylvania on Wednesday, Nov. 4, 2020. (Matt Slocum/Associated Press)

When it comes to recounts specifically, Fortier said who pays depends on whether it’s an automatic recount, or one requested by the candidate and the rules can vary from state to state.

For example, in many states, if the margins are close enough, an automatic recount is triggered and that would be paid for by the state, he said.

However, that’s not the case across the board. In Nevada, for example, a candidate can request a recount no matter the margin, but it would fall on the candidate and their campaign to cover the costs.

Is there any evidence of voter fraud?

The president’s accusations of widespread voter fraud in key battleground states has some CBC readers wondering if there is any merit to them.

The experts say no.

The head of an international delegation monitoring the U.S. election said his team has no evidence to support Trump’s claims about alleged fraud involving mail-in ballots.

WATCH | Trump makes unfounded allegations about ‘illegal’ votes:

Republican presidential candidate Donald Trump said Thursday that Democrats could ‘try to steal the election from us’ if ‘illegal votes’ cast after election day were counted. There is no evidence that ballots were cast after Nov. 3. 0:40

Michael Georg Link, a German lawmaker who heads an observer mission of the Organization for Security and Co-operation in Europe (OSCE), told German public broadcaster rbb that “on the election day itself, we couldn’t see any violations” at U.S. polling places they visited.

Link said he was “very surprised” by Trump’s claims about postal ballot fraud because the United States has a long history of this method of voting going back to the 19th century. The Vienna-based OSCE, of which the U.S. is a member, conducts observer missions at major elections in all of its member countries.

“We looked into this,” Link told the German broadcaster. “We found no violations of the rules whatsoever.”

What about allegations in some states that more people voted than were registered?

Some readers were wondering about online claims that the number of votes in Wisconsin, for example, exceeded the number of registered voters.

Frieda W., asked us how this could happen.

The answer is it can’t. On the surface the numbers may seem irregular, but Fortier said it’s a matter of when someone registers to vote. 

A number of states, including Wisconsin, have same-day voter registration. That means pre-election day voter registration lists become out-of-date when previously unregistered voters show up on election day.

“You’re comparing this older number where you say ‘well, before the election, we had this list of people,’ but then other people showed up,” Fortier said.

Elections Wisconsin even addressed the claims circulating on social media.

Why is Pennsylvania so important?

It’s been hard to miss the political drama centred around Pennsylvania.

That’s because the northeastern state’s 20 electoral college votes can make or break a presidential campaign.

Maureen O. wants to know why the state has so many.

Republican canvas observer Ed White, centre, and Democratic canvas observer Janne Kelhart, watch as Lehigh County workers in Allentown, Pa., count ballots on Friday, Nov. 6, 2020. (Mary Altaffer/Associated Press)

The short answer is population.

States are allocated electors based on the number of congresspeople each state has in the U.S. House of Representatives, plus two for the number of senators each state has in the Senate. 

With an estimated 12.8 million residents, Pennsylvania is the fifth largest U.S. state behind New York, Florida, Texas and California. 

Nearly all states use a “winner-take-all” voting system. That means the winner of the popular vote in that state takes all of that state’s electoral votes. 

What about Nebraska and Maine?

Observant readers will have noticed that Nebraska and Maine are highlighted on election result pages. Ian S. asked why these states are striped on our map.

The answer has to do with how they award their electoral college votes. 

Nebraska and Maine award two electoral votes based on the winner of the state-wide popular vote, then the remaining electoral votes are awarded based on the winner of the popular vote within each individual congressional district — two in Maine and three in Nebraska.

This means those two states sometimes have a split electoral vote. 

If you think that sounds complicated, you’re not alone. There’s a long history of wanting to abolish the electoral college.

Could they get rid of the electoral college?

Former Democratic contenders Pete Buttigieg and Senator Bernie Sanders have both called for the abolition of the electorial college.

And there have been hundreds of proposals introduced to Congress over the years to reform or eliminate the process. 

A recent Gallup poll suggested 61 per cent of Americans are in favour of abolishing it, but Democratic candidate Joe Biden is not one of them

Whatever you think about the electoral college, experts say it’s here to stay, for now.

“You can imagine the country evolving in that direction,” said Ryan Hurl, the U of T professor. “But it’s not on the immediate horizon.”

That’s because the electoral college is enshrined in the U.S. Constitution, and it would require a constitutional amendment. 

“It raises problems that are more damaging than the problem that exists,” Biden wrote in a New York Times editorial.

Why is it so difficult to change the U.S. Constitution?

Because it was made to be, said Hurl. 

Article V of the U.S. Constitution requires two-thirds majority of both Houses of Congress, or two-thirds of State legislatures to propose amendments and needs to be ratified by three-fourths of the States. 

And as Hurl points out, it’s unlikely to happen in this deeply partisan time. 

Fortier agrees. “It is a very high hurdle. It requires huge buy-in from both parties and it’s something we don’t do frequently because of that.”



Read more at CBC.ca