According to a White House-sourced article by Axios’ Jonathan Swan, Trump had privately workshopped the scenario in recent weeks even “describing plans to walk up to a podium on election night and declare he has won”.
In theory, a candidate could claim victory at any time — but they still wouldn’t be president until they received the minimum 270 Electoral College votes required under the constitution. (The Electoral College doesn’t formally vote until December 14, although its votes are generally based on who wins each state).
Whether Trump likes it or not, counting takes time — all the more so when a pandemic spurs an unprecedented number of ballots being cast early and by mail.
States such as Florida, North Carolina, Ohio and Iowa, for example, count their early votes ahead of election day and are expected to upload them soon after polls close.
In contrast, the critical swing state of Pennsylvania only starts counting its early votes on election day and is likely to take several days to complete the process.
Television networks and executives are well aware of this and have made it clear that they will exercise caution, regardless of what the President may say on the night.
“Frankly, the wellbeing of the country depends on us being cautious, disciplined and unassailably correct,” said Noah Oppenheim, the NBC News president, told The New York Times. “We are committed to getting this right.”
But while prematurely declaring victory won’t necessarily make it so, it would lead to heightened confusion in the electorate, and potentially give Trump the chance to claim the election was “rigged” or “stolen” if Biden was eventually declared the winner.
This would no doubt exacerbate tensions and unrest in a bitterly divided country already on edge.
The courts are flooded with contested cases
Trump has sought to delegitimise the election for months, by casting doubt on the validity of postal ballots, so you can certainly expect to see plenty of legal challenges in the days ahead.
The President made this clear on Monday, when he raised concerns about recent decisions by the courts to allow swing states such as Pennsylvania to count votes arriving by post after election day — provided they’ve been sent and postmarked prior to November 3.
“As soon as that election is over, we’re going in with our lawyers,” he said.
“I don’t think it’s fair that we have to wait a long period of time after the election. Should’ve gotten their ballots in a long time before that. Could’ve gotten their ballots in a month ago. I think it’s a ridiculous decision.”
In expectation of the battles ahead, both candidates have established litigation teams to contest ballots in the event of a close contest.
The President’s team —“Lawyers for Trump” — is led by Texas Attorney General Ken Paxton, a former Tea Party conservative who had a few legal troubles of his own recently, when he was accused of persuading investors to buy stock in a tech firm without disclosing that he’d profit from it. (Paxton has denied the allegations).
The group also includes the President’s personal lawyer Rudy Giuliani, Florida Attorney-General Pam Bondi, Arkansas Attorney-General Leslie Rutledge, and former Deputy White House Counsel Stefan Passantino.
Meanwhile, Biden’s campaign has set up its own “election protection program” in the anticipation of a contested election. It includes former US attorney-general Eric Holder; Bob Bauer, who was co-chair of former president Barack Obama’s Presidential Commission on Election Administration; and the Biden campaign’s general counsel, Dana Remus.
The House of Representatives intervenes in the event of a tie
While it’s highly unlikely that the result will be tied, it’s not impossible.
After all, the US voting system requires the winner to receive at least 270 of all 538 Electoral College votes (half plus one). But the even number, in theory, could lead to a 269-269 split.
Fortunately, the US Constitution makes clear how this should play out. If there’s no winner in the Electoral College, the decision of who becomes president goes to the House of Representatives, while the Senate picks the vice-president.
In the House, each state delegation gets one vote for president — regardless of how big the state is. In the Senate, each Senator gets one vote to pick the vice-president. The candidates need 26 states to win.
It’s hard to know whom this system would benefit because the vote would be based on what the new House looks like (House seats are also up for election).
There is, however, precedent for a tie, dating all the way back to the US presidential election of 1800. That contest, only the fourth in America’s history, involved the two candidates, Thomas Jefferson and Aaron Buur, receiving 73 electoral votes each.
But in a sign that a simple congressional vote isn’t as easy as it might sound, the House deadlocked 36 times before it finally picked Jefferson as the winner.
Taking place against a backdrop of COVID-19, economic shocks, and a reckoning on racial injustice, this election was always going to be a little tense.
Add a potentially close contest and a President who has refused to rule out a peaceful transfer of power, and it’s little wonder America is on edge.
Around the country, signs of tension are everywhere. Businesses are being boarded up. The FBI is investigating a convoy of Trump supporters ambushing a Biden campaign bus in Texas last weekend. And gun shops have reported a rise in sales. Even Walmart has temporarily taken guns off the shelves in some stores, as it does whenever there are fears of civil unrest.
None of this means that violence is inevitable, but it is most certainly possible given the level of polarisation between America’s left and right, and its hyper partisan media environment.
It’s also worth noting that the US has endured difficult elections before: the 1860 election preceding the Civil War was regarded as the most toxic campaign in the nation’s history.
It also delivered the leader that many now believe to be the country’s greatest president: Abraham Lincoln.
Farrah Tomazin is a senior journalist covering the 2020 US presidential election.