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What happens if USA President Loses an Election but won't Leave the White House?

Donald Trump falsely declared victory on the night of the election and vowed to go to the Supreme Court to stop vote counting - confirming some Americans’ worst fears that he would undermine the democratic process. 

Now Joe Biden has won the US election, what happens if the president refuses to leave the White House?

US President, Donald Trump made statements before the election results came out refusing to accept the result of the US election should he lose against Joe Biden. He declined to commit to a peaceful transfer of power if he loses the November 3 election to Democratic rival Joe Biden and said he expected the election battle to end up before the Supreme Court.

"We're going to have to see what happens," Trump, a Republican, told reporters at the White House when asked whether he would commit to transferring power.

The president, who trails Biden in national opinion polls, has repeatedly cast doubt on the legitimacy of the election, asserting without evidence that mail-in voting would lead to fraud and a ‘rigged’ outcome.

"The ballots are a disaster," Trump said.

Democrats have encouraged voting by mail as a way to cast ballots safely during the coronavirus pandemic. Millions of Americans, including much of the military, have cast absentee ballots by mail for years without problems.

In 2016, Trump also raised questions about whether he would accept the results of the election. And needless to say, he went on to win the presidency.

This isn’t the first time the question has become one of national importance: Each time the president has suggested he will only accept the results of an election if they were in his favour, media outlets have explored the constitutional limits he would face in disputing his dismissal from the Oval Office.

Former Vice President Joe Biden has prepared his own army of attorneys and constitutional law experts to counter the president's legal challenges on everything from expanded mail-in voting during the coronavirus pandemic to alleged instances of voter fraud, which Mr Trump has claimed without evidence.

Mr Biden has insisted federal officials “will escort [Mr Trump] from the White House with great dispatch” if he loses the election. 

Biden, speaking to reporters in a press conference in Delaware, said Trump's comments on the transition of power were irrational.

His campaign said it was prepared for any ‘shenanigans’ from Trump, and reiterated comments from July that "the United States government is perfectly capable of escorting trespassers out of the White House."

Mitt Romney, a rare Trump critic among Republican senators, said on Twitter: "Fundamental to democracy is the peaceful transition of power; without that, there is Belarus. Any suggestion that a president might not respect this Constitutional guarantee is both unthinkable and unacceptable."

In one scenario, assume that challenger Joe Biden wins by a wide enough margin in enough swing states to put the actual election results beyond doubt. It's reasonable to wonder whether Trump, who has said that he could only lose if the election were rigged against him, would ever accept the results of an election he lost.

According to the 20th Amendment, if Trump loses the election, his term would end at noon on Jan. 20, 2021, at which time he would officially pass his commander-in-chief authority to Biden. 

Trump frequently claims that mail-in ballots are vulnerable to mass fraud and are being encouraged by Democrats to rig the election. However, there is no evidence that ballots sent through the postal service have ever led to significant fraud in US elections.

At the press conference, Trump seemed to suggest annulling what are expected to be the huge numbers of mailed-in ballots, saying that in such a scenario, he would remain in power.

"Get rid of the ballots and you'll have a very peaceful -- there won't be a transfer, frankly. There'll be a continuation," he said.

Trump's latest insistence that there cannot be a fair presidential election on November 3 came as pressure mounts over his plan to put a new, right-leaning justice on the Supreme Court.

Trump is set to nominate a replacement on Saturday for the late liberal-leaning justice Ruth Bader Ginsburg. His Republican Party, which has a majority in the Senate, is then expected to quickly confirm the nominee.

If they succeed, the nine-justice court would then likely have a strongly pro-conservative bent for years to come.

Democrats are crying foul, saying that the process should wait until the results of the election are known, allowing the winner to shape the Supreme Court.

With Trump and the Republicans mounting a series of court challenges against the use of mail-in ballots, the chances of a contested election result are considered high.

Should Democrat Joe Biden defeat Trump, the president can and likely will contest the results of the election if it’s at all close, experts say, and one way to do so is through the courts.

“All candidates have a right to contest results in federal court,” Constitutional law expert Jonathan Turley told Politico. “It’s not up to the candidate to decide if an election is valid. It’s not based on their satisfaction or consent. They have every right to seek judicial review.”

It wouldn’t be the first time an election has ended up in court.

In 2000, the U.S. Supreme Court reversed a decision from the Florida Supreme Court to manually recount the state’s election ballots, which effectively gave George W. Bush the presidency. The high court ruled that the recount couldn’t be done in time to meet the deadline to select electors, according to FiveThirtyEight.

Bradley Shrager, a lawyer specializing in election litigation, says that contesting the results in multiple states would be a “massive undertaking” and that a legal battle couldn’t drag on for too long because there are deadlines for submitting electoral vote counts.

Given the time frames to launch recounts and election contests, you’d have to be preparing months in advance to be able to do that.

The courts aren’t a president’s only avenue to contesting the election results - he could also ask state legislatures to act in his favour.

Electors are chosen by popular vote, but the Constitution doesn’t require that they are. Article II states that each state is to appoint electors “in such manner as the legislature therefore may direct.”

Should Trump lose and make claims of voter fraud, he could ask Republican-controlled state legislatures to ignore the popular vote and choose electors directly, The Atlantic reports. The longer he can keep “the vote count in doubt, the more pressure legislators will feel to act before the safe-harbour deadline expires.” Dec. 8 is the deadline for appointing the electors who make up the Electoral College, per The Atlantic. Electors from each state meet on Dec. 14 to cast their votes.

Many states’ laws require electors to follow their state’s popular vote, and in the past — and while rare — some electors have voted for someone else, according to usa.gov. But according to a Supreme Court ruling in July, “electors must follow their state’s popular vote, if the state has passed such a law.”

So yes, things could get a little messy.

“Things would get problematic if the legislature tries to take back the power to choose electors by claiming the popular vote failed,” Ned Foley, professor at Ohio State University and member of the National Task Force on Election Crises, told VICE News.

Even if a president refuses to leave office or accept the election results, he becomes “irrelevant” once a new president is sworn in and would be a “guest” or “interloper” at the White House, Turley told Politico.

“The system would make fast work on any president who attempted to deny the results of the election,” he said, according to Politico.

But such a situation could be a constitutional minefield.

The 20th Amendment requires that someone be sworn in as president on Jan. 20. But it offers no guidance on a “dispute over whether someone has actually qualified to take office,” according to FiveThirtyEight.

“The thing that we know for sure is the current term ends,” Edward Foley, from Ohio State University’s Moritz College of Law, told FiveThirtyEight, adding that figuring out who would take office wouldn’t necessarily be straightforward if there’s disagreement.

Speaker of the House Nancy Pelosi, a California Democrat, could argue that she would be next in line to become president.

Under the Presidential Succession Act, the House speaker and the Senate president pro tempore are in the line of succession for president, with the speaker being at the front of the line.

But FiveThirtyEight says Republicans would likely fight that and things could “spiral out of control” from there.

If he doesn’t agree to vacate the white house if the election results don’t come out in his favour, the procedure then is clear.

"At that point it gets passed on to Congress and certified in Congress on Jan. 6 by the outgoing vice president," Shapiro said. "Now, on the 6th, let's say that the House and the Senate accept that the new president of the United States is Joe Biden. At that juncture, if Trump doesn't want to vacate the White House, this is very easy."

There's little Trump could do to hold on to power.

"Somebody swears in as president. It could be the chief justice of the Supreme Court. It could be his grandmother. As of Noon, on the 20th of January, he's the president of the United States. The entire Secret Service reports to him," Shapiro said. "Donald Trump as the outgoing president has a contingent of Secret Service. Biden goes to the White House and the Secret Service escorts Trump out. That's what happens. All the civil service of the government, every employee of the United States reports to Joe Biden at that juncture."

This story of a straightforward resolution comes with its own assumptions: That the electors are able to vote and have their votes certified; that institutions of the federal government -including Congress, with its roll in certifying results -function as expected; and that the Secret Service (as well as other armed federal agents) follow the law. There are places in the world and moments in history where transfers of power have broken down along similar lines. But never before in the United States. 

As Jonathan Gienapp, a Stanford University historian, noted in October, Trump's refusal to commit to a peaceful transfer of power calls the strength of American institutions into question. The constitution itself has no direct safeguards to ensure peace, and instead assumes that everyone involved in an election shares a commitment to abiding by the outcome.

"We have institutions that can be called upon to arbitrate disputes or deny unlawful usurpations of power, but the safeguards that will decide matters are more political than constitutional," he wrote. "It may fall to elected political leaders, as it did in 1876-77, to work out some sort of compromise. Or, if necessary, the people will need to exercise their fundamental right to assemble and protest in an attempt to bring about resolution."

Still, Shapiro said he expects America's multi-century streak of turning over the presidency according to the rules to continue, if everything goes right up until that point.

"That's the easiest scenario," he said. "I think the Secret Service is going to report to the new president of the United States. The harder scenario is getting the agreed-upon vote count and the agreed-upon electors."

All that said, a recalcitrant Trump could do plenty in the months between today and inauguration to make trouble for Biden, if Biden wins. Presidential transitions are tricky processes, Shapiro said. Thousands of political appointees across the federal government, from the NASA administrator to middle managers at important federal agencies to cabinet officials, would have to be replaced as the Trump administration turned over to a Biden administration. Typically, outgoing and incoming teams work closely on this. But Trump could simply refuse to let Biden staff through the doors before inauguration, making the handover unusually difficult.

In the end though, Shapiro said, it would happen - an entire transition conducted from a distance, unfinished until after inauguration would still be a transition. There would be a new administration, and the old administration would have to go away.

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