What a second Trump presidency means now and in the future

Former president Donald Trump is, once again, president-elect. The election was called less than 24 hours after polls closed, a turnaround time that many analysts and pollsters did not expect.

Professor Doug Spencer, the Rothgerber Chair in Constitutional Law at the University of Colorado, sat down with CU Boulder Today to discuss the impact of a quickly called race, why a peaceful transfer of power is so important, and what the early days of a second Trump presidency may look like.

There were several predictions that results would take several days. What happened?

I think a couple of dynamics were in play. First, turnout was lower than in 2020, and so there were fewer ballots to count. Second, the states seemed to learn lessons from 2020 by instituting new mechanisms to count the vote faster. For example, there was a lot of attention on Pennsylvania, where they don't start processing mail-in ballots until Election Day and where a winner was not announced in 2020 until the Saturday after the election. This year the state brought in more poll workers and election judges and were able to process and count ballots quickly enough that the race was called just 6 1/2 hours after the polls closed. Third, and perhaps most importantly, Trump's margin of victory in the swing states will likely be larger than Biden's margin of victory in 2020, meaning it was possible to call the race before every ballot was counted.

How significant is it that the election was called overnight, when many voters may have been bracing for a wait like they did four years ago?

I think it's very significant. The longer it takes to call an election, the more space there is for candidates to breathe air into conspiracy theories about the various moving parts based on incomplete evidence. We saw this in 2000 in Florida. We saw it again in 2020. However, when the election is called by 2 a.m., complaints about the process are unlikely for two reasons: First, there really isn't enough time to mount a formal complaint or to develop a communication strategy to whip up a furor. Second, when a race is called within 24 hours, that means the margin of victory was likely relatively robust which cuts the sails of any complaints because the odds of changing the results is miniscule.

Biden and Harris are now in a lame duck presidency. What do the next few months look like for them?

We have this really interesting situation in the country where we have an election two months before we inaugurate the winner. We need this much time to ensure we are able to properly count all of the ballots, accommodate any recounts, and exhaust any legal challenges, as was the case in 2020. This two-month window is also important for the new president-elect to form a transition team and prepare themselves to take over the most powerful government in the world. However, when an election goes smoothly, and the winning margin is large, and the incoming president already has a transition plan and doesn't need a lot of job training, then this two-month window can feel like a long time.

All that said, Biden remains the president of the United States. The U.S. Constitution says he will be the president of the United States until 11:59 a.m. on Jan. 20, and nothing that Donald Trump says or does between now and then can change that fact.

Biden is a lame duck president, and it's unlikely he'll try to pass any major legislation, or that he could, but he still speaks for the nation in terms of our relationships with other countries. For example, he will still direct our foreign policy with respect to Ukraine, the Israel-Hamas war, the conflict between Israel and Lebanon, etc. And he will remain the leader of our country until Jan. 20, 2025.

We know Republicans have control of the Senate. What does that currently empower Trump to do come Jan. 20?

The new members of Congress will be sworn in on Jan. 3, before the president. Having a majority in the Senate is particularly important for president-elect Trump because the Senate has the power to confirm all of his appointees to his cabinet and any judicial positions that open up, including the Supreme Court.

There will still be a challenge to pass major pieces of legislation without a 60-member majority in the Senate because of the filibuster and the need for a cloture vote. But on staffing the government, where there was some thought he may have to rely on acting secretaries, he now has a friendlier audience to confirm the people he wants for cabinet positions.

What impact does that have on checks and balances?

There are three checks on a president's power-legal checks, political checks and electoral checks. All three of these checks, at present, do not exist for Donald Trump.

The Supreme Court has removed most legal guardrails, holding that he will have immunity for most every action that he will take when he's president. Congress has the ability to check the president politically: They can revoke funding for his projects, override his veto, overturn an executive order, or even impeach the president. However, in modern times when Congress is controlled by the same party as the president, those political checks are rarely invoked. In practice, our government is predicated on the separation of parties and not a separation of power. Finally, the president can be checked electorally. If you don't like a candidate-their personality or their policies-then you can vote against them, and the threat of alienating voters can act as a check on the president. In this case, voters have spoken that they want Trump, and because he will not face another election, there won't be any electoral check on his power either.

What could happen to the criminal cases against him?

Any of the cases that are brought by a federal prosecutor, like Special Prosecutor Jack Smith's cases related to election subversion and the Jan. 6 insurrection, and having secret documents at Mar-a-Lago-those are under the purview of the Department of Justice (DOJ). While these cases could potentially continue against Trump, Smith has signaled he will wind down and close his investigation under the direction of Attorney General Merrick Garland in line with long-standing DOJ policy to not prosecute a sitting president. Notably, even if Jack Smith pursued his investigation, Trump has said that as soon as he takes office, he would direct his new attorney general to end the investigations immediately.

The story is more complicated with respect to cases that have been brought by state officials. The president has no authority over a state's attorney general or local district attorney, both of whom are usually elected officials themselves. So he cannot unilaterally stop the prosecution against him in Georgia for election interference, or his upcoming sentencing in New York for falsifying business records. Relatedly, the presidential pardon power does not apply to state crimes (though a governor could pardon him), and so he remains vulnerable to legal action in these two cases.

There's been a lot of focus on the polls and how or why they may have missed the mark. Do we have any idea why the polls predicted a close election and yet Trump looks set to win the Electoral College by almost 100 votes?

It's entirely too early to have an understanding of how the polls performed or didn't perform because we don't have the actual final numbers. If we look ahead to the next few weeks, the states will certify their vote totals, they will follow their procedures for getting those vote totals to Congress by Jan. 6 and then Congress will certify or ascertain those votes.

But all of these certifications are just a formal acknowledgement of who won. The actual total number of votes may not be finalized in a state until the new year. Only at that point will we know exactly what the turnout was and how far the vote totals deviated from any polls. And then the postmortem will begin, where pollsters will scrutinize their methodologies to address the hardest problem in political polling: weighting the sample of survey respondents who are likely voters to match the final group of actual voters that show up to the polls.

Do any early political trends stand out to you?

There's a realignment happening, and some of that, I think will be really healthy. In particular, we are seeing a realignment among nonwhite voters. A lot of nonwhite voters voted for the Republican candidate. We've seen more Black voters vote for Trump than any Republican candidate, I think, since 1960 and the Civil Rights era. This shift will change the dynamic of politics going forward, and I think this change will be good for the country. Prior to 2024, political issues are commonly categorized as a white voter issue or a Black voter issue. And now that these issues cut across racial lines, our conversations can be de-racialized and less racially toxic. I view this as a very good development if the numbers that we're seeing from this election really play out that way.

Any other final thoughts?

I think the average person thinks we should judge democracy based on what the winners do. Do they deliver for me? Do they bring tax cuts in ways that I appreciate or spend money in ways that I would want?

But we know from long lines of research that people's views about democracy and its legitimacy are shaped more by the behavior of the losers than the winners. When the losers concede and behave in a classy way, voters are more likely to accept the outcome, express faith in the legitimacy of elections and democracy as the proper way to resolve disputes.

We saw this with Al Gore's concession speech in 2000. We did not see it in 2020, which proved fateful as Trump's supporters sought to use violence to overturn the results of a free and fair election. We did see it again this year as Harris conceded the election, saying, "I know folks are feeling and experiencing a range of emotions right now. I get it, but we must accept the results of this election." This simple statement will build trust in our democratic system in a very healthy way at a really important time.

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