Normally the presidential election is over by now, but this election wasn’t normal.
For one thing, Covid-19 created a huge push for voting by mail, perfectly understandable given the danger of this new virus. In addition, the election was extremely close. These two factors have combined to create some uncertainty in who will actually be the victor.
It seems obvious that Joe Biden is the likely winner. The Associated Press has the current results as Biden leading Trump by 3% in the popular vote, 50.7 to 47.7; and 290 to 214 in the electoral college.
Several states were extremely close. Biden leads in Georgia by 14,000, just 0.3 percent, Wisconsin by 20,000, just 0.7 percent, Pennsylvania by 54,000, just 0.8 percent and Michigan by 148,000, 2.6 percent. Trump has already filed lawsuits in three out of four of those states, claiming improper election procedures.
Trump may not win those lawsuits, but if he can delay until early December, then the election gets thrown into the U.S. House of Representatives.
But here’s the kicker: The House vote is only one per state. California gets one vote. Mississippi gets one vote. If there are no party defections, Trump wins.
This is a simplistic summary. In fact, it’s even more complicated involving an incredibly complex matrix of Constitutional mandates, federal law, state laws, state legislatures, governors and secretaries of state.
One suspects, before it is all over, the U.S. Supreme Court will have to rule on the intricacies of the law. Never has a president had such good standing with our top court, having just appointed three of its nine members.
If you recall, this is similar to the Al Gore-George W. Bush election in 2000. Gore won the popular vote by 0.5 percent but lost the electoral college vote 271 to 266. Rather than concede, Gore fought in court for a recount in Florida.
In the end, the Supreme Court ruled 5-4 to stop the recount, relying on the Equal Protection Clause of our Constitution.
The 5-4 decision fell along party lines. Judges appointed by Republican presidents voted for Bush. Those appointed by Democratic presidents voted for Gore.
Using the Equal Protection clause gives the Supreme Court enormous power. Essentially, the court said all ballots had to be treated equally or they were tainted.
This bodes well for Trump’s legal challenges. The Democrats pushed hard on implementing new absentee ballot rules. It worked. Turnout increased to 160 million from 136 million in 2016. One hundred million voters voted early. That’s amazing.
This is good for Trump. Given the nature of bureaucracy, it’s likely implementation of such a massive new voting process led to many mistakes. For instance, in Pennsylvania, Trump alleges that some areas would notify early voters of ballot errors and allow the voters to come in and correct them. Others didn’t. That’s a violation of Equal Protection.
Gore’s legal challenge had a big problem. The U. S. House at that time was Republican. A vote by delegation would have certainly gone for Bush.
Trump doesn’t have that problem. Gore had to hurry up and win his case before the Electoral College deadline. Trump just has to delay until the vote gets to the House.
Even so, Trump’s strategy is high risk. The Republican Party could refuse to back Trump for the good of the country. After all, Biden won the popular vote decisively.
Or Trump could graciously concede. Very doubtful.
It gets even more complicated. Georgia has a Republican legislature. The other contested states have split legislatures. The Constitution gives the state legislatures sole power to determine their electors. If the election results are mired in lawsuits and uncertainty, these legislatures could appoint different electors.
Or the states could just decline to certify the existing electors, depriving Biden of 270 electoral votes. Then the U. S. House decides by delegation. Trump would have to be the favorite in that scenario.
All of this hinges on Trump’s legal team to expose significant Equal Protection violations in the vote. If the election process is squeaky clean, none of this can happen.
My guess is that the huge change in our election process this year, driven by Covid fears, probably caused all kinds of voting irregularities. In this sense, the Democrats shot themselves in the foot by aggressively implementing sweeping new election procedures in a short period of time.
All of this has happened before. As mentioned, the Bush-Gore race. Kennedy beat Nixon in 1960 by less than 9,000 votes out of 4.75 million cast, a margin of 0.2%.
Many of Nixon’s advisors urged him to contest several states, but three days after the election Nixon graciously conceded. It was a smart move that probably set the stage for his two terms as president.
Samuel Tilden beat President Rutherford Hayes in the 1876 popular vote by 3.2 percent. According to Wikipedia, voting in Florida, Louisiana and South Carolina, where reported returns favored Tilden, were marked by electoral fraud and threats of violence against Republican voters.
The Republican-dominated state electoral commissions eventually rejected enough Democratic votes to award their electoral votes to Hayes, the Republican.
The election went to a divided Congress, which set up a special commission to decide the winner. In the end, the Democrats agreed to support Hayes in return for his pledge to end Reconstruction.
Presidential disputes go way back to Thomas Jefferson and his race in 1796 against John Adams. According to historian John Ferling, the jockeying for electoral votes, regional divisions, and the propaganda smear campaigns created by both parties made the election recognizably modern.
The mess led to the passage of the 12th Amendment to the U. S. Constitution, which created a more detailed process for resolving disputes and using the House of Representatives as the decider.
Even so, the 1800 election was a mess. The Electoral College couldn’t pick a winner and, ultimately, the House voted by delegation to select Jefferson on the 36th ballot. The politics and jockeying for votes in 1800 makes anything today pale in comparison.
The 1824 election between Andrew Jackson and John Quincy Adams also went to the House, which selected Adams. The Democratic Party of Georgia couldn’t agree on a slate of electors. With the Electoral College unable to produce a winner, it went to the House. Jackson accused Adams of making a variety of appointment promises to win the House.
So this is nothing new. If you enjoy politics, it will make great theater. Does Trump have the moxie and influence to pull it off? John Quincy Adams, Rutherford Hayes and Thomas Jefferson did.
In any event, fears about riots and civil war are unfounded. We have a very stable system with detailed procedures for resolving the election. We just have to be patient and let it play out.