Terry H. Schwadron
Nov. 3, 2020
OK, Election Part 1 comes to an end tonight.
If it’s a landslide by any other name — that is if some combination of Florida, Arizona, North Carolina, the Rust Belt states all show Joe Biden definitively ahead, we move to Planning for Change.
If every poll has been badly wrong and turnout, always the tricky factor, continues as strong as pre-Election Day, the right states fall into Electoral College place, and Donald Trump wins, we can start girding for four more years of democratic darkness right now.
More likely, however, if voting is closer, or too many votes remain outstanding and waiting to be counted, we move to Election Part II.
In the sequel, almost never as good as the first in the series, in which the cast turns to lawyers and potentially hundreds of legal challenges of the rules about vote-counting.
That, of course, could lead to Election Part III, involving armed, self-described militia members, clashing with political opponents in the streets, hints of which we already have noticed. But let’s not go there. Yet.
The first new focus for endless political discussion and division will be all the arcane state rules or lack of specific guidance in times of pandemics and natural disasters. Together, they will create a new man-made disaster that may last weeks until resolution.
For a nation — and a president — that demands an outcome in moments rather than months, this will be excruciating. And all indications are that the narcissism of a cornered Donald Trump will ensure that his discomfort will be shared by all.
Gray-suited army of lawyers for Trump and Biden are preparing for battle in every battleground state.
Collectively, we should pour a stiff cocktail and expect to wait on the outcome, just like Florida in 2000.
If you thought the campaign was ugly, just wait. Most of the alternatives we hear being batted about by pundits are pretty awful — which is saying something when Michigan court says it’s perfectly ok to bring a gun to the polls in an open-carry state (so long as you don’t try to intimidate anyone).
All of them assure that we ignore the popular vote of Americans — you know, the thing we say we cherish about this country. Actually, we’re betting that what we really cherish is stealing the election.
And most of possible post-election maneuvers look to help a Trump reelection, regardless of the vote.
Of course, the Trump campaign and Republican legislatures around have done their official best to suppress votes in districts where they fear too many opposition ballots, and we have seen both intimidation efforts around polling sites and in social media. Plus, there have been about 300 lawsuits about the rules for mail ballots in this pandemic year, with the general advice emerging to keep those ballots separated until an inevitable Supreme Court ruling settles all.
More or less, we have these options:
— The count of outstanding mail ballots goes on, and we have a result in a few days, or a couple of weeks at most. Only four states, including Pennsylvania and Wisconsin, won’t start counting their millions of mail ballots until today. And the various court rulings leave us with at least one state with more than a week to accept ballots postmarked by today.
— Courts halt some late ballots, apparently based on an unwritten view that state legislatures should have the say over rules rather than state judges. At this point, no one knows how many late ballots there are or will be, or how many the Postal Service has successfully delayed in arriving.
— Competing electors are a possibility in some state, like Pennsylvania, where the legislature is Republican. If results are close enough to provide cover, the legislature simply can name a competing slate of electors to the Electoral College that is different from that indicated by voters — tossing the election to the courts, and a Supreme Court, where a conservative majority is hinting that it may be willing to throw out some mail ballots.
— There is a chance that the U.S. House will step in if no candidate clears the 270 electoral-vote threshold needed to win the presidency. Each state delegation would get one vote, and there are more Republican states than Democratic, though more Democrats in the House altogether.
The only guarantee here: All the lawyers will make money, and democracy will take a hit.
The Right Thing
Of course, what should happen is that Trump and Biden jointly ask for public patience, and specifically tell would-be militia members to put down their guns. Obviously, that won’t happen.
Trump has already repeatedly refused to commit to conceding defeat or to peaceful transition in the event of a loss; Trump will not be silent during any drawn-out counting process. Biden will rise to defend democracy, and thus, the legal fight will be on. According to Politico’s sources, Trump’s team has discussed the possibilities that Congress might step in to determine the election, or that a state tries to certify two conflicting results. Trump has predicted the Supreme Court could end up determining the winner, prompting the unhappiness with shoving Justice Amy Coney Barrett quickly onto the Court.
For its part, the Supreme Court justices have their own credibility at stake, as well as the presidency. The rulings to date have flopped back and forth on the viability of widespread reliance on mail ballots, with the only legal concept emerging as one that favors state legislatures over state or federal judges. That is based on near-zero legal precedent.
Obviously, we have two issues playing out here — an increased reliance on mail ballots for public safety and a maniacal desire to win at any cost. Each state has until the second week of December to certify its results to Congress, giving each only five weeks to navigate any disputes and recounts.
The best hope is for a big enough count by the end of tonight or tomorrow as to make the question of late mail ballots moot.