Much as Gore did in 2000 — albeit far more loudly — President Trump is refusing to concede the election. Legal teams have been mobilized in several states to draw attention to certain practices which, viewed objectively, are at least questionable. But does this mean Trump still has a chance to win? Why would he challenge the results if he didn’t?
It’s complicated. (You knew I was going to say that.)
Nevada is still counting, and some mail-in votes can arrive for some days yet in several states. Nevertheless, the post-election results are in favor of Democratic candidate Joe Biden — narrowly, but convincingly.
There exist several challenges in Pennsylvania and Georgia with respect to the manner in which the election was won, some of which will go through the courts. With the caveat that there’s no way of telling in advance which way any given judge will decide a complex issue, nevertheless there exist some few certainties on which we can rely to analyze and predict the process going forward.
It would take hours to go into all the details, one of which being the relative constitutionality of the Electoral Count Act of 1887. But for most of the questions there’s no need; the results of this particular election won’t be changed thereby. (The E.C.A., for example, could be challenged, but even if the present Court mandates it be rewritten, it will still be largely binding under due process.) Let us then focus on those few meaningful factors that may yet influence the results — simplified for understandability.
In both Georgia and Pennsylvania, there exists a robust set of laws to prevent ballot-harvesting, a practice by which partisan (and often paid) political operatives gather the votes of large groups of people — shut-ins at nursing homes, for instance. The laws exist because, as these operatives are not neutral public servants, they can easily influence the votes cast or mishandle the ballots even after sealing. (This happens in local races all the time, despite the illegality.)
However, due to the emergency measures put in place in response to the COVID-19 pandemic, most of these protections have been drastically weakened in those states. The legislature of Pennsylvania is demanding an audit based on the new practices, which according to a letter sent by the Speaker of the House violates both due process and the written elections law. As a result, it is not unimaginable that Pennsylvania’s electoral votes could be contested, eliminated, or even in an extreme case flipped back to Trump.
There are two things to consider here: First, that this election was decided not by 330 million Americans but rather by margins in six states that add up to just over 100,000 total votes; there is no pro-Biden mandate. Second, that there exists a robust procedure by which electoral votes are validated, and that the fact that this procedure is being employed is evidence that our elections system works. If Pennsylvania’s vote flips, it’s not because of legal chicanery but rather because an actual problem was detected.
And have no doubt: Ballot harvesting arguably took place in massive numbers in and around Philadelphia, Pittsburgh, and Atlanta (not to mention Minneapolis), and in such a way as would in any normal year have been egregiously illegal. It’s reasonable to assume that Republicans too engaged in similar tactics; however, Republicans don’t do so well in urban areas.
While this is all true, it must be acknowledged that, in other states, this practice isn’t considered at all immoral, much less unethical or illegal in any way. California law, for example, is purposefully designed to explicitly permit it, on the perfectly reasonable theory that there are a lot of people who can use help voting, and that to deny them assistance is to disenfranchise them. So to say that ballots were harvested in Pennsylvania in no way says there was cheating. That’s for the courts to decide, and these decisions will be based on the specific wording of state law — which, again, has been changed in order to cope with COVID-19. Like it or not, what wasn’t legal four years ago may well be legal today.
Now, let us confront the magnitude of the challenges faced by Trump’s legal team: Although it would be reasonable to expect action in Pennsylvania, it is more likely that the entire election results in that state would be invalidated than that it would flip. The odds of Trump actually gaining those twenty electoral votes are slim — less than ten percent, as a guess. The same can be said of Georgia. The odds of both states being compelled by the courts to support Trump are thus less than one percent. (Allow a wide margin of error because of the guesswork and it’s still a pretty slim chance.)
And even if this should happen, Biden will still have the 270 votes in the Electoral College required to win — precisely 270.
(This is why I’m still watching Nevada and Arizona numbers quite closely, as well as the Wisconsin recount process. If things change in any of these three states — unlikely but possible — it’s interesting; if the totals reverse in all three, it becomes a completely different ball game. -Editor)
In any event: The “Safe Harbor” date by which all recounts must be completed is the 8th of December; the Electoral College vote will take place on the 12th, and counted by the new Congress on the 6th of January. Whatever happens will be according to procedure; it will be lawful. And we will have a president.
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