After the Ball is Over: A Plague of Lawyers

Election Day is Tuesday. An astounding percentage of eligible voters have already voted by mail or in person at available sites. As I write, four days before the election, voters nationally have already cast 62.2% of the total votes case in 2016. The early votes in Texas have already surpassed the total vote there in 2016. None of this means that we will know the outcome on Tuesday evening. Many states do not allow early mailed ballots to be opened and tabulated until Election Day. It is little comfort that most pollsters, if their current results hold up, predict a strong Biden victory on Tuesday. They also suggested a certain Clinton victory four years ago. 

The question is whether the pollsters have been able to devise a method to draw out the “shy” Trump voter, one who, exposed to the virulent anti-Trump animus in the media, mass entertainment and culture of the nation, is unwilling to admit to a stranger that he is voting for the despised President. The swing voters are the many who like Trump’s policies on energy, immigration, trade and law enforcement, but are repulsed by his personality and the constant state of uproar that surrounds him. 

The key states to watch are Michigan, Wisconsin, Minnesota and Pennsylvania. Pollsters also claim that Florida, Texas, Ohio, Georgia and North Carolina are in doubt. I don’t think so but, if Trump loses them, he will lose the election, no matter what happens in the key states of Michigan, Wisconsin, Minnesota and Pennsylvania.

The state totals in my four key states and the others I mention are likely to be very close. It is a sad commentary on our current society that platoons of lawyers have been dispatched everywhere to contest or defend any announced results. The election results will be determined, like so much else in our society, in court. Whoever loses will rail at the outcome.

Trump had said in advance of the 2016 election that it might be “rigged.” Hillary Clinton, the Democrats and their handmaidens in the media, while formally conceding, have maintained that Trump’s election was somehow illegitimate. This year Trump, as is his wont, has again prepared for defeat by predicting “corruption” in the handling of mailed ballots, while Mrs. Clinton has advised former Vice President Biden not to concede “under any circumstances.”

The Constitution specifically places the manner of selecting Presidential Electors and the timing of any elections squarely in the hands of the state legislatures, although the timing now must comply with Federal statutes mentioned below. In this season of the coronavirus and widespread voting by mail, activists have commenced lawsuits to adjust state statutory requirements that mailed ballots be received by Election Day or a specified number of days afterward or postmarked by Election Day to be counted. Various court orders have loosened those rules.

We all recall the last seriously contested election in 2000, resolved ultimately by the United States Supreme Court in Bush v. Gore. Even now, we cringe at the memory of photos of Dade County election officials poring over computer punch card ballots to determine if a chad had been sufficiently punched through to indicate a vote. Remember “hanging chads?” Imagine now, not just Florida, but several states where the result is in doubt.  Think of election officials trying to determine if a ballot has a legible postmark. Think of the standards being applied to the recount being contested in state and federal courts in several states. The quantity and complexity of the contemplated litigation is appalling.

And there are deadlines. The date, set by 3 U.S.C. § 1, on which the electors must be appointed is the “Tuesday after the first Monday in November.” This year that is November 3, Election Day. Also by Federal statute the electors in each state must meet to vote on the first Monday after the second Wednesday in December. This year that is December 14.

If there are contests about which electors were elected in any state, that controversy must be resolved under state law six days before the electors meet (this year December 8). The Governor of each state must certify the identity of the electors elected “as soon as practicable.”

The electors meet and vote. They then send certifications of their votes to the President of the Senate (usually the Vice President), the National Archivist and the Federal judge in the local district.

But wait, there’s more. The electoral votes are counted in a joint session of Congress on January 6. This would be made up of the new Congress which takes office under the 20th Amendment on January. The presiding officer of the joint session, however, is the President of the Senate, still the “old” Vice President, as the new one does not take office until January 20. This has made for some poignant moments, however, as the sitting Vice Presidents Nixon and Gore presided over the session announcing their defeats. Humphrey absented himself while only George H.W. Bush was there in triumph. Gore made some interesting rulings on efforts to object to the Florida electoral votes. The process is discussed in detail in “Counting Electoral Votes; An Overview of Procedures at the Joint Session, Including Objections by Members of Congress.”

There are detailed statutory procedures for the session. The only one I discuss here is the process of objecting to any of the votes received. Any objection must be made in a writing signed by at least one Senator and one Representative. Each house must meet separately to decide on any objection. Only if both Houses agree, does an objection prevent the vote from being cast and counted. An alternative is not substituted. The vote is simply not counted. It is still an open question whether the majority of electors necessary to elect a President is a majority of all electoral votes or just the votes counted.

Finally, there is a plausible scenario this year in which President Trump and former Vice President Biden each receive exactly 270 votes. If that were the final result, the President would be elected by the House of Representatives but with each state having one vote. The Democrats currently have a large majority in the House of Representatives but the Republicans would have a majority of state delegations, if each state cast only a single vote. The vote would be taken, however, in the newly elected Congress.

One Comment Add yours

  1. dudleye says:

    Good grief!! I need more whiskey and time to think about this epistle…

    Dudley

    >

    Like

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