Sunday, November 8, 2020

Down to the Brass Tacks

Now that Election Day has passed, your Curmudgeon feels free to comment on the current mess, since all the usual suspects have shown their cards and taken their predictable stances on the very predictable result of the Presidential race. (Hint: thanks to the looseness of "mail-in balloting" as allowed by multiple States, abetted by an imaginary COVID-19 factor, the result as I write is inconclusive.) 

Notwithstanding the differing State results that are in dispute, the Democrats and their captive media have "called" the election in favor of their candidate, even though there can be no confirmed "President-Elect" until the next Congress (the 117th in our history) meets on January 6, 2021 to tally the votes from the Electoral College as certified by the governors of the respective States. And even then, it may still not be possible to declare that Candidate A or Candidate B is the definitive President-Elect of the United States. 

By Congressional statute (3 U.S.C. § 7), enacted pursuant to Article II, Sec. 1, cl. 5 of the Constitution, the Monday after the second Wednesday in December of a given Presidential election year has been specified as the date on which all State electors are to meet in their respective State capitals and cast their ballots for both President and Vice President. In 2020, that date falls on December 14.

Normally, the electors for any given State are those persons who (first) have been nominated beforehand by a registered political party or independent candidate within that State (or Congressional district), and then (second) who have the fortune to have their Presidential candidate receive the highest number of votes cast in that State (or district) in the November election. But when is it determined that a given Presidential candidate has received the requisite highest number of votes?

Ay, there's the rub. Again normally, the vote tallies in the various counties and districts of the State are completed within a day or two of Election Day, and are clear enough so that there can be no dispute about which candidate got the most votes. But occasionally, as happened in the Presidential election of 1876, and as almost happened in the Presidential election of 2000, there were disputes about which candidate prevailed in various States, so that the slate of electors entitled to cast votes for their respective candidate was rendered uncertain. The Constitution specifies that in such cases, as well as in any case where no candidate receives a majority of the Electoral College votes, the final selection of the President goes to the newly elected US House of Representatives, and the selection of the Vice President goes to the newly elected Senate.

As regards the election results in Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada, we are witnessing a repeat of what happened in Florida in 2000.  You may recall that the then Democratic Party candidate Al Gore contested the official count in certain counties of that State in favor of the Republican Party's George W. Bush. Gore, however, was under a deadline to have the recounts he requested resolved in his favor before the Florida Secretary of State certified the official count to the Governor, who would then sign the certificates attesting selection of the Republican slate of electors to the Electoral College.

Again, Congress has legislated what happens when there is a dispute in any given State over its proper slate of electors. Section 5 of Title 3, U. S. Code, provides that if election results are contested in any state, and if the state, prior to election day, has enacted "procedures to settle controversies or contests over electors and electoral votes", and if these procedures have been applied, and the results have been determined six days before the electors’ meetings, then these results are considered to be conclusive. Six days before the prescribed meeting of the Electoral College on December 14 of this year falls on December 8. (The date is referred to as "Safe Harbor Day", because the statute makes any resolution of election disputes reached by that date presumptively conclusive, i.e., not subject to further contest.)

Thus the various contests filed by the Trump campaign in the respective States will have to have been resolved ("determined") on or before December 8, 2020 in order to have those results apply to the Electoral College vote.  Here again, however, the federal nature of our Union kicks in.  For while it probably will not be practical to have all contests in all disputed States determined in the courts by December 8, it may suffice for one such dispute to have been finally determined at the highest possible level by that date, if that determination is definitively made by the United States Supreme Court (SCOTUS), and if it fairly applies in the other cases, as well. That is because, under our federal system, the rulings of SCOTUS on federal law are automatically binding on all lower courts, both federal and State.

The case that currently is most advanced on the calendar for SCOTUS review is one brought by the Republican Party of Pennsylvania against Secretary of State Kathy Boockvar, which challenges the decision by a unanimous Pennsylvania Supreme Court to (1) extend the statutory deadline for receipt of all mail-in and personal ballots by three days after the legislated deadline of 8 p.m. on November 3; and (2) require the various election boards to include in their counts any ballots received by the extended deadline which could not definitively be shown to have been mailed after November 3 (i.e., ballots in envelopes bearing blurred postmarks, or even no postmarks at all). This ruling, be it noted, shifted the burden of proof from the individual voter to the given elections board to establish that a ballot was not sent in by the statutory deadline -- and why would a Democratic-majority elections board try to prove that a ballot for their candidate had not been sent in on time? 

In that case before SCOTUS, Justice Alito issued an order requiring segregation of all late ballots pending action on the petition for review by the full court. The Court could issue a further order in the case as early as tomorrow, or on any day this week. And whatever the Court decides will provide the best indication of whether that case will become the vehicle for resolving the disputes in other States besides Pennsylvania (to the extent those disputes involve State courts or officials changing or acting contrary to State law).

As is usual with legal matters, the issues involved are quite technical, and turn on just what relief a party has requested, and what the view of a majority of the Justices is as to whether that (or other) relief can be granted in the context of the case. Here is one very strong summary of the issues for the Republican petitioners, and here is another informed view that calls into question whether SCOTUS will grant any definitive relief.  In the words of my previous post, "you pays your money and you takes your choice."

If there is one saving grace amidst all of this confusion, it is that our Constitution again speaks quite clearly as to who has the definitive say about a State's choice of electors to the Electoral College. Here is the language of Article II, Section 1, clause 2, which has been with us since the original document was ratified in 1789 (with my bold emphasis added):
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Thus if the various State and federal courts prove inadequate to the task of resolving the election disputes in each contested State before the Safe Harbor day of December 8, the Legislatures of those States are empowered to step in and resolve the disputes by designating their own slates of electors. And it has not gone unnoticed that of the disputed States (Pennsylvania, North Carolina, Georgia, Michigan, Wisconsin, Arizona and Nevada), all but Georgia and Arizona have Democratic governors, as well as Democratic Secretaries of State, and Democratic election officials, while they each (except for Nevada) have legislatures in which both houses have Republican majorities.  

The question thus becomes: if the proceedings to challenge the election results in each of those States become bogged down while the various courts flounder amidst all the technicalities of intervening in a given State election, will the Legislatures of those States have the gumption to exercise their Constitutional power to resolve those disputes definitively, in time for the final vote of electors by December 14? On the answer to that question depends who will be President on Inauguration Day, January 20, 2021.

A few more observations may be in order. 
  • First, the blame for the current election mess must be laid squarely at the feet of the Democrats. Only they pushed to change the rules to allow mail-in voting, ballot harvesting, no requirements for voter ID or prior registration, extended periods for both early and late voting, and similar loose measures intended to generate possibilities for manipulation. 

  • Second, the rush to "call" a winner of the 2020 election has been driven by the major news networks, who are unanimously biased against President Trump. But the media have no power under the Constitution to declare anyone as "President-Elect". That title may be bestowed only upon the winner in the Electoral College vote of December 18, or if not there, then upon the candidate selected by the new House of Representatives that convenes on January 6, 2021. 

  • Third, if the choice ultimately goes to the new House, the vote for President will not be by a majority of its individual members, but (again as specified in the Twelfth Amendment) by the collective delegations for each State in the House, with each delegation having a single vote. As of the latest results for the 435 House elections, Republicans on January 6 will control 26 of the State delegations, and will thus have a majority of the 50 delegations so voting. 

In summary, what happens between now and January 20, 2021 is pretty much up to the Republican legislators elected to Congress and to their various State legislatures. 

Thank you for bearing with me to the end of this post. I have done my best to state only facts, and not opinions, except where I ascribe what I regard as justified blame for the current uncertainty. You of course are free to disagree; I ask only that you be civil in the comments.