For months President Trump has been denigrating absentee voting,
President Donald Trump insists there’s “NO WAY” an election with increased mail-in voting will be legitimate.
The president refused to endorse a “peaceful transfer of power, he said “…there would be no power transfer at all …You know that I’ve been complaining very strongly about the [mail-in] ballots, and the ballots are a disaster … get rid of the ballots and you’ll have a very peaceful election— there won’t be a transfer, frankly. There will be a continuation,”
Why is he so opposed to “mail-in” voting?
Predictions suggest that the November turn-out could be a once in a century event, “ a new Pew Research Center survey released this week provides the most compelling evidence yet that turnout this November will be massive and that states will be challenged to complete timely counts of a record number of mail-in ballots.”
The President is calling on his voters to vote in person, and, it is possible that the in-person voters will be Trump voters and the “vote by mail” voters Biden voters.
On a normal election the polls close, let’s say at 9 pm, within a few hours the results are published, occasionally in a close election the results may not be known until the next day; however, with an enormous turn-out, and record breaking votes by mail the count could take days, or, in some instances even weeks.
On December 8th, the electors will cast their ballots.
Each state’s electors meet in their respective state capital on the first Monday after the second Wednesday of December to cast their votes. The results are counted by Congress, where they are tabulated in the first week of January before a joint meeting of the Senate and House of Representatives, presided over by the vice president, as president of the Senate.
Electors are selected by the candidates, Trump and Biden electors; the number of electors are the number of Representatives plus the two Senators, for example California has 55 electors and Montana 3 electors, with the exception of Maine and Nebraska, states are “winner-takes-all,” the winner of the popular vote get all the electoral votes. (In Maine and Nebraska the winner of the popular vote receives two electoral votes and the winners in each Congressional district get one electoral vote).
Trump’s campaign will claim the “votes-by-mail” are fraudulent and ask that they be excluded from any count, ask the courts to issue a “temporary restraining order” halting the count. States have wide discretion: they can issue the order pending a court hearing, continue the count and hold a hearing or dismiss the claim. The state court decision can be appealed into the federal courts; this is a federal election. We have a recent precedent: the 2000 Bush v Gore controversy.
In 2000 the election in Florida was extremely close, only a few hundred votes separated the candidates out of many millions of votes cast. The election was challenged in state courts and the Florida Supreme Court, by a 4-3 vote ordered a recount, the decision was appealed to the Supreme Court and SCOTUS overturned the decision of the Florida courts, by a 5-4 vote.
Read a detailed account of the controversy here
Justice Ginsburg, in her dissent in Bush v Gore wrote,
“The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which all agree. ‘The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.’
The Court assumes that time will not permit ‘orderly judicial review of any disputed matters that might arise.’ But no one has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.
Bush v Gore centered on should the Florida court decision ordering a recount be sustained or overturned, the reversal of the Florida court ended the count and gave the election to Bush.
The Trump attack on “mail-in voting” must show fraud, and fraud at a level that will impact the election. The “fraudulent” votes must exceed the difference between the candidates, in other words, potentially change the outcome of the election
For sake of argument lets say the dispute continues into January without resolution, the Constitution provides a remedy, a venue that Trump seeks.
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.
The Electors shall meet in their respective States, and vote by Ballot … And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chose the President. But in chosing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chose from them by Ballot the Vice President.
California would have one vote and Montana would have one vote.
To further complicate the situation “mail-in” ballots are also cast for Representatives and Senators; if the courts prohibit a counting of ballots in some states, or, all states, many seats in the Congress will not be occupied. Terms expire for all Representatives and a third of the Senators at the end of the year, one could argue that although their term has expired, no one has been “elected” to replace them, they remain in office.
The Constitution requires A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice, the Democrats could refuse to provide a quorum preventing the House from convening.
A 6-3 or, a 5-4 conservative Supreme Court could decide to support the Trump claim, and invalidate all “mail-in” ballots, although I see no legal pathway considering fraudulent claims differ from state to state.
What happens if no president is selected by January 20th, the inauguration date set by the Constitution?
If no resolution is reached by January 20th Trump might hold an inauguration ceremony himself, and claim his re-election, or, simply argue he remains as president until a successor is selected through a constitutional process.
The 1876 presidential election was challenged by the Republicans, the results were very close in three states, and, the Republicans needed all three states to win. In 1876 the inauguration date was in March.
A backroom deal was brokered, the Republican candidate, Rutherford B Hayes, would become president in exchange for ending Reconstruction, federal troops removed from the former Confederate states beginning the reimposition of slavery by another name, the Jim Crow laws and a string of Supreme Court decisions removing rights guaranteed by the 13th, 14th and 15th Amendments. It took almost a hundred years to reclaim the rights, the Civil Rights movement of the 60’s, rights that are still being eroded today.
On the international scene with our nation in chaos the Russians could seize the Baltic states (Estonia, Latvia and Lithuania), China could occupy Hong Kong; on the domestic front millions upon millions demonstrating, widespread disruptions, Trump sending federal troops into cities to “keep the peace”; open conflicts between states and Washington.
Anger in the streets is nothing new.
In 1787 former Revolutionary War veterans, who were unpaid, marched on local courts to prevent the seizing of their land, called Shay’s Rebellion.
In 1932 World War 1 veterans were owed “bonuses” from serving during the war, Congress refused to authorize the bonuses and the veterans camped across the street from the White House, called the Bonus Army, they were forcibly evicted by the Army at the direction of President Hoover
Urban unrest in the 60’s (Los Angeles, Detroit, Newark) resulted in unparalleled violence, hundreds of deaths, cities burning, National Guards and tanks in the streets.
Can the Trump attack on “mail-in” ballots so disrupt the election that court decisions lead to the House selecting a president, or, a constitutional crisis and no president selected by January 20th?
Is this the beginning of a movie script or a prescient look into the future?
Listen to Leonard Cohen, “You Want It Darker,”