Can Biden v Trump Become Bush v Gore?

The election of our lifetimes is only a few hours away, oddly, everyone I know has already voted.

Up early, as usual, check my phone, 42 degrees and that squiggly line – gusty winds. Pull on my cold weather clothing, balaclava, and compression pants and off on my morning bike ride. Eddies of leaves swirling across the roads, a howling wind, part of the sky blue with billowing clouds, the other part with low swirling gray clouds; God (he/she) has a wry sense of humor.

I pedal along deserted roads; the Biden-Harris signs greatly outnumber the Trump signs: does signage predict election outcomes?  A few drops of rain splash across my face, I pedal harder, no pain, no gain, sort of a motto of life, I’m philosophical as I race along, carefully, on shoulder of the road.

The General Store is empty; I pull up my face mask, a steaming cup of black coffee and a banana, my standard breakfast. I sit outside, sip my coffee and nibble the banana, scroll through my phone, and, read Nate Silver’s Upbeat in the New York Times. 

Four years ago Silver’s column, closely following the polls and predicting the odds; Clinton was leading, until James Comey announced he was re-opening the e-mail investigation; with two weeks to go the race began to narrow. I blogged about the contradictory polls (read here): sadly, I was prescient.

The pollster’s motto: never having to say we’re certain, is troubling, and a reality. Polling is a science, an art, and an entrepreneurial business.  A poll is a photograph is likely voters at a moment in time: how do you identify “likely voters,” and how do you contact them?  We used to teach that polling is dependent on a “stratified, random sample” of “prime voters,” polls want quick results; they have created dense mathematical algorithms that increase margins of error. Today, Nate Silver writes,

What Trump needs to win:

A polling error much bigger than 2016’s.

President Trump’s surprising victory in 2016 gave him an aura of political invincibility. But he’s in a far bigger predicament now than the one he faced heading into Election Day in 2016. The polls show Joe Biden with a far more significant lead than the one held by Hillary Clinton, and many of the likeliest explanations for the polling misfire do not appear to be in play today.

Exploring Electoral College Outcomes

Electoral votes counting only the states where a candidate leads by 3 or more:

291 Biden     125 Trump

Electoral votes if polling leads translate perfectly to results (they won’t):

351 Biden     187 Trump

Electoral votes if state polls are as wrong as they were in 2016:

335 Biden     203 Trump

What no one knows is how the counting of mail-in ballots, which in many states will take days, might be impacted by legal challenges.

SCOTUS, as recently as October, has invoked the Purcell Principle,

Under the Purcell principle, courts should not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election.

Justices Kavanaugh and Roberts joining the three liberal justices, referencing the Purcell Principle, turned back an attempt impose Voter ID restrictions.

The question of the counting of ballots, especially in an election in which 90 million voters voted early in-person or by mail, will likely be challenged by Trump; the majority of early voters are democrats. Laws vary widely from state to state, in some states mail in ballots are prepared to be counted as they are received, in others the ballots await the closing of polls, in others states votes postmarked before the closing of polls and received afterwards will be counted.

The only SCOTUS case law is Bush v Gore.

We all remember 2000, the Florida Supreme Court ordered a recount and SCOTUS, and in a 5-4 decision overturned the Florida courts, effectively ending the election.

The Court in Bush v Gore made it abundantly clear,

“Our consideration is limited to the present circumstances,” the majority wrote. In other words: The decision was a ticket for one ride only, handing the presidency to George W. Bush and then disappearing. In the two decades that followed, only a single Supreme Court opinion ever cited the case, and that was a passing reference in a footnote to a 2013 dissent from Justice Clarence Thomas.

Is the conservative majority on the Court, once again, opening the door to intervening in the counting of the votes?

In a footnote to an October decision, Justice Kavanaugh addressed a different question, one not before the court. Citing Bush v. Gore, he said federal courts do have a role to play in supervising state courts in some election disputes.

As Chief Justice Rehnquist persuasively explained in Bush v. Gore,” Justice Kavanaugh wrote, referring to a concurring opinion in that case, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

Nathaniel Persily, a law professor opines. “What that presages for post election litigation this year is that in the event there is conflict with state courts and state legislatures, there are several justices on the Supreme Court who are leaning toward the legislatures.”  Republican governors and Republican legislatures can “seize” and try and manipulate the post-election count.

Stalling the count could result in preventing the Congress from “counting” the electoral votes and declaring a winner, and the relevant legislation, the Electoral Count Act of 1887 is obtuse.

One hand I am buoyed by Nate Silver’s Upshot predictions; however, I am a Mets, Jets, Knicks fan, forever hopeful and with that gray cloud always hovering.

I’m planning my victory party, maybe not Tuesday night, maybe a few days later, socially distancing, wearing a face mask, takeout Chinese and a fine adult beverage.

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