In every election, especially presidential elections, the nation experiences a complex jolt of emotions. We are not of one mind regarding the outcome, obviously. There have been elections in my lifetime where the results were so one-sided and determinant that almost everyone accepted the results, 1974, 1984 and even 2008 come to mind. In most other elections the contests were close, awfully close, and the losing parties were not willing to accept the results, 2000, 2016, and now 2020 illustrate the point. Disappointment is understandable, but denial is neither healthy nor constructive. Every president-elect calls for national acceptance of the results and pledges to represent all of the people. Because there are always differences of opinion about policy issues, calls for unity represent some utopian delusion. No political party ever changes its positions on important issues when their opponents assume the presidency.
Today, November 9, 2020, a week after election day, the vote totals are incomplete or inconclusive in six states where the count makes a difference including Arizona, Georgia, Nevada, Wisconsin, Pennsylvania, and North Carolina. Five of these states lean toward the Biden/Harris ticket. One state appears to favor the Trump/Pence ticket. Recounting, rescanning, auditing, and recanvasing continues in these and other states with a December 8th deadline to complete this phase of the election. The Electors of each state vote on December 14, in accordance with Article II, Section 1, Clause 4 of the U.S. Constitution. The results are submitted to a joint session of Congress in early January presided over by the incumbent Vice President. If at least 270 electoral votes are cast for one candidate, the Congress certifies the vote, and the president-elect is determined and inaugurated on January 20, at noon. Until the Congress certifies the electoral vote, the apparent winner is nothing more than the apparent winner. The news media plays no official role other than to sway public opinion one way or another as their editorial preferences dictate. Declaring one candidate to be the winner before the election is settled is irresponsible in the extreme.
Allegations of election irregularities occur in every election. That was certainly true in 2000 which required 5 weeks of court battles to resolve. No one declared victory until the count in Florida was final. In 2016, the Clinton and Stein campaigns alleged irregularities in Wisconsin, Michigan, and Pennsylvania. The final results and the overall outcome were not clear for a considerable time following election day. There were even faithless electors who chose to vote or not vote contrary to their legislative requirements.
This 2020 election may be the most contested since 1824 when the House of Representatives chose the president by the contingent election procedure described in Article II, Section 1, Clause 3 and modified in the Twelfth Amendment of the Constitution. It appears that Joe Biden and Kamala Harris will ultimately win this election, but several states need to complete their work and for the courts to issue their rulings before the electors vote in December.
This election is complicated by several states changing their election procedures, some unconstitutionally. Article II, Section 1, Clause 2 assigns responsibility for election laws “in such manner as the legislature thereof may direct,” and no governor, state or federal court, or anyone else can change those laws. Clearly, the Pennsylvania Governor and the Pennsylvania Supreme Court violated the U.S. Constitution when they ordered and approved actions contrary to their own state laws without legislative approval. This is a problem that the U.S. Supreme Court will consider in the coming days. It may be remedied by the Pennsylvania legislature which has the ultimate authority to select electors regardless of what governors and courts may decide. No conceivable outcome of the Pennsylvania presidential election would give Trump enough electoral votes to win the election. He would need to win electors in at least two additional states, such as Georgia, Arizona, and Nevada as well. The president-elect is not known, until all of these issues are resolved.
The justifications for changes in the 2020 election laws and procedures include the current pandemic causing many people to avoid gatherings such as might occur in crowded voting facilities on election day. The changes allowed millions of voters to submit ballots by U.S. mail or to drop off ballots at designated containers and facilities prior to or on election day. Late arriving ballots were accepted in some states and precincts, but not others. The state and federal courts issued conflicting rulings in different states leading to confusion and distrust. Additionally, election observers from each political party are required in all states to ensure the final vote count is trusted and accepted by most reasonable people. Unfortunately, observers were not allowed in some precincts where the votes matter significantly. The processing of ballots sent through the mail or dropped off at various locations requires additional procedures to assure a chain of custody is known. It is important to know who voted and that they voted only once. Checking this requires time and verification.
Even if blatant fraud and illegal ballots were counted in some states, there does not appear to be enough evidence to overcome the voting advantage. Of the five states leaning toward the Biden/Harris election, Pennsylvania, Georgia, and one other state would need to flip to Trump to give him enough electoral votes to win the election. This assumes that Trump will win in North Carolina, which is not final as of today.
Trump Versus Biden
It has been said by more than one pundit that the 2020 presidential election was a contest between those who love President Trump and those who hate him. This is undoubtedly part of the story. Many other voters prefer the policy ambitions and judicial appointments of the Democrat Party or the Republican Party and were less interested in the personality and character of the candidates. Still others are obsessed with power and invest millions and even billions of dollars to influence the election for their purposes. And finally, we have the uninformed voters who do what their told by others who tell them how to vote. Hopefully, this last group washes as random noise in the process. We can also hope the supporters of the winning ticket will be gracious in victory and work to represent the interests of all the people of our great country. We can also hope those who are disappointed will accept the final results and continue to make their case for policy direction in a constructive manner.
The News Media and Big Tech
The First Amendment guarantees freedom of the press. It’s a vital guarantee, but freedom also requires responsibility and accountability. Because of modern technology, the press is very different than it was 20 or 100 years ago. News outlets have always chosen sides in political contests. This is true going back to the time of the American Revolution. Differences of opinion exist and should exist, but censoring, silencing, and distorting of information is propagandizing of the most dangerous kind.
When an internet platform chooses to block opinions they don’t like, they are exercising editorial control and cease to be a neutral platform. When a president has the ability to communicate with millions of constituents on that platform and is blocked, censored, or criticized, that is editorial control by a private corporation. That is allowed under our Constitution, but they should not be exempt from the liability consequences faced by the traditional newspapers, magazines, radio, and television. Editorial bias isn’t the problem. It’s a feature of human nature, and it is remedied by competition. Twitter chooses to editorialize on the utterances of a president, Parler does not and gains customers as a result.
When news corporations on television or any other communications platform lie to the public, leave out important information the public needs, and provide favored treatment to one candidate over another. That is their exercise of freedom of the press. It’s not illegal, but it can be propaganda if it is intended to mislead or sway the public. And it is irresponsible. Again, competition should be the remedy for this. Sources of news that turn out to be dishonest will lose their audiences. News consumers will turn to other sources that are more trustworthy. I’m seeing lots of journalistic malpractice.
The Long-Term Outlook
Presidents come and go. The nation continues on. In a decade, Trump and Biden will be fading memories. While the Trump supporters are troubled by this apparent loss, they should realize that a Biden victory probably increases their chances of taking back the White House in 2024, assuming the U.S. Senate remains in control of the Republican Party. If history repeats, Republicans may also increase their numbers in the House and Senate in 2022. This is the way it usually goes. However, if the Senate is flipped to the Democrats this year because both Georgia U.S. Senate races are won by Democrats in the January Runoff, then much can change. Democrats have discussed adding two additional states with four new senators and also adding additional seats on the U.S. Supreme Court. This would increase their likelihood of winning future presidential elections and interpreting laws consistent with their partisan interests. The Republicans will strongly oppose such actions.
Our constitutional republic is blessed with good people who may disagree with each other, even vehemently. Open dialogue free of censorship and propaganda offers us an opportunity to learn and evolve toward a better society. Our national journey can be bumpy, but it is a long road with much to offer in the years ahead.