US 2020 Elections: It Ain’t Over Till the Fat Congress Sings, and even then…
Previously published on A-Citizen.com
It’s widely reported that the US election process is done and dusted, but there continue to be stubborn allegations of election fraud, as well as Republican agitation around 6 January 2021 — the date when Congress is slated to count the electoral votes. A growing number of Republican legislators are angling towards a daring move of objecting to the electoral votes cast for Joe Biden in favour of the sitting president. A popular Republican Senator, Josh Hawley, just announced he will also be challenging the certification, highlighting the seriousness of the effort.
Given Donald Trump’s first term, and the bitterly polarised political environment, it seemed the stakes could not have been higher for both sides — the election was often touted as a ‘fight for the soul of the country’. Veteran politician Joe Biden emerged as the Democratic nominee, following a primary contest with a mind-boggling number of candidates. Whilst Donald Trump continued his signature rallies across the country, Biden for the most part laid low, perhaps a strategy based on his own shaky performances, or rather, wishful thinking that Trump could be enough of a hazard to himself — indeed, many framed the election as a referendum on Trump.
Having inherited an unhealthy interest in US politics, it was entertaining to alternate between live streams of CNN and Fox News on election night, and watch the sharp mood changes depending on who appeared to have the edge at a given moment. It had always been expected that Biden would have a significantly larger proportion of votes by mail, yet onlookers waited with bated breath when, early in the morning with Trump leading by quite a margin, a number of crucial swing states dramatically stopped counting. When they each resumed their tally of the votes, which we were informed consisted mostly of mail-in votes, the majority went to Biden and by the next morning, he emerged as the victor.
Trump and his supporters cried fraud, a claim uniformly branded by the media as baseless, and by the political class as threatening to the very fabric of the US democracy. And they are right — if a significant proportion of the electorate believe their votes do not count, this can only result in a complete breakdown of trust in the social contract and institutions. According to a much-cited poll by Rasmussen (if we still have faith in polls), 47% of Americans suspect the election to be fraudulent, rising to as high as 62% of Republican voters, 28% of independents and even 17% of Democrat voters. Another poll carried out by the established Quinnipiac polling centre, paints a much more polarised picture, with 35% of independents, 77% of Republicans and just 3% of Democrats believing there was widespread fraud.
Nothing to see here!
A lot has happened since November 3rd and to put it mildly, it has been alarming to see the complete lack of journalistic curiosity, in what many perceive to be a tainted election. Meanwhile, Youtube has effectively gagged any discussion of widespread election fraud on its platform. It is a disturbing precedent to set in the world’s leading democracy, which although not perfect, still sets the tone for what is acceptable elsewhere whether we care to admit to it or not. There have been jokes, by South American and African onlookers, welcoming the US to the league of past and current banana republics. The stopping and starting of vote counting at pivotal moments is an old classic.
A large number of witnesses, including election officials, poll observers, post-office workers and statisticians, have signed affidavits — on injury of perjury — attesting to misconduct in the handling of the election. Audits of the voting machines have also been ordered, following a glitch in Michigan that erroneously awarded a county to Biden, before it was discovered Trump had won it by a significant margin. Whilst the mistake was later explained as due to human error, these audits have been opposed and resisted in court, in Michigan and Arizona for example, raising questions as to what there might be to hide. One such audit report pointing to issues, was eventually released, to very little fanfare but instead questions around the expert’s credibility.
Then there are the largely ignored election integrity hearings, typically newsworthy events, that have been televised by only a handful of burgeoning news channels. In them, witnesses have provided concerning testimonies before state legislatures in the key swing states of Arizona, Pennsylvania, Michigan, Georgia and Wisconsin, as well as Colorado. Of course, these hearings were only possible due to the Republican majority in those states’ legislatures, giving rise to inevitable accusations of partisanship by the losing party, irrespective of the merit there might have been in holding them.
More recently, Republican Senator and Chair of the Homeland Security Committee, Ron Johnson, called a senate hearing on “Election Security and Administration”, that is worth watching. It was also attended by Christopher Krebs, the former head of the US agency CISA (charged with the country’s cybersecurity), who was famously fired by Trump via Twitter, after he contradicted his boss by claiming the 2020 election was “the most secure in American history”. In the hearing, a confident Krebs clarified that he had been referring to security in relation to foreign intervention, rather than domestic fraud. Since then a cyber breach of monumental proportions, affecting a number of key US agencies from the Department of Defense to the Treasury, has been uncovered — it is believed to have started in March of this year, suggesting that Krebs was not as up to speed on security as he might have thought.
The Courts — Dead Ends and a Texas Wild Card
In the midst of all this, Trump’s side has racked up a high number of losses in the courts — a handful by the official Trump legal team and many, many more by others who have also sought to challenge the election. Trump’s legal efforts have largely been spearheaded by former New York mayor, Rudy Guiliani and constitutional lawyer Jenna Ellis. Two other known lawyers, Texan Sidney Powell (formerly part of the Trump team) and Lin Wood from Georgia, have also emerged as controversial, colourful characters in the saga. They have carried out joint legal/Twitter campaigns, with a number of their own cases having reached the Supreme Court — some accepted, some dismissed, but none yet heard. An interesting feat, considering that established law firms in the US have been dissuaded from representing Trump, with two having abruptly withdrawn from ongoing cases.
In almost all of the concluded cases, judges have issued scathing, disparaging opinions but curiously, almost none of them have proceeded to a hearing of the evidence, with the reported exception of a Nevada judge. Instead, they have routinely dismissed the cases before that stage for procedural reasons — for example, on the basis of a lack of legal standing to bring the cases, or quite often due to timing, asserting that the cases had been brought too late and would disenfranchise thousands who have already cast their votes. It seems the applicants are often either too early or too late, and the larger message is clear — the courts do not want to be involved in the electoral process.
Perhaps wanting to force the issue, the state of Texas dropped a bomb out of nowhere on December 8, bringing its own proceedings directly to the Supreme Court against the states of Pennsylvania, Georgia, Michigan and Wisconsin. Interestingly (and perhaps strategically), Texas relied on alleged breaches of constitutional law rather than fraud allegations. However, it still neatly summarised much of these other arguments in its complaint and as a result, it is probably the standalone document most representative of the allegations of election irregularities made by Trump, his allies and the witnesses that have come forward.
For any law nerds the case docket, which contains the history of the filing, is fascinating: 17 other Republican-run states swiftly submitted a brief in support of Texas, with 6 of them later requesting to officially join Texas in its suit. Meanwhile, over 20 Democrat-leaning states went on to file their own submissions, in steadfast support of the defendant states. There were many other interesting interventions, too numerous to recount here.
In its main argument, Texas claimed that the accused states had violated the US Constitution’s Electors Clause, which says that state legislatures have the exclusive power to set the presidential election rules. A number of the defendant states had indeed changed election laws via their executive branches and/or state courts ahead of November 3rd, which Texas argued rendered those states’ elections more susceptible to manipulation. It claimed these changes, and the election irregularities resulting from them, had injured Texan voters, effectively diluting their votes in the election of a national president. To remedy this, Texas asked that the states at fault have their electoral votes discounted, or alternatively that new elections take place instead.
On 11 December, the Supreme Court Justices abruptly brought an end to what could have been the blockbuster case of, well maybe, ever. The Court chose not to hear the case at all, despite having ordered the defendant states to respond. It did so with the following brief order, worth including in its entirety:
“The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot. Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.”
Noticeably, conservative Justices Samuel Alito and Clarence Thomas would have permitted a hearing of the case, given their understanding of the constitutional concept of original jurisdiction: in their view, that means disputes between states must be heard by the Supreme Court and cannot be rejected. It has been debated whether the remaining Justices were actually correct not to hear the case, and interesting what precedent that sets for future cases. However, it was not the first time the Court refused to become involved in the 2020 elections, and was a clear signal they would not be the final arbiters of the dispute.
Whilst many at the time celebrated the fact that such an audacious claim had been tossed out, others have since come to see the decision as a dereliction of duty by the Supreme Court — on one hand, some Democrats believe the so-called evidence should have been heard and conclusively dismissed once and for all, whilst Trump supporters more obviously saw it as their best chance of having the election results remedied.
January 6 — Day of reckoning, or just hot air?
This election, like no other, has sparked an unprecedented level of public interest in constitutional law. In particular, there is the fact that some mechanisms permit electors to disregard the popular vote of their state altogether — something that has seldom occurred for obvious reasons. Nevertheless, this became the main focus of Trump’s legal team once it became evident they would have no luck with the courts.
The first of these mechanisms was easily survived by Biden, with each states’ electors casting their votes on December 14 in direct reflection of the popular vote. However, in a significant move, Republican electors in 7 states, including the key swing states, simultaneously cast their own alternative votes for Trump, in case there might be an avenue for them to be used on January 6.
According to the United States Code of federal law, on January 6 just one senator, together with one congressman may object to the results, giving way to a debate in Congress on who should be elected president. Trump supporters claim the Vice President, in his capacity as the President of the Senate, may pull the “Pence Card” — he may reject Biden’s electors in favour of Trump’s. The process is of course a little more complex than that, but it is still fascinating that such procedures exist, if only to ensure the election ends as dramatically as it started.
So far, senator-elect Tommy Tuberville of Alabama has also said he will challenge the results on the day, in addition to a growing number of Republican congressmen. Then on 28 December, Republican Congressman Louie Gohmert and others filed a perplexing lawsuit against Pence, to ensure that his constitutional power to choose alternate electors is unfettered on the day. This is all in defiance of the Senate Majority Leader, Republican Mitch McConnell, who has already acknowledged Joe Biden as the President-Elect.
Given the unrelenting rate of developments in just a matter of weeks, it’s not unreasonable to say there is plenty of time between now and January 6. In particular, will these individuals really take such a monumental step? No matter what happens, there is bound to be a significant group of deeply unhappy people, either way. Will the goal-post then shift to January 20th? We’ll all be watching this space…