US Presidential Election map

US Presidential Election: chaos, confusion, litigation and… whatever

The Trump Presidency has been like no other, and as we observe the agony of the election count it is entirely in keeping with the last four years. It feels like a third-world election being played out in one of the great democracies of the world; the only problem being the question of which iteration of that scenario is actually true. There may be elements of two different scenarios, and which one you buy into may be largely subjective.

Regular readers of this blog will have heard me argue that often the most bitter disputes are those where both sides have a point, and so we may find here; not that you would know if you relied upon the UK media, who seem for the most part to be following the US example, having lost objectivity and intellectual curiosity, and fallen into a partisanship that would have appalled the giants of the past. The words of former Guardian editor CP Scott ring as true today as they did in 1921: “Facts are sacred; comment is free.” So what are the facts?

Well, plainly the USA is currently a deeply divided society. It is close to a 50:50 split, which gives both sides a populist claim to the moral high ground. Historically high levels of support for both candidates establish a level of confidence in the rightness of their respective causes. The BBC reports that Joe Biden has received “the most votes in US history”. That may be true. It is also true that Donald Trump has recorded the second-highest number – higher than the mandate secured by Barack Obama.

The man portrayed by his opponents and the media as a racist divider has secured historically high proportions of support for his party from black voters, Hispanic voters, Jewish voters, and Muslim voters. To a very high degree, these are voters who showed up at the polls and waited patiently in line, some for many hours. Whatever happens, this reinforcement of the Republican Party’s claim to be the party for all has been reinforced. Those who reach for the ‘racist’ epithet might consider that it was the party of Lincoln and Trump that passed all the legislation and constitutional amendments which gave excluded minorities access to the ballot box, and that it was principally Democrat politicians and their street army (the KKK) that opposed them.

Enforcing electoral law is not an ignoble enterprise. It is not that hard either. It is striking that in the vast majority of the 50-State-wide contests, uncontroversial elections have been conducted in an orderly and timely manner to the benefit of all concerned. These include not only small states, but the three largest: California, Texas and New York. It also includes two of the big swing states which historically decide who the President shall be: Florida and Ohio. Both have Republican governors and administrations.

In many of the states which are currently delayed and problematic, with the exception of Arizona they have Democratic governors and administrators who seem intent on compounding the electoral chaos, either by legislation or organisation. Whatever the outcome, they have let the USA down. In countries across the world, rich and poor, election night usually sees all the ballots in and counted within hours. In the UK, Sunderland defends its crown as the fastest counting authority against competition from Newcastle and Billericay. It is the dispersed Scottish Islands who tend to declare later.

In the US election it is rural areas like Alaska and Montana that manage timely management of electoral affairs, while for some unexplained reason it is in the major cities where the postal service and election officials cannot manage the timely delivery of ballots to the counting house from the adjacent borough. In these contested states it is the in-person votes that are counted first, and then, once that ‘target number’ is roughly known, the postal ballots are hauled in.

“Count all the votes,” chant protestors. “Count all lawful votes,” say the Trump supporters. A lawful vote is surely one issued on official voting forms, correctly completed, delivered (NB not sent) on time, and counted lawfully under independent scrutiny, all in accordance with laws passed by the State legislatures, so that the integrity of the electoral process can be respected by all. When this occurs, democracy occurs; the dignity of opponents is affirmed, and peace after contest is restored.

While this is happening, a free press should be jealously guarding due process, scrutinising all candidates with rigour, and being constantly mindful that due process must be upheld. Plainly the free press has been the first casualty of the culture war. The mass media has become partisan en masse. Whatever one thinks of the President (and half the people seem to love and/or respect him) it is both extraordinary and shameful that for weeks legitimate questions about Joe Biden’s probity in office were left un-examined by the mainstream media; his avoidance of the press was unremarked. This is unprecedented and undesirable. The fourth estate not only went missing in action but began censoring the President and his supporters. The lack of a free press is the hallmark of anti-democracy. This has all fed into the feeding frenzy of those insisting that the election has been stolen by the Establishment.

“Where is the evidence of electoral fraud?” is a legitimate question, but how is that evidence to be collated if the social media takes down all assertions of impropriety? One doesn’t want to foment discontent or undermine the democratic process, but equally the suppression of legitimate concerns is pretty Mugabe-esque too.

There is one identified irregularity which does seem substantial and likely to require Supreme Court determination.

In a nutshell, Pennsylvania legislators introduced postal voting with clear and unambiguous parameters to protect the integrity of process. Postal votes can only be counted if they arrive on Election Day. More specifically, the law had a lock on integrity placed by the legislators. The lawfulness of postal voting was predicated on all requirements being met. The clauses of the State stand together and are specifically “non-severable” (ie if a provision is broken, the whole lawfulness of postal ballots falls). It was supposed to prevent shenanigans.

However, there was a bulk delivery of postal votes the day after the Election. This is not in dispute. They should have been disqualified, but haven’t been. Pennsylvania electoral law is clear, and is supported by leading US constitutional expert Alan Dershowitz, whose video explanation makes clear that whilst he does not like or agree with the Pennsylvania law, it is the governing regime for elections in that State.

Why those votes could not have been posted days or weeks before is an interesting point. Why would three quarters of a million people, most of whom would have made their minds up weeks or months before, have waited so late to post their votes? It makes little obvious sense. We are enjoined in the UK to ‘Post early for Christmas’. If the postal ballots were in post office custody, why not deliver them early on Election Day?

According to Dershowitz the Supreme Court is likely to uphold that reading. It is simply put. It is not the job of Judges to make electoral law. If you do not like such law, you change the legislators.

Now, whether this proves necessary to litigate or decisive remains to be seen. Pennsylvania may be a legal outlier. However, other irregularities may also be presented from other states, and it is not improper to require the law to be impartially invoked. Presenting a case is not indicative of fascistic tendencies, but rather an expression of the age-old question of whether the rule of law should be upheld.

“Count every vote” is attractive but deceptively simplistic. In soccer you count every goal scored in accordance with the rules until the whistle blows. There is no other way to play the game. It is no different in elections. So, regardless of who declares (themselves) the winner, it may not be the case until these problems are resolved in the Supreme Court. The first task of the winner should then be to engage all parties to clean up US voting laws and practices so that this chaos can never be repeated.