US election: get ready for a constitutional crisis
(Photo by Chip Somodevilla/Getty Images)
Donald Trump stood in the East Room of the White House in the early hours of this morning, banks of televisions tuned to Fox News, giddy, maskless supporters high-fiving and hugging, and declared victory in the 2020 presidential election, demanding that states still counting votes (and that’s most of them) quit while he’s ahead. Otherwise, this election will be “a fraud on the American people.” If states don’t stop counting, he’ll “go to the Supreme Court.”
The Biden campaign called Trump’s remarks “outrageous” and “a naked attempt to take away the democratic rights of American citizens.” But no matter what the president says, he hasn’t won — not yet. The election is not over. Georgia, North Carolina, Nevada, as well as Michigan, Wisconsin and Pennsylvania, the three “Rust Belt” states which handed him a narrow victory in 2016, are either too close to call or, in some cases, just beginning to tabulate mail-in and absentee ballots. There is no evidence of fraud. And even in the current debased state of American democracy, a president doesn’t simply “go to the Supreme Court” in the expectation that his hand-picked justices would ignore due process and, without evidence, hand him another four years in office.
This election is closer than the pollsters, the pundits, and the people constantly aghast at Trump’s incompetence, viciousness and power-mongering, thought it would be. Looks like there were a lot of “shy” Trump voters after all: white people who think a property developer-turned-reality television star knows more about Covid-19 than the epidemiologists, and who fear the America which is becoming browner, more secular, and more adamant about issues such as climate change.
Democrats had hoped that four years of Trumpian drama would inspire voters to expand their majority in the House of Representatives and help them regain the majority in the senate. As of now, it looks as though the Democrats will retain control of the House of Representatives, though they failed to pick up some seats they had targeted. They lost a senator in Alabama, but gained one, former astronaut Mark Kelly, in Arizona. Other senate races in Maine, North Carolina and Georgia, remain too close to call.
A day ago, it looked as though Florida might go for Biden. The Democrats spent a lot of money on advertising in the state. Yet despite relatively high voter turnout in the Democratic counties of Broward, Palm Beach and Miami-Dade, a surge of Latino voters in South Florida apparently decided that Barack Obama’s former vice-president is some kind of crypto-communist hell-bent on transforming the US into Venezuela Lite. Their votes, along with the usual right-wing retirees who love the flag and hate taxes, delivered the state for the Republicans by an even larger margin than in 2016.
The nostalgists amongst us almost hoped for a reprise of 2000 when Florida was the center of the political universe, dangling chads and all. This time, however, the honour of being known as the state that can’t count or won’t count all the votes may well go to Georgia. Or Wisconsin. Or Pennsylvania. It’s too early to tell, because the uncertainty could go on for days. Weeks, even. Many states don’t have to certify their elections until the end of November or early December. There will indeed be court battles. Republicans have already filed several lawsuits in Pennsylvania, which doesn’t even begin counting absentee ballots until election day. There will cock-ups: a vote-tabulating machine in Green Bay, Wisconsin ran out of ink. There will be votes gone AWOL. Late in the afternoon on Election Day, a federal judge ordered that the USPS conduct a “sweep” of various mail processing facilities to locate more than 300,000 missing ballots, potentially enough to affect a state’s electoral outcome. The USPS declined.
Biden maintains a large lead in the popular vote: not quite three million at this moment. But American presidents aren’t elected by popular vote. They must win 270 + Electoral College votes. At the moment, Biden holds a slight advantage. Biden would only have to win two of the three Midwestern states in order to claim victory. But that would almost certainly draw a frenzy of court challenges from Trump as he insists that any votes counted after Election Day are somehow invalid. This is, of course, bogus: in states which do not allow the counting of absentee ballots before election day, legitimately cast ballots have always been totted up in the days afterward.
Trump’s lawyers know this, even if Trump himself cannot countenance losing. He will fight every step of the way and may, even if the counts and the courts rebuff him, never concede, casting the country into a constitutional crisis, testing American institutions like never before.
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