Analysis 11-12-2020


US Presidential Election Headed for Courts

Make no mistake about it, the US presidential election is a mess and both sides have claimed that they are on the road to victory. And reports of software problems have made it impossible to claim where this will end up – except in court.

Remember, no state has certified their election results.  Consequently, the only “results” are from media organizations, which give Biden 284 electoral votes and Trump 214.  However, that is not official and there are disagreements.  Just today, the political website Real Clear Politics has pulled back on their calls of Georgia, Arizona, and Pennsylvania (leaving Biden with only 259 electoral votes).

The gross vote count is about 74 million for Biden and 70 million for Trump.  However, that will change.

As a result, the General Services Administration (ordered by Trump) has ruled it will not send government funds for the Biden presidential transition until the Constitutional standards have been met.

One reason for the claims that the voting was fixed in Biden’s favor was the fact that Republicans did well in all the other races.

Much of the following data comes from the Cook Political Report, which has gathered more election results data than other groups

The US Senate control is critical as Democratic control would mean that the Democrats would have total control with the Senate, House, and Presidency (if Biden retains his lead).

Before the election, the Democrats were forecast by the major political analysts to win most seats in the Senate.  However, according to the Cook Political Report, every tossup seat has apparently gone Republican.  According to Democratic Senate Minority Leader, Democratic control of that chamber requires the difficult task of winning both Georgia Senate seats in January.

Democrats apparently took two Republican Senate seats in Colorado and Arizona. One unexpected GOP win was in Maine, which saw the reelection of Senator Collins, who was widely expected to lose.

Two seats are still undecided in Georgia, which requires a runoff in early January, which currently leaves the Republicans with 50 seats and the Democrats with 48.  Analysts give the Democrats a slim chance to gain both seats, which would give them a 50-50 split with a Democratic Vice President having the tie breaking vote.

The final House results are not in.  None of the states have certified the election results, so these are based on current vote totals.  Currently, the bipartisan election analysis group Cook Political Report has all decided tossup seats going Republican.  12 tossup seats are still undecided by them.

Four leaning Democratic House seats have been called for Republicans according to the Cook Political Report.  They are the Florida 27th, where a long time Democrat, Donna Shalala has been defeated.  Others Democratic leaning seats that went Republican were the Florida 26th, South Carolina 1st, and the Texas 23rd.

As of this writing, Democrats were unable to win a single leaning Republican according to the Cook Political Report.

According to the Cook Political Report, at the state level, Republicans did well, which gives them control of the redistricting and gives them a better chance to win more House seats in 2022.  This was despite the hundreds of millions spent by Democrats to gain a bigger foothold in the states.

While Delaware, Washington, and North Carolina elected Democrat governors; Indiana, Montana, New Hampshire, North Dakota, Utah, Vermont, and West Virginia went Republican. Montana switched from Democrat to Republican with the result that Republicans control 27 of 50 governorships.  The Montana win also gives Republicans total control of Montana, since Republicans already control the state legislature.

The New Hampshire State Senate and State Legislature flipped to Republican after going Democratic in 2018.  With its new Republican governor Sununu, it means New Hampshire is now in GOP hands,

It appears at this time, of the 99 state legislative bodies in the US (Nebraska has only one legislative body), that the Republican Party controls 62 legislative bodies, while the Democrats now control 37 (a loss of two by the Democrats).  Republicans also gained in seats held in several states.  In heavily Democratic Maine, the GOP gained six seats in the state legislature.

In Iowa, Republicans expanded their majority control of their legislature.  Republicans in Pennsylvania gained seats in both the legislature and state senate (which raises more questions about the validity of the Biden lead in the vote counting).  North Carolina saw the GOP retain control of both state senate and legislature

In Texas, where tens of millions of Democratic dollars were spent to turn the state blue, Democrats gained only one senate seat.  Both legislative chambers remain Republican, as well as the Texas governorship.

The other fact that will impact future elections is the bleeding of population from Democratic states to Republican states, which means that the 2024 presidential election will give Republicans a greater electoral advantage.


Legal Challenges

Trump and his supporters are claiming that no matter who wins, this election will be fought out in the courts and will inevitably end up in the US Supreme Court.

They are saying that voter fraud is common in the US and some cities like Philadelphia and Chicago are considered masters of fraud, although it has been hard to change tainted elections.  However, they pointed out that there is evidence ranging from video of postmasters admitting that they postdated mail in ballots (a felony that is now being investigated by the FBI) to dead people voting.  There are also districts on Wisconsin that turned in more votes than registered voters.

When a ballot comes into the mail ballot counting center, the ballot does not have any indicator of who voted the ballot.  The outside envelope shows the voter and has their signature.  The poll worker is to validate the right of the person to vote and ensure the signature is valid.  Once that is done, the envelope is opened, and the ballot is added to others.  At that point, there is no way to discover if the ballot is valid or fraudulent.  That is why the GOP wanted vote counting to stop.  However, polling people in Pennsylvania refused to stop counting the ballots. These “fraudulent” ballots are now mixed amongst valid ballots and cannot be separated.  This makes traditional legal remedies difficult.

There are many challenges to the voting, but the major focus will be on Pennsylvania.  Here are some of the issues that will be coming up.

The SCOTUS declined a motion to consider a Pennsylvania court ruling on the validity of mail in ballots, which was a victory for Democrats.  However, the high court only declined the motion to expedite the hearing of the motion.  However, the court did not deny a hearing.  The motion is still before the court to review the Pennsylvania Supreme Court ruling.  Supreme Court Justice Alito has already ordered the separation of votes that came in after 8 pm on Election Day.

Much of the future SCOTUS decision will stand on what the US Constitution says about who oversees elections in the state.

Last year, the PA legislature passed a law that stated that only votes arriving at the county board of elections by 8 o’clock pm on Election Day are valid.  The law also stated that if this clause were declared invalid, it would also invalidate the rest of the act, which allowed mail in voting.  In other words, if the Election Day deadline was invalid, the whole mail-in law was invalid and most, if not all, mail in ballots (for both candidates) were invalid.

The PA Supreme court ruled that the deadline was invalid, and people had 3 days to turn in votes.  It also ruled that ballots with no postmark or illegible post mark were to be considered valid.

Some judges consider this to be a reasonable expansion due to the “natural disaster” of the pandemic.

However, this might be considered violation of the US Constitution.  Justice Alito wrote, “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature.”

The applicable sections of the Constitution are Article I, section 4, clause 1; and Article II, Section 1, Clause 2.  They give state legislature exclusive rights in terms of proscribing time, place, and manner of voting.

If the SCOTUS rules in favor of the GOP, all ballots received after 8 o’clock on November 3rd would be invalid.  This may give the election in Pennsylvania to President Trump.

In the case of states where determining which votes are valid is not so clear, legislatures are already looking at determining the state electors since the vote is “fraudulent”.  Michigan, Pennsylvania, and Wisconsin legislatures are already preparing investigations that could lead to a vote that would give the electoral votes to Trump.

Although it is assumed that the popular vote determines the electors, the US Constitution does not say that.  Legal precedent holds that the legislatures hold the final power.  In the 2000 SCOTUS decision in Bush vs. Gore, the court reaffirmed that the legislatures held the right to choose electors.  The decision states, “The State, of course, after granting the franchise in the context of Article II, can take back the power to appoint electors.”  This was mentioned because the Republican Florida legislature was considering appointing the Republican electors to vote for Bush.

Although the “hanging chad” issue decided the race, SCOTUS held that Florida had the legal and Constitutional power to appoint the Republican electors despite the outcome of the hanging chad issue.

There is also the precedent of McPherson vs. Blacker, which ruled in a Michigan case in 1892 that the legislature had total power to decide their electors.  They stated in the decision, “The Constitution does not provide that the appointment of electors shall be by popular vote… It recognizes that the people act through their representatives in the legislature and leaves it to the legislature exclusively to define the method of effecting the object.”

McPherson vs. Blacker remains the legal precedent.

Since Republican legislatures hold power in Wisconsin, Pennsylvania, Michigan, North Carolina, Georgia, and Arizona, they can act by appointing Trump electors if they think the vote was fraudulent.  Biden would likely sue, but the legal precedent is not in his favor.

The SCOTUS could also rule that the Electoral Count Act of 1887, which gives the US Congress the right to pick which groups of electors to seat, was unconstitutional because it overrides the express right given to state legislatures by the US Constitution.

The precedent, McPherson vs. Blacker, was decided after the Electoral Count Act of 1887 and the Act was never updated since it was never needed.  In addition, the 2000 SCOTUS decision in Bush vs. Gore reaffirms the McPherson vs. Blacker decision.

In other words, to Trump the 2020 presidential election is far from over.  SCOTUS will have a say in many legal issues.  And the legislatures also have the option to pick the electors if they think there was fraud.

Stay tuned.