Week of January 19, 2021

Biden’s Foreign Policy and his Team

It was easy to forget during all the drama surrounding the election that Biden had selected his foreign policy team in November.  And, like the election, the people selected engendered criticism.  The left wing of the Democratic Party complained that the foreign policy team was not diverse and had too few women and minorities.  More moderate Democrats, foreign policy experts and Republicans complained there were too many Obama people who were responsible for foreign policy failures of the Obama Administration.

These criticisms, however, reflect differing opinions on what direction the Biden Administration should take on foreign policy.  The campaign stump speech that merely criticized the Trump policy will not be enough.  Biden must make choices – some exceedingly difficult ones.

Many want a return to Obama policies.  They want bilateral cooperation with China on   number of issues like the environment, health, and economic issues.  They want to reinstitute the Iran nuclear deal and want a more active role in the Middle East.  They also want to induce change in totalitarian governments to bring about more democracy.

The second group sees a changed world view.  They see China as a threat and want a more aggressive approach to Beijing.  They see the Trump initiatives in the Middle East to lessen US involvement in the region and to pressure Iran on its nuclear program.  They also want negotiations on several international issues like taxes, cybersecurity, industrial policy, and technology.

One important factor is Biden and his previous experience on foreign policy issues as Vice President and senator.  As Obama’s Vice President, Biden frequently disagreed with Obama’s policies and approach.  He wanted a more aggressive support for the Ukraine, while Obama wanted to restrict the US support to non-lethal equipment.  He also wanted a more aggressive approach to China.

Although Biden has made it clear that he is more willing to work with allies than Trump, he may find some his policies will not please some allies as much a Trump’s policies.  The Australians and Japanese are worried about Biden’s potential to create closer relations with China despite China’s aggressive crackdown in Hong Kong and military pressures regarding Taiwan, the South China Sea, Nepal, and India.

Europe is also worried about its status.  Will Biden focus so much on China that he will leave European issues on the sideline?  How will the US/British “special relationship” fare since Biden opposed Brexit?

Biden has also indicated that he will not forget traditional NATO allies by overturning the Trump decision to move US military forces from Germany to Poland.

Foreign policy also intersects with politics and this offers Biden a chance to “reach across the aisle” and create a more bipartisan attitude in Washington.

If there is one area of concern in both the Biden and Republican camps, it is China.  The China of 2021 is far different from China of 2009, when Obama came in.  Today’s China has managed to irritate nearly every country from India to Japan by aggressively imposing its own territorial boundaries, despite international law.

While Obama promised to pivot towards Asia, he never did, and China policy was left to drift.  This is no longer possible.

Biden can create good will with a majority of Senate and House Republicans by showing seriousness in dealing with China.  It will also help improve relations with many nations in East Asia.

Countering China will also help relations with Great Britain, which is upset with China’s abrogation of the treaty that gave Hong Kong back to China.  The British Navy is also working with the US Navy in defending the rights of navigation in the South China Sea and elsewhere.

An aggressive China policy will also fit into current EU’s policy of cutting back on cooperation with China.

The aggressive China policy, however, will have a cost within his own party and administration.  Those who believe in bringing back the Obama policies will argue that cooperation is the key to limiting China’s aggressive moves and preventing a Cold War with China. Others will argue that domestic spending on a “Green” economy will help the US to become more competitive with China – a policy that will be favored by many in the Democratic Party.

Given that Xi Jinping’s China has become more aggressive and assertive in the last few years, Biden will have to retain some of Trump’s policies of confrontation.  How much confrontation Biden will show will depend much on who he is listening to in his administration?  A serious pull back, may indicate that the people who have Biden’s ear are those who advocate a return to the Obama policies.

One region that has changed dramatically in the last four years is the Middle East.  ISIS is no longer the threat it was.  The number of American military forces in Afghanistan, Syria, and Iraq has dropped dramatically.  There is also a “normalization” agreement between Israel and several Arab nations.

Here Biden is boxed in.  It would be politically risky to return forces into the region.  Nor does he want a return of the ISIS threat.  And he would not want anything to cause the Arab states deal with Israel to fall apart.  Chances are that his Secretary of Defense Austin will help by advising him on the transitioning Middle East – a subject he lectured on at the Brookings Institution several years ago.

The only areas of freedom for Biden will be Turkey and Iran.  In the case of Turkey, Biden would likely work in concert with the EU to isolate that nation and make its expansionist policies harder to carry out through economic sanctions.  This may include increased military support for Greece.

Iran poses a larger problem.  It has also become more assertive with its capture of a Korean tanker.

While Biden may want a return to the Iranian nuclear deal, the time has passed for an easy way for that.  Iran has enriched more uranium and will be loath to give it up.  The Iranians will also expect a dramatic reduction in economic sanctions – something that will be criticized by Republicans.

When it comes to Iranian sanctions, Biden will have to work with Europe.  However, dealing with Europe is no longer as simple as working with the EU.

Today, the EU is the “Sick man of Europe.”  Southern EU nations do not like the EU’s fiscal policy.  Eastern EU nations do not like the EU’s social and political policies.  The English, who did not like the EU – period – have left it.  And the rest of the EU nations do not like how the Germans have managed to dominate the EU.  Consequently, Biden cannot return to Obama policies, even though he opposed Britain’s Brexit.  Instead, he and his team will need to formulate a new European policy that recognizes the fractures in the EU.

Another European problem is Russia, which will be tough since the Democrats complained Trump was too friendly with Russia and Putin.  If Biden gets too close with Russia, he can be accused of the same policy the Democrats loved to accuse Trump of.  Biden also has a National Security Advisor, Jake Sullivan, who is opposed to working with Russia.

However, Russia must be addressed.  Working with Russia allows Russia to act as a counter to China in East Asian diplomacy.

Working with Russia also allows the US to push for trilateral negotiations on nuclear arms with China and Russia – something the old SALT deals did not address.  China’s growth as a nuclear power makes it mandatory to include them as an equal partner with Russia and the US in limiting the threat of nuclear weapons.

Finally, there is the NATO alliance.  Although Trump was accused of ignoring the alliance, Trump was focused on ensuring that NATO nations met their financial obligations.  Trump also recognized that Eastern NATO nations were more concerned about a newly aggressive Russia.  Consequently, Trump was focused more on moving US forces closer to Russia, even though that policy upset the Germans, who traditionally had most US forces dedicated to NATO.

Biden has pledged to return these forces to Germany.  However, we can expect the National Security Advisor to probably oppose that move.

Again, NATO policy cannot be a return to Obama policy.  A more aggressive Russia must be countered.  In addition, NATO nations are tired of being used in the Middle East as a subsidiary of the American Army, as they were during the Obama years.  Biden must move to craft a new NATO mission – one that moves away from nation building and moves towards stopping Russian expanded influence.

In the end, the Biden policy will be a mix.  Much of it will reflect his past positions on foreign policy in the Senate.  It will include some Obama policies as well as Trump positions.  The world has changed since Biden was Vice President and to ignore those changes would be foolish.  In the end, it will be more pragmatic than Obama’s and less nationalistic than Trump’s.

Biden’s Foreign Policy Team

Although there are many people who will have an input in foreign policy decisions, we will limit discussion to the three most important people, the Secretary of State, the National Security Advisor, and the Secretary of Defense.

Secretary of State.  Tony Blinken is slated to head the State Department.  He has been a member of the foreign policy community for nearly 30 years.

Both Biden and Blinken are happy that the Democrats control the Senate because the GOP could have asked many troubling questions about Libya during confirmation hearings.

Blinken took an aggressive, military approach to the Middle East, specifically Syria and Libya.  He also supported the arming of Syrian rebels, which, in turn usually fell into the hands of ISIS.  He also advised Biden to vote for the invasion of Iraq when Biden was a senator.

Blinken is also a supporter of Israel and helped Senator Biden fund the replacement of Israeli air defense missile used by Iron Dome system.

National Security Advisor.  Another hawk is Jake Sullivan, who was a Hillary Clinton confidant and Vice President Biden’s National Security Advisor.  He advocated arming Syrian rebels and the Ukrainians.  He is also an opponent to working with Russia and could be a barrier to better relations with Russia.

He has been an advocate of “Smart Power” which is a blend of hard power (military) and soft power (diplomatic).  He can be pragmatic but may tend towards military solutions.  He worked with Iran in ending economic sanctions.

In Clinton’s memoir, “Hard Choices,” Hillary described him as, “not the most experienced diplomat as the State Department I could have chosen.”

However, Sullivan may have more problems in the Biden Administration.  Biden was opposed to sending more troops to Afghanistan.  He also was worried about the radical Islamic elements in the Syrian rebel alliance.  Both moves were advanced by Sullivan.

Secretary of Defense.  Retired General Lloyd Austin is Biden’s choice for Secretary of Defense.  He was commanding officer of United States Forces – Iraq Operation New Dawn.  He has experience in the Middle East, served with the 82nd Airborne (America’s fast reaction force), and the 10th Division light infantry.  He managed the troop drawdown in Iraq and oversaw the military plan to counter ISIS; an operation that drew criticism of his direction of military operations in Syria.

Austin is a low visibility leader.  As a result, he is not expected to be as public a leader as some of his predecessors.

One area of concern has been as a member of the Raytheon Board of Directors, one of the world’s largest military contractors.  Many Raytheon products are bought by the Defense Department and there may be questions of bias in awarding military contracts.

However, Austin is an expert in military affairs.  He will be an asset in advising Biden on nation building (and its problems) and the uses and limitations of America’s fast reaction force.

Week of January 11, 2021

The U.S. Capitol Hill Riots
What will be the Fallout?

For 11 years we have been warning about the brittle nature of America and the potential for a civil war that leads to a breakup of the United States.  The demonstration that led to the storming of the US Capitol on Wednesday proved that.  It also tells us that we must see the event as one of many that have occurred in the recent past.

The events started with peaceful rallies near the White House, one of which was attended by President Trump.  When they were over, the crowd migrated towards the Capitol, where events went out of control.  Police started tear gassing some of the unruly demonstrators, which led to a break in police lines that allowed demonstrators to climb the Capitol steps and eventually open a door that allowed protestors to storm the Capitol.

Congress, which was in the process of validating the Electoral College vote for president evacuated the building and federal agents sealed the Senate and House chambers and took cover, with their submachine guns at the ready.  Soon after, a federal agent shot and killed a Trump supporter – an Air Force Veteran of 14 years.

The shooting seemed to cause a return to sanity.  Protestors started to drift out of the Capitol and law enforcement managed to clear the building without any further major violence.

The short-term impact was obvious.  Republicans who had planned to challenge the votes in several states lost their desire for debate and Biden was officially named the president elect.  Many Republicans who had denounced the violence of BLM and Antifa protests were forced to also condemn the “Trump inspired” riots.

President Trump seemed to have lost his political drive.  He told the protestors to go home, quietly recognized Biden as president elect, and promised a smooth transition.  He then left the White House for the presidential retreat at Camp David in the Maryland mountains.

Democrats saw this as a last chance to corner Trump.  Some called for his impeachment, even though the impeachment process takes months, when Trump has less than two weeks left in office.  Others, including the Speaker of the House, called on Vice President Pence to use the 25thAmendment to remove Trump – a process that also takes longer than Trump’s remaining time in office.

But all of this was political theater that will do nothing to address the problems that have led to major outbreaks of violence in 2020 by BLM and Antifa, the protest in Ferguson in 2014, and an increase in murders in the US.  Nor will it address the concerns that led to the Washington invasion of the Capitol Hill of Wednesday or previous events like the Bundy Ranch standoff.

As President John Kennedy once said, “Those who make peaceful revolution impossible, make violent revolution inevitable.”

Violent revolution is looking more inevitable in the US.

The mid-term and long-term impact will be much greater.

Those who think that the storming of the US Capitol was an unusual event that won’t be repeated are wrong.

The same thing occurs at the state level.  In May 2011, thousands of left-wing protestors rushed the Wisconsin State Capitol and forced their way in.  They were protesting a bill that limited collective bargaining rights for public workers.

There were also dozens of demonstrations held at state capitols on Wednesday, although they seemed generally more peaceful.

Clearly, the fractures in American society – both on the left and right – have not been healed and appear to be growing worse.

This raises questions about what the government and others will do to repair the damage.  President Elect Biden’s speech to the nation on Thursday called the protestors “insurrectionists” and “domestic terrorists.”

Biden is not the only one.  Many are calling for prosecuting Trump supporters.  David Atkins, the regional director for California’s Democratic National Committee (DNC) said Trump supporters should be interned in “re-education camps.”  He referred to them as, “conspiracy theory fueled belligerent death cult against reality and basic decency.”

An airline workers union wanted to prevent them from flying home.

Some Democrats like Congresswoman Cori Bush are demanding the expulsion of Republican members of Congress for sedition and domestic terrorism.

ABC News political director Rick Klein called for “Cleansing the movement he commands.”

Historically, demonizing a large part of the population has never been a successful tactic to prevent or stop a civil war.

While many of Republicans in America still think President Trump is responsible for the storming of the Capitol, there is a fight within the GOP that is ready to break out.  Anti-Trump forces in the party are allying with moderate Republican politicians who will seek the 2024 presidential nomination.  They will seek to retake control of the party in the next few months.

So, where does this leave Trump?  Despite his popularity with a large segment of the voters, his chances of returning to the presidential race are small.  Having served one term already, if he runs and wins, he will automatically become a “lame duck” president.  Parties prefer a candidate that can run for reelection, help candidates down-ticket and complete long-term programs instead of a “4 years and out” president.

The future of Congress is still in doubt.  The Senate must vote on whether to retain the filibuster rule.  The rule prevents quick legislative action and could hamper Democratic action on health care the environment, gun control, and increasing the size of the Supreme Court to negate the conservative majority on the current court.  However, with the GOP holding 50 seats in the Senate, they only need one Democrat to side with them, and it appears that Democratic Senator Joe Manchin from West Virginia has indicated that he prefers to retain the filibuster.

The 50-50 Senate tie, with the tie breaking vote going to the future Vice President Harris makes it easier for the Biden to nominate Cabinet members and judges without as much interference from the Senate Republicans.

The long-term damage could be considerable.  Although BLM and Antifa were shown some leniency during the summer protests, the same people who argued for leniency are now calling for tough treatment for the pro-Trump protestors.  The news site Vox praised the riots last summer as “scary but can lead to serious social reforms.”

Thursday Vox said every Capitol protester “should be arrested”

Digital free speech is also threatened.  In the 24 hours after the Capitol siege, Twitter, Facebook, and YouTube has all acted against conservative sites, including President Trump.

The biggest threat is the move towards totalitarianism.  Some Democrats have argued for calling the Covid pandemic a national emergency and then bypassing Congress and legislative action to institute controversial laws.

Then there are Trump supporters and conservatives that Biden has called “insurrectionists” and “domestic terrorists.” Calling for a national emergency because of the threat of insurrection could allow Biden and others to move quickly on gun control, naming conservative groups as terrorist organizations, detention without Habeas Corpus, etc.

These are tactics that have never stopped a revolution in the past.  But they have been responsible for many “Dirty Wars.”

Meantime, the issues that caused the protest on Wednesday remain – Double standards, growing government interference in American lives, Washington’s powerful but invisible bureaucracy, illegal immigration, and election reform remain unsolved.

Which brings up Kennedy’s quote again “Those who make peaceful revolution impossible make violent revolution inevitable.”

The momentum created by the Washington protest of January 6th, 2021 does not slow down, even of Trump disappears from the scene.  As protests across the country showed, this is a national issue.  The movement has a martyr, Ashli Babbitt, a 14-year Air Force veteran who was killed.   It also appears that many militia units are being activated across the nation.

Ironically, the one clear justification for civil unrest and insurrection can be found in America’s founding document, the Declaration of Independence.  It stated, “Governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.”

These words were written by Thomas Jefferson, the third President of the United States nearly 250 years ago.  And the vast majority of those protesting on Wednesday were aware of those words and what they meant.  They were not insurrectionists in their own mind, but, in the words of Jefferson, were merely fulfilling their duty.

Week of December 21, 2020

Assessing the Seriousness of the Latest Cyberattacks

In addition to the rising Covid-19 case numbers in US and most of the world during this holiday season, the US and others have suffered a rash of cyberattacks.  The Washington Post indicates that the ones targeting the US were initiated by a Russian group.  But many of the hacker’s targets are involved in national security, so the public will never know the true impact or the allegiance of the hackers.  However, some think that this may have been initiated by Iran in retaliation for attacks on its nuclear infrastructure.

It appears that some of the targets for the attacks included the Federal Energy Regulatory Commission, Treasury Department, Commerce Department, National Nuclear Security Administration, Sandia and Los Alamos national laboratories, the Office of Secure Transportation, and the Richland field office of the Department of Energy.  It appears that over 18,000 customers were affected.  The attacks took place in the spring of 2020, when the nation was paying more attention to the Corona virus.

A press release from the FBI, Director of National Security, and the Cybersecurity and Infrastructure Security Agency was released on December 16th.  It suggested that government agencies disconnect or power down SolarWinds Orion products.  Aside from that, it was vague about the threat or what agencies have been penetrated.

According to the New York Times, the attack was a “Supply Chain Attack” where the attack is against a commercial product that will inevitably be downloaded to government computer systems.  The Times said the style of the attack was like that used by the Russian intelligence agency known as SVR.

The attackers gained access to SolarWinds software before updates were made available to customers.  The customers then downloaded a corrupted version of the software, which contained a backdoor for the hackers to gain access to the customers’ computers.

Although the government has been closed mouthed on the level of damage, some are indicating that this may be the worst cyberattack in US history.  John Hopkins cyberattack expert Thomas Rid said the number of documents obtained by the attacker is “several Washington Monument piles of documents.”

The US is not the only country to recently experience cyberattacks.  The Times of Israel reported that over 40 Israeli companies were hacked.  The attacks were against the logistical infrastructure, not defense agencies.  One attack earlier this year was against Israel’s water infrastructure.

Reports say Iran is the likely culprit

 

Accessing the Potential Damage

Although the US government has been reticent to give any idea of the impact of this attack, Senator Angus King (I Maine) said “the attack unfortunately represents a broad and successful espionage-based assault on both the confidential information of the US government…ongoing investigations reveal an attack that is remarkable for its scope, sophistication, and impact.”

However, a possible idea of the impact can be understood if we look at one of the targets to see what sort of intelligence that the hackers might want and what they were possibly able to obtain.

One of the targets was the small, highly secret National Nuclear Security Administration (NNSA).  Officially, their job is to maintain and enhance, “the safety security, and effectiveness of the US nuclear weapons stockpile.”  It was created in 1999 after the loss of nuclear secrets to China during the Clinton Administration.

Although the agency likes to point to its mission to reduce the threat of nuclear warfare and to respond to radiological emergencies in the US and abroad, the key mission is to manage the American nuclear weapons stockpile and ensure that the weapons are operational.  They are also responsible for the naval nuclear reactors found in American submarines and aircraft carriers.

NNSA has also undergone some internal upheaval as its head. Lisa Gordon-Hagerty, was forced out last month in a bureaucratic turf war with Secretary of Energy Dan Brouilette.  There have also been bureaucratic turf wars over how much control the Department of Defense or Department of Energy should have over the NNSA.  Until this year, the agency was quasi-independent.  Now the Department of Energy has more control over the agency – something the galled the NNSA.

As small as the NNSA is (It only has about 2,000 employees), it has a major impact on US nuclear weapons custody, testing, and design.

The following is a list of its responsibilities and how a cyber-attack could compromise its mission.

Ensuring weapons in the nuclear stockpile are operational.  Nuclear weapons are more like a loaf of bread in that they do decay over time.  Critical elements like tritium and plutonium decay and, in the case of plutonium, can even change physical characteristics, which impact the effectiveness of the weapon.  The NNSA must decide when the nuclear weapons decay enough to warrant maintenance to remain reliable.

Since the US no longer carries out nuclear tests, the government must use sophisticated computer software to determine if stored nuclear weapons are still effective.

A hacker could possible learn how the US government simulates the testing of nuclear devices.  This would give an insight into the construction of US nuclear weapons and how to carry out the computer simulation.  This would allow hackers, who are working for a country developing nuclear weapons, to develop computer simulations to verify bomb designs without actual testing.

Help design new nuclear weapons.  The NNSA has software that can help design nuclear weapons and help calculate their potential yield.  This software would give an idea of American nuclear capabilities as well as helping a nation that is designing nuclear weapons.

Develop nuclear reactors for the US Navy.  Aside from the computer software that NNSA uses to design and develop naval reactors, the hackers could also learn the power and performance of the reactors, which could give other nations a good idea of the performance of US submarines and aircraft carriers.

Movement of nuclear materials.  Any information on the movement of nuclear materials could be used to hijack the shipment.  Personal information on the armed guards could be used to target them for subversion.

Waste disposal.  NNSA is responsible for disposing low level radiological materials.  These materials would be of use for a hostile group that wants to build a radiological weapon (dirty bomb) to contaminate a large area.

Remote sensing.  NNSA leads in remote sensing for potential nuclear threats.  Nations that gain insight into how the US detects nuclear activities could better hide their activities.

Subcritical testing.  Nuclear testing where no critical mass is formed or where no self-sustaining nuclear reaction occurs is allowed under international agreement.  These tests take place underground in Nevada in the U1a tunnel complex 900 feet below the surface.

These tests are also critical for the development of Fourth Generation Nuclear Weapons.

The results of these subcritical tests would be of immense value to nations involved in nuclear weapons development – especially fourth generation weapons.

Custom fabrication.  The NNSA has a machine shop in Nevada that produces highly classified assemblies for nuclear devices.  Hackers could gain considerable information on America’s nuclear testing program and the development of new nuclear weapons from such information.

National Ignition Facility.  This facility is concerned with using a high-powered laser to simulate the compression of the primary in a nuclear device by high explosives.  This allows a way of studying what happens in a nuclear device in the first few milliseconds of a nuclear explosion.

The studies at this facility are important for nuclear weapon maintenance.  Hackers could use the information to maintain a nuclear weapons stockpile that can be expected to reliably work.

Although the US government has insisted that they do not know what the potential threat to US security has occurred from the hack, it is clear that the threat is much greater than they are willing to admit.

The NNSA itself has information that would be of immense value to any nation, especially those who currently have or are developing nuclear weapons.  Not all that information would necessarily be top secret.  Even mundane information, in the hands of nuclear physicists would provide considerable intelligence to another country.

The NNSA is only one of several national security agencies that were penetrated by these hackers.  If the type of information that was available from the NNSA is an example of what the hackers retrieved, the US has a major security problem.

The impact of this massive hacking will not be known for years to come.

Week of December 16, 2020

Supreme Court Dodges Election Court Case

This week the United States dodged a court case that promised to change the election results and even lead to possible civil unrest or an outright civil war.  Even then, a member of the Texas legislature is proposing a bill that will allow a referendum that could lead to Texas seceding from the US.

The case submitted to the Supreme Court (SCOTUS) was brought by Texas and charged that four states; Pennsylvania, Michigan, Wisconsin, and Georgia had diluted its vote by changing its election procedures without the approval of its legislatures.  Texas asked the court to throw out the election results from those four states and force the legislatures (all controlled by Republicans) to choose their electors independent of the election results in those states.  If that had happened, Trump would have likely won the election.

At first, the court challenge had been underestimated by court watchers.  The Attorney General of Texas claimed that “failing to follow statutory requirements for signature validation and other processes for ballot security, the entire body of such ballots is now constitutionally suspect and may not be legitimately used to determine allocation of Defendant states’ presidential electors.”

It was a bombshell case.  In addition to accusing the four defendant states of not following the laws set up by their legislatures, which is a violation of the US Constitution, it asked the Supreme Court to not allow the electors votes from those states not to be counted by the US Congress in January.  Either the state legislatures must name a new slate of electors, which would likely vote for Trump, or not to send new electors to Washington, which would mean that Congress would have the final say – giving Trump the win anyway.

Unlike most legal cases that must work their way up to the Supreme Court, this went directly to SCOTUS.  The Constitution states that if there is a conflict between states, the case must be decided by the Supreme Court.  The rational was that since the US Constitution is a contract between the 50 states, any issue involving states cannot be decided by a lower court.

However, the state that brings the suit must prove that it was harmed.  That means in this case, Texas must prove that the actions of Pennsylvania, Wisconsin, Michigan, and Georgia directly harmed the voters of Texas.

In this case, Texas ruled that its citizens’ votes were diluted by the improperly counted votes of the other states – a weak rational since Texas voters had their own election for electors.

The Supreme Court added it to the docket on Tuesday and informed the four defendant states that they must respond to the charges by 3:00 PM on Thursday.

At first, the case garnered little attention.  However, as lawyers (especially attorney generals from the various states) read the Texas complaint, interest picked up quickly.

Although the case dealt with the 2020 election, there were some philosophical issues about interpreting the Constitution in the case.

When it comes to Constitutional law in the US, there are two schools of thought.  The first are the “Originalists,” who believe that the US Constitution must be read and interpreted as the writers of the Constitution did in the 1790s.  This was the traditional way it was interpreted until the 1950s, when the Warren Court established several landmark cases using a more liberal way of interpreting the Constitution.

The Warren Court followed the principle that the US Constitution was a “living document” that needed to be interpreted considering modern times.  It should not be read in light of what the writers of the Constitution meant, but how it should be interpreted in light of modern times and needs.

One example of the difference in interpreting the Constitution is how both sides interpret the Second Amendment that gives US citizens the right to keep and bear arms.  The originalists read the Second Amendment and its statement that the right to keep and bear arms should not be infringed and insist that that means laws limiting gun rights are unconstitutional.

The lawyers who prefer the “living constitution” interpretation insist that given the fact that the US has a standing army (precluding the need for a militia) and is experiencing high levels of violence in its cities, the Second Amendment must be interpreted differently, meaning gun control laws are constitutional.

In many ways, the case brought up by Texas was questioning how the Constitution would interpret Article I where the state legislatures are the final authority in establishing election procedure.  The Texas case noted that election officials and courts frequently changed election procedures without going through the legislature.

Texas noted, “Our country stands at an important crossroads.  Either the Constitution matters and must be followed, even when some officials consider it inconvenient or out of date or it is simply a piece of parchment on display at the National Archives.  We ask the Court to choose the former.”

The case not only attracted attention, but it also caused may groups to become involved.  Over 40 states filed “Friend of the Court” briefs – in some cases, not reflecting how they voted, but how they want the case to interpret the Constitution.  Republican Arizona, which voted for Biden came in on the side of Texas, while Ohio, who voted for Trump, sided with the defendants.  Montana submitted two responses – one from its Republican Attorney General and one from its Democratic governor.

In addition to a filing by President Trump, other groups included over 120 Republican congressmen, Members of the Pennsylvania legislature (backing the Texas petition), the Christian Family Coalition, and two American territories that cannot even vote for president.

Both sides, it seemed, were preparing for history making oral arguments on the future of the US.

However, it didn’t’ come to that.  On Friday evening, the Court ruled with little comment that Texas had not proved that it had been harmed by the actions of the four states.  Associate Justice Alito (one of the conservative justices) wrote that Texas had a lack of standing to bring the suit.  He wrote Texas “has not demonstrated a judicially cognizable interest in the manner in which another State conducts its election.”  As a result, “All pending motions are dismissed as moot.”

Thus, ends the case and probably the best chance Trump had for changing the election results (although there are many other cases working their way through the court system, that could possibly end up at the SCOTUS).

However, this does not end the issue.  The issues raised by Texas were not decided.  The decision only reflected the standing of Texas to bring them.  The issues could end up coming before the Supreme Court in the future, when the passion of the election will not have an impact.

However, the passions behind the 2020 election remain and will not soon be cooled.  Pro-Trump voters demonstrated in Washington DC a day after the SCOTUS ruling.

At the same time, the New York Times, speaking to the political divide, tried to explain it by speaking of an “Expert Class” of “journalism and academia” that lives in the cities, versus the “people left behind who “have no contact with the expert class.”

Calling Trump supporters stupid is not a way to patch up the differences.

Meanwhile, the control of the US Senate remains in question as two elections in Georgia will decide control of that chamber.

Clearly, the US is deeply divided politically.  This week, the highly popular radio talk show host Rush Limbaugh noted that the US may be headed for a breakup as states may secede.  Democratic Congressman Pascrell of New Jersey asked House speaker Pelosi to refuse to seat the Republican congressmen who supported the Texas court filing for supporting “insurrection or rebellion.”

Of course, when it comes to talk of seceding, Texas always takes a lead as a poll showed that most Texans either favor secession or are undecided.

Texas GOP chairman and former Black US Congressman Allen West said on Friday that the rejection of the court case by SCOTUS was a major problem.  He tweeted, “Perhaps law-abiding states should bond together and form a Union of states that will abide by the Constitution.”

He reiterated his opinion on secession on Saturday.

Texas lawmaker Kyle Biedermann will be filing a bill to allow for a referendum on Texas becoming its own country or remaining in the US.  He notes the Texas State Constitution says, “The faith of the people of Texas stands pledged to the preservation of a republican form of government…they have at all times the inalienable right to alter, reform or abolish the government in such a manner as they may think expedient.”

Ironically, many who are condemning any talk of secession now were contemplating it a few months ago if Trump was reelected.

Even without court cases or secession of states, the US has several hurdles it must clear to go back to a normal condition.

BLM and Antifa are still protesting in the Pacific Northwest.

There is also the growing controversy of Biden’s son, Hunter Biden, taking bribes and being investigated by the FBI.  It would be hard for Biden to govern if his son is being prosecuted by his own Department of Justice.

Republicans will be watching this investigation for any sign of wrongdoing.

And it is not hard to imagine this controversy leading to the resignation of Biden and Harris becoming the president.

It seems that the SCOTUS decision is not the end of the political controversies of 2021, but the beginning.

Week of December 04, 2020

Assassination of Iranian Nuclear Chief Raises Many Obstacles for Biden

The assassination of Mohsen Fakhrizadeh poses many short terms and long-term questions.  First, how was the killing done and who is responsible?  How will the US and Iran react?  And finally, how will this impact the incoming Biden Administration and its future relations with Iran?

Mohsen Fakhrizadeh has been a potential target for Israel and the US since the Bush presidency, when his claimed assets in the US were frozen.  Although compared to the Father of the American Atomic Bomb Robert Oppenheimer, his specialty was not nuclear physics.

It appears that his area of specialty was miniaturizing the nuclear warhead and making it rugged so the warhead could survive its reentry into the atmosphere.  There is also the production of an ablative material to protect the warhead from temperatures caused by reentry and design of the whole warhead package.  According to US analysts these are technologies that aren’t as easily solved as the basic physics of a nuclear weapon and have not been solved yet by the Iranians given the known state of their current ballistic missiles that have been tested.

Although there remain many questions, it appears that this was a remote-control assassination.  An unofficial Fars source claims the attack was done without any killers onsite and with a remote-controlled firearm.  The assault took three minutes as the scientist and Revolutionary Guards general was heading east out of Tehran.  When Fakhrizadeh left his armored car, he was hit by a gun attached to a Nissan automobile that was about 150 meters away.  After hitting the general, the Nissan exploded.

Some military experts claim that the gunfire was too accurate for a remote-controlled device and human snipers were present.  However, such technology is readily available in the US, and therefore Israel.

ATN (the American Technology Network) is the producer of many optical instruments used by the American special forces, including night vision, and thermal devices.  They have produced day and night rifle scopes that can be operated remotely.  Not only does it have ballistic calculators to ensure accuracy, but the information from the scope can also be sent to a remote site.  One example is the discontinued ATN X-sight II HD day and night rifle scope, which can be viewed on the manufacturer’s website.

These technologically advanced rifle scopes are export controlled, which indicates that the assassination was limited to either the US or a close US ally like Israel.

A scope like this, along with a set of remote-controlled servos could have little problem carrying out an attack like this.

This does not necessary imply that ATN or the US government was involved but cannot be ruled out.  It merely shows that the technology is available at a commercial level.

 

Reaction to the Assassination

On Sunday, the Iranian parliament retaliated by authorizing the enrichment of Iranian uranium to 20%.  Although this is not enough for a traditional nuclear device, it signaled that Iran was moving closer to enriching their uranium up to weapons grade.

The parliament also voted to restore the old design to the Arak heavy water reactor, which will allow to produce plutonium.  Plutonium is critical for smaller, more sophisticated nuclear devices.

The Iranian parliament speaker Muhammad Qalibaf confirmed that “The draft law on strategic measures to lift the sanctions will limit the terrorist acts waged by the enemy against Iran.”

It is the hope of the Iranian government that by pressing forward on uranium enrichment and plutonium production, they can force European governments to put pressure on Israel and the US.

In the meantime, there are actions that are taking place throughout the region.  Israel has put its embassies and diplomatic compounds on a high alert.

The US has also taken military measures.  President Trump ordered the American nuclear aircraft carrier USS Nimitz back to the region.  The Navy denied that the move was related to the assassination and was only taken to protect US troops being withdrawn from Afghanistan and Iraq.

The US Navy said, “It was prudent to have additional defensive capabilities in the region to meet any contingency.”

Although some have claimed that the Nimitz deployment proves that the US is planning an attack, US naval doctrine says otherwise.  When taking any major military action, the US Navy prefers to deploy nuclear carriers in pairs.  This move is more likely a preventative move rather a prelude to an attack on Iran.

If the US were planning a missile attack, they would be more likely to deploy missile carrying ships like submarines, destroyers, and cruisers.

It is unknown if Iran will retaliate given the US presidential transition.  Biden is seen as more friendly towards Iran and any Iranian retaliatory action would only tie Biden’s hands.

However, Tehran has accused Israel of seeking a full-scale war before Trump leaves office.

Iran’s options are limited.  They can orchestrate an attack through its allies in the region.

Iran could try to carry out an assassination against an important Israeli, but it appears that there are few Iranian assets in Israel and Iran doesn’t have the ability to carry out a human free, remote control attack as Israel did.

Iran can also carry out a military action against the Strait of Hormuz to cut off oil exports by the GCC nations.  However, given the rapprochement between the GCC nations and Israel, such a move would only drive them closer to Israel.  In fact, the GCC nations may even grant the use of their military facilities to carry out an attack on Iranian nuclear assets.  This does not even consider the possibility that European nations may join the US and the GCC in stopping Iran.

 

The Iranian Nuclear Deal

Despite the Biden election, the chances of the US reentering the Iranian nuclear deal is virtually nil.

First, the actions by the Trump Administration over the last four years have made going back to the status quo nearly impossible.  Additional sanctions against Iran have been taken and their status would have to be negotiated prior to renewing the deal.

Then, there are Iranian actions like their parliament passing a law that allows the increase of nuclear activities like increased uranium enrichment.  Would the US allow Iran to keep that enriched uranium?  That is unlikely.  Arrangements for eliminating the uranium would have to be arranged (if Iran would even agree to that), along with some payment compensation by the US.

Although Biden was Obama’s Vice President, he is not Obama, and he doesn’t have the same goals.  The Iranian nuclear deal was to be the centerpiece of the Obama foreign policy.  It took years to cobble together an agreement and there was accusation that Iran was hiding secret nuclear activities early on.  Biden has no obligation to reenter the deal.  Besides, there are other foreign policy issues that may capture Biden’s attention.

Then, there is the political impact of reentering the Iran nuclear deal.  Under Obama, the deal had no chance of being ratified by the US Senate, even when the Senate was under Democratic control.  With a slender Republican control of the Senate, ratification is impossible and there could be embarrassing questions asked in Senate committee hearings if Biden tries to make the deal an executive action as Obama did.

At this point, Iran realizes that any deal would only be an executive action by Biden and easily abrogated by the next administration.  In addition, any funding for the deal would have to pass Congress, including a potential Republican Senate.

Is Iran willing to make any deal that can be cancelled by the next president?

Finally, the Trump supporters are against any such deal with Iran.  Trump campaigned in 2016 against the Iranian nuclear deal and there has been no change of mind by his voters.  Biden would have to invest considerable political capital on any revived deal with the Iranians.

Besides, the US has another option – collaboration with Israeli intelligence.  It worked when the US and Israel sabotaged the Iranian centrifuges to slow the Iranian enrichment program.  It also helped to slow nuclear development as Israel assassinated several Iranian scientists.  And it is possible that the US had its hands in the recent sabotage of Iranian nuclear facilities.

The Israeli option is much “cleaner” than high profile missile strikes that could justify an Iranian response.  Israel obviously has an effective intelligence network in Iran that can carry out everything from sabotage to high tech assassinations.

Although many of Biden’s more progressive political allies may yearn for better relations with Iran, American foreign policy does not “turn on a dime.”  Biden must deal with Trump’s hard and sabotaging previous actions.  That will take months at best.

Then, there is the question of how much Iran wants to close a deal with the US.  For forty years, Iran has enjoyed “twisting the tail of the American eagle.”  It has given them status in corners of the world, where the US is disliked.

There is an American saying that “It takes two to tango.”  In other words, it takes two sides, who are interested in making a deal, to successfully complete any negotiation.

At this time, there is no evidence that just having Biden in the White House will dramatically change relations between the US and Iran.

Week of November 24, 2020

The US Military After 4 Years of a Trump Presidency

In 2016, candidate Trump promised to “Make America Great Again.”  Part of that promise was to strengthen the US military and give them additional support, while withdrawing them from needless battles without a clear goal.

How has Trump done in the last four years?  The fact is that it is a mixed bag.  Trump is drawing down US forces in the Middle East despite serious opposition in the US military bureaucracy, including senior military officials lying to Trump about force levels in the Middle East.  It appears that by January 20th, 2021, there will only be token forces remaining in the Middle East.  Biden can decide to increase forces in the region, but at his own political risk.

But there is more to the current role of the US military than deployment levels in the Middle East.  There has been a push to engage them in domestic politics.  Several months ago, Democrats leaders asked the Joint Chiefs of Staff if they would help in removing Trump, if necessary.  The answer was that the US military had no constitutional role in domestic politics. Likewise, Trump attempted to get the military intervene against protests in many US cities.

But there is more.  The character of the military has changed dramatically for a career soldier in the past 30 years.  It is frequently said today that someone like General George S. Patton, one of America’s most honored soldiers, would never make General – or possibly even field officer grade (major to colonel).

60 years ago, President Dwight Eisenhower warned against the “Military Industrial Complex.”  And his warning has come true.  A large part of the “Swamp” that Trump talks about is found in the Pentagon, which has a massive budget.  Trump has discovered that there is a big difference between the soldier patrolling Kabul and a general sitting in the Pentagon.  The egalitarian military where officers and the enlisted hold the same values is long gone.

Although the US military is strong thanks to technology and the large American economy, it is quite different today than it was a few decades ago.

Leadership begins with the officer corps and that has changed dramatically.

While the enlisted may have common American type values, officers have learned that being politically correct is more important than military skills.  This attitude led to several sloppy collisions at sea by US naval vessels.  People who did not have adequate training were allowed to command and “drive” the ships because they met political goals.

Consequently, skilled officers who are capable of fighting are likely to leave the military after their original obligation is up.  They are in great demand in the private sector, especially with companies with defense contracts.

Those who remain are less capable, but more politically correct and better able to direct the bureaucracy.  The result is a military that is better capable of fighting the White House than a Russian armored corps.

This bureaucracy of military officers who received their promotions to flag rank under previous Presidents were the ones that dealt with Trump.  And Trump soon learned that these bureaucrats were masters in delaying, misinterpreting, and ignoring his orders.  As a result, Trump was eager to fire or force out a number of senior military officers who failed his loyalty test or follow his orders even though, according to the Constitution, the president is the Commander in Chief.

Recently, Ambassador Jim Jeffery admitted that they lied to Trump about force levels in Syria.  “We were always playing shell games to not make clear to our leadership how many troops we had there,” Jeffrey admitted in an interview.  It was “a lot more,” than the 200 that Trump agreed to.

The Pentagon advisors say keeping US forces in the region will limit Iranian influence from growing – even though it was the Bush invasion of Iraq, that was most responsible for increased Iranian influence in Iraq

The unwillingness to withdraw the troops per Trump’s order led to the resignation of Defense Secretary Mattis.

Another change that has impacted the use of the military was Obama’s decision to focus more on Special Forces.  The increased use of Special Forces kept deployments of US forces secret (which benefitted that hiding information from Trump) and avoided the public announcements of the deaths of American soldiers.  Special Forces also seemed to accomplish more with less manpower and “fewer boots” on the ground in foreign countries.

The problem is that US Special Forces are not as special as they once were.  During the Vietnam War, when the US military was vastly larger than it is now, Special Forces numbered a couple of thousand.  Today, Special Forces number about 70,000, even though the size of the military is much smaller.

To increase the number of Special Forces, shortcuts were made in training.  People who would have failed to make it into the Special Forces in past years were given more chances to pass.  The result is a diluted force that costs more to train and support.  It also has a higher risk of failing to successfully complete a critical mission in the future.

Another problem is that these trained soldiers frequently leave the military after their enlistment is up and then sign on with a private contractor to provide some of the same services as they did in the Army, but for much higher pay.

Meanwhile, training for regular Army and Marine combat forces suffers; just as poor training led to ship collisions a few years ago.

 

The Trump Military in 2020

Although Trump wanted to increase the military’s capabilities, he has fought a bureaucracy that focuses on “toys” instead of combat capability.  For instance, the Marine Corps has announced that they will be eliminating their tank force and start focusing on high tech and lighter weapons – this at a time when the role of a main battle tank has become more important as friction and the possibility of conflict between NATO and Russia has increased.

One reason is the “Industrial” part of the “Military Industrial Complex,” that Eisenhower warned about, including some of America’s largest companies, does not focus on soldiers, but equipment.  This equipment is made more attractive because these companies hire retiring senior officers, who lobby their former colleagues to buy the latest high-tech weapon.

The result is that the US military has incredible capability to launch high tech weapons for highly visible, quick strikes.  Cruise missiles, aircraft strikes, and Special Forces operations are the mark of an American attack.  However, as seen in Iraq today, the regular forces ability to stop low tech rocket attacks by Iraqi anti-American forces supported by Iran is limited.

This is what is limiting Trump’s response towards Iran.  Trump appears to be willing to carry out a strike against Iran to limit its ability to quickly develop nuclear weapons.  But can the military withstand the Iranian response?

Although the New York Times said that the Pentagon had to talk Trump out of a more aggressive option against Iran, the truth is more mundane.

Trump had asked for a list of options that he could take after international inspectors had reported a significant increase in Iran’s stockpile of nuclear materials.

Trump had thought about a preemptive attack against the Iranian facilities because it could take place before January 20, 2021 and such an attack would make it harder for Biden to reenter into the Iranian nuclear agreement.

This was not the only option for Trump.  Some of the options included the aforementioned cruise missile attack on the nuclear facilities, attacks on Iranian “assets” in Iraq, and large-scale cyber-attacks on facilities like Natanz.

The problem with launching large scale cyber-attacks is that they take time to set up (more than a few weeks until January 20th) and they could be cancelled by Biden after he takes office.

There are reports that the missile attacks have been taken off the table.  Iranian leaders had threatened a “crushing response” to any such attack.

There is also the possibility that Israel will be given a free hand to respond – something that Biden may be willing to accept.

If not, Israel has warned it could act on its own should Biden move to restore conditions of the Iranian nuclear deal.  Tel Aviv has warned that Iran will continue to advance its nuclear weapons program.

So, what are the likely options?  It appears that US military leadership is not eager for a strong response towards Iran.

Actions against Iranian supported forces in Iraq like missile, drone, or aircraft attacks seem to be the likely option.  There is also the possibility of a covert Israeli cyber-attack on Iran’s nuclear infrastructure, with US assistance front loaded so a Biden administration cannot pull back.

Meanwhile, expect continued American military withdrawals from the region.  These include Afghanistan, Iraq, Somalia, and Syria.  This is one area where Trump has kept his campaign promises – except for some small numbers in the region that remain because Pentagon officials disobeyed orders.  Compared to the numbers of soldiers in Iraq and Afghanistan when Trump came to office, 2,500 men is a minor number.

Biden should be careful in listening to Pentagon advice in the future.  Unless he keeps a careful eye on Syria, his generals could put him in a position where he is confronting Turkey or Russia.

Americans have grown tired of the perpetual war in the Middle East that began in 1991.  Biden must be just as careful, as Trump, that the “Military Industrial Complex” does not take charge of Biden’s Middle East policy.

Week of November 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.

Week of November 2, 2020

The 2020 Presidential Election – Who will win?

It is just 2 days until the 2020 presidential election and anyone who says they know for sure who will win is relying on the average of polls that showing Biden with a 6-8 points ahead of Trump.

Polls, which overlooked Trump’s strength in 2016, see him losing again.  Could they be right in saying Biden will win?

For all the faith given to polls, they have been somewhat unreliable over the years.  There was the 1948 presidential election that showed Dewey ahead of Truman by a sizable percentage.  The highly regarded Gallup poll showed Reagan behind by 6 points two weeks before the 1980 election, only to see Reagan beat Carter in a major landslide.  And, of course, there is the 2016 election that predicted a landslide by Hillary Clinton over Trump.

So, are the 2020 polls right, or just as wrong as they were in 2016?

There are several factors that indicate that they could be over estimating Biden’s strength.  First, there are the large enthusiastic crowds at Trump rallies.  These are just as big as those in 2016, when the polls said Trump was going to lose.  Then there are the Biden rallies, where a few dozen attend.

Then, there is the tendency to give pollsters socially acceptable answers.  According to a Cato Study, 2/3 of voters say that the political climate is so poisoned that they do not want to give an honest answer.  Instead they give a “socially acceptable” answer.  In 2020, saying that they support Trump is not considered socially acceptable.

One way to avoid the “socially acceptable” answer problem is to ask other unrelated questions that indicate the actual views of the person being polled.  In fact, the Trafalgar Group, which was the most accurate pollster in 2016 calls these “unrelated” questions the “secret sauce” in their modeling (they also use larger samples, which is more reliable, but more expensive).  And their results indicate a big difference between what respondents say and what they believe.

If we examine the dramatic report of THE HILL on some of the positive Trump polls, we can find the anxiety among pollsters and their desire to avoid the debacle of 2016.

Most pollsters show Democratic presidential nominee Joe Biden with a sturdy and stable lead over President Trump at a time when tens of millions of people have already voted and there is almost no time to change the course of the race.

But a handful of contrarian pollsters believe Trump’s support is underrepresented and that election analysts could be headed for another embarrassing miss on Election Day.

The battles have spilled on to social media, where some well-known political analysts have dismissed polls that show Trump leading Biden.

The Trafalgar Group, which was the only non-main stream  outlet in 2016 to find Trump leading in Michigan and Pennsylvania on Election Day, shows Trump with small leads in both states, which would be keys to another Trump win in the Electoral College. Nearly every other pollster shows Biden with a comfortable lead.

Trafalgar’s Robert Cahaly says there is a hidden Trump vote that is not being accounted for in polls that show Biden on a glide path to the White House.

“There are more [shy Trump voters] than last time and it’s not even a contest,” Cahaly said, adding that it’s “quite possible” that the polling industry is headed for a catastrophic miss in 2020.

FiveThirtyEight’s (www.538.com) Nate Silver and Cook Political Report editor Dave Wasserman are among those deeply skeptical of Cahaly’s polling.

Both have dug into the crosstabs of Trafalgar polls and pointed to questionable breakdowns as evidence Trafalgar doesn’t know what it’s doing. For instance, the crosstabs in a Michigan poll, which are no longer online, appeared to show Trump leading Biden by 8 points among young voters, a Democratic stronghold.

“[Trafalgar] doesn’t disclose their ‘proprietary digital methods’ so I can’t really evaluate what they’re doing,” said Jon McHenry, a Republican pollster with North Star Opinion Research. “They’re far enough out on a limb that a year from now, we’ll all remember if they were very right or very wrong.”

FiveThirtyEight’s model gives Trump about an 11 percent chance of winning — roughly equal to pulling an inside straight in poker — after giving him about a 30 percent chance on Election Day in 2016.

Biden appears to have a more comfortable lead in the polls than Hillary Clinton had at this point in 2016. Polls show Trump is underperforming — in some cases dramatically — among the key coalitions that powered his 2016 victory. Biden is also a more popular candidate than Clinton.

McHenry said he does not think there are many “shy” Trump supporters who would lie about their intentions.

Rather, there is concern about a “skewed response rate pattern,” whereby Trump voters would be less likely to participate in a survey or answer the phone when a pollster call.

Still, McHenry noted that this would not be an automatic benefit for Trump. In Pennsylvania, for instance, he found Democrats were less likely to answer the phone than their registration would suggest.

“I can’t definitively say there is no response bias, but I’m skeptical of it, and it certainly wouldn’t be enough to explain the national deficits we’re seeing,” he said.

That said, Trafalgar is not the only contrarian voice in polling. Several other pollsters have joined it in arguing that other pollsters are missing pro-Trump voters.

Jim Lee of Susquehanna Polling and Research has been another proponent of the “submerged” Trump voter theory.

A recent Susquehanna survey of Wisconsin found Trump and Biden tied, making it the only poll to not show Biden in the lead in the Badger State since August, when the Trafalgar Group found Trump ahead by 1 point. In Florida, Susquehanna shows Trump leading by 4 points, while the FiveThirtyEight average gives Biden a 2-point advantage.

“There are a lot of voters out there that don’t want to admit they are voting for a guy that has been called a racist. That submerged Trump factor is very real,” Lee said this week on WFMZ’s Business Matters. “We have been able to capture it and I’m really disappointed others have not.”

The University of Southern California’s Dornsife Center is publishing results from its regular national poll but is also using parallel “experimental” questions asking people who they think their social contacts are voting for and who they think will win their home state.

In 2016, USC-Dornsife made headlines for being one of the few polls to show Trump leading nationally. Clinton ended up winning the national popular vote and USC later adjusted its methodology, saying it oversampled rural voters in the last election.

This time around, the USC-Dornsife poll shows Biden leading by 11 points nationally.

However, the race tightens to 5 points when voters are asked about their social circles and to 1 point when voters are asked who they expect others in their state will vote for. That survey suggests Trump would once again win the Electoral College in 2020

However, polls tend to slew a lot when it comes to Michigan.  The RCP average shows Biden ahead by 8.6%, while the Trafalgar poll shows Trump leading 49% to 47%.

Wisconsin is also a state where polls differ.  The Trafalgar poll shows Biden with a 0.4% lead (47.5% to 47.1%). However, the RCP average gives Biden a 6.4% lead.

However, for Biden, the road to the White House needs to go through Florida.  Since the Civil War in 1860, only two Democratic candidates have lost Florida, but won – Kennedy in 1960 and Clinton in 1992.

Trump won 306 electoral votes in 2016 – 36 more than the 270 needed to be elected.  That means Biden must win 37 electoral votes that Trump won four years ago.  If Biden cannot win Florida, he must sweep Pennsylvania, Michigan, and Wisconsin – without losing any other states like Minnesota.

Since Pennsylvania election results promise to be complicated, let us look at Florida in depth.

Florida has 29 electoral votes – the third highest number (after California and Texas).  A Biden win there would eliminate the need to win every electoral vote in the Pennsylvania, Michigan, and Wisconsin bloc.  Florida also more closely reflects the nation than those states of the upper Midwest.

Since there is a difference in statewide polls, let us look at some of the critical voter groups in Florida.

The Hispanic vote is critical in winning Florida, since it represents 17% of the registered voters.  Clinton won the Hispanic voter by a 27% margin in 2016 (62% to 35%).  The latest polls show Biden leading in this group by 11% and 7%.  Trump is at 43% which is the same percentage of the Hispanic vote that went to Republican winners Governor DeSantis and Senator Scott in 2018. (we need to reexamine Black and Hispanic polls this election in Florida)

Since Trump only won 35% of the Hispanic voter in 2016, if he can boost his vote to those shown in the polls (43%), that represents an increase in statewide Trump votes by 1.36% from 2016.

Trump won only 8% of the Black vote in 2016.  Although young Black voters between the ages of 18 and 44 give Trump 21% of their support.  However, older, retired Black voters are more likely to prefer and vote for Biden.

Trump is having problems with seniors, especially those between 65 and 70.  Since seniors represent 26% of the registered voters in Florida they are a critical voter bloc.  Trump won the senior vote by 17% in 2016, but this poll shows Trump with only a 10% lead now.

Another poll, however, showed Trump winning the over 70 voter age group by 59% to 38%.  Since 71% of Florida seniors are over 70, this may be a more important poll.  However, if the younger seniors are moving towards Biden, it could negate much of the larger Trump margins in the Hispanic and Black vote.

So, what do the Florida polls show?  The Trafalgar poll that was just released shows Trump ahead by 2.3%.  The RCP average shows Trump with a 0.4% lead.

 

What to Look for on election Night

If the polls prove to be inaccurate and states like Pennsylvania take days to announce results, where should one go to get a good idea of who is winning?

Each state has a Secretary of State website that will give the latest “official” results.  They will be more accurate than media reports or websites that may show some bias.

The best bet is to monitor the Florida Secretary of State website because the winner in Florida is likely to be the national winner.  The Secretary of State websites of Wisconsin, Michigan and Pennsylvania are also good sites to visit, although mail in ballots may take days to tally.

Although the Minnesota polls close later, this state may be worth following as it has a similar demographic profile to Wisconsin.  While Minneapolis and St. Paul are Democratic, the rest of the state is Republican.  A strong Trump showing here may indicate more Trump votes nationally than the polls show.  And, if Wisconsin is slow in delivering its results, a strong Trump showing in Minnesota may indicate how Wisconsin may end up.

The Wisconsin Secretary of State website would be the best choice of the three of the Upper Midwest states.  Their office has historically had fewer problems with mail in ballots and they probably will have results faster than Michigan and Pennsylvania.

If you are monitoring the Florida website, remember that Eastern and Western Florida are in two time zones and the Eastern part of the state, which will close its precincts first, is more Democratic.  Only after the Western part of the state has closed and has a chance to process a lot of their ballots, will there be an indication of the winner.

However, remember that there will be confusion with the massive number of mails in ballots and a plethora of legal challenges no matter how the election night results come out.

So, who do we think will win on November 3rd?  This time  we do believe in the general accuracy of the polls that showing Biden with a commanding lead, we think that the intangibles and historically accurate polls indicate a Biden win that could range from 275 electoral to a possible 335 electoral when the dust settle on counting all delayed votes.

Week of October 21, 2020

An American Civil War
Who Are the Would Players?

As the United States moves closer to the presidential election, the talk of a post-election civil war grows.  Both sides have threatened to not recognize the election results, but Trump was more vocal and threatening not to concede if he loose.

So, if a civil war erupts, who will the players be?  The US military is considered the most powerful in the world, so are there any potential organizations that could hold out?

Yes.

Remember that recent analysis by small arms NGOs indicate that American citizens are the largest owners of military grade firearms in the world.  According to an international small arms report, Americans own 47% of the world’s privately owned small arms.  For every 100 Americans, there are over 120 firearms – a figure that has obviously grown in the past few years as Americans are buying record numbers of guns in anticipation of post-election trouble.  Conservative estimates also put American private ammunition stockpiles in the hundreds of billions of rounds.

It is also important to remember that although some of these firearms are shotguns and small caliber guns for hunting small game, the American citizen has access to firearms usually reserved for the military or police in other countries.  Americans can buy high power sniper rifles used by many armies around the world.  They can also own large caliber rifles that can penetrate light armored vehicles like those used in Iraq and Afghanistan.  In fact, the American Army frequently buys commercial firearms that are superior to some of their own equipment.

This means military and police units do not have the traditional edge that they have in other countries that descend into a civil war.  It also means that they cannot move freely through hostile territory with impunity – an ambush is a constant possibility.

It also means that private military organizations will be more powerful than many might expect.

With that in mind, here is a review of the possible forces that could be arrayed in a potential American civil war.  We will look at military forces, police forces, and private militias on all sides of the political spectrum.

 

Government Forces

US Military.  Although the US military is probably the most powerful in the world, it will be unable to quickly end a civil war.  Those doubting that can only look at resistance to the American military in Afghanistan.

Remember that much of the American military is designed for large scale conventional combat, not a domestic guerilla conflict.  B-52 bombers are great for attacking another country but would be worthless in a civil war.

In a civil war, many military units will be tied down.  Expect the US Navy and US Air Force to relegate its security forces to securing its military facilities and nuclear forces, while maintaining an international presence.

The US Army will have ground combat units, but many of those will be dedicated to securing its military bases, critical infrastructure, and the Washington DC area.  They will also be reserved in case a foreign nation tries to take advantage of the situation.

The same holds for the US Marine Corps.

There are some civilian law enforcement agencies at the federal level.  The FBI has several specialized units that could take small targets, but don’t have the combat capable manpower to be a significant factor in a civil war.  And, there is a question by Trump supporters about where their loyalties lie, given the claim that they attempted to bring about Trump’s downfall both before and after the 2016 election.

If the FBI is employed, it would be in either protecting or taking targets in the Washington DC area.  They could be employed to capture Trump if there is a question of who won the election.

However, there are other law enforcement units that would be more “Trump friendly” One such unit would be the Border Patrol, which has good relations with Trump because of his tough immigration policy and his building of the border wall.  It was Border Patrol forces that went to Seattle and Portland to quell the protests when the FBI refused to act.

However, in a civil war, it is likely that the Border Patrol will focus more on aggressive border protection, intercepting arms shipments, and stopping people who want to cross the border.

While the federal police may remain neutral until a winner becomes evident, state forces may become more active, depending on the state government in power.

One example is the state national guard, which falls under the control of the state governor.  Although the Pentagon can activate them, as California’s refusal to let its National Guard patrol the border with Mexico, shows that state politics has a lot to do with their use.

It is quite possible that state national guard forces could step into a civil war situation.  For instance, California, which has an anti-Trump governor, could use its national guard to hinder or block US Army units on the move.  However, since many National Guard members were once members of the Army, the chance of a full-blown battle between the two is unlikely.

The same holds for Air National guard Units too – at least unless someone becomes too aggressive and starts shooting.

While these military units will be loath to attack other units, they could be readily used against militias.  However, as we noted earlier, unless the unit is a combat trained unit, they may find themselves out-gunned or out maneuvered.

That leaves only a handful of combat ready National Guard units available, which the governor may prefer to use in protecting state buildings.

State Police fall under the state governor’s control.  They could be used against local militias with little hesitation.  However, law enforcement is usually lightly armed and would find that the militia they will face will have more arms, heavier arms, and more ammunition.  Also, although the police must use firearms, they may highly likely be less proficient than the average militiaman.

City and county police have the same drawbacks in the type of firearms deployed and ammunition supplies.  Since county sheriffs are elected, they may be more responsive to the local wishes of the voters than other law enforcement agencies.

Another law enforcement group are Native American Tribal Police.  Treaties with the American government give them sovereignty and in a civil war scenario, they could try to secure their land from interlopers.  Some may try to gain more independence and gain recognition as an independent nation.  However, they suffer from the same lack of firepower that other law enforcement agencies have.

 

Government Forces Overview

Although the federal, state, and local forces are well armed, they may have little impact on events.  The American military is barred from civil action unless an insurrection has been declared and although large, would be stretched to protect key government facilities.  Commanders would find it in their best interest to stay away from acting, unless clearly legal and ordered by a superior.

Federal civil agencies, state police, and local police would not find the same constraints.  However, they are lightly armed and would find themselves without any tactical advantage in a civil war.

An example of how they might react in a civil war can be seen by law enforcement actions in the protests and some “riots” that have shaken the US in the past few months.  In most cases, they have stood by and focused on protecting government buildings.  Law enforcement isn’t trained in combat and most police would rather avoid any life-threatening combat, especially with fellow Americans.

All these non-military government units would also find themselves experiencing desertions.  Police with strong political views and police disagreeing with law enforcement actions are more likely to leave and either try to remain neutral or join a militia with their same views.

 

Militias

In this analysis, we call any non-governmental military unit, a militia. We will also differentiate real militias that have regular military training from potential militias that could form active units as conditions deteriorate.

As we noted earlier, American militias are better armed than those in other civil wars.  Depending on their size, training, and arms, they are probably more powerful than most law enforcement units and some non-combat military units.

Most militias tend to be secretive to prevent government informers from penetrating their group.  One example is the recently arrested “Wolverine Watch” militia unit that was arrested in Michigan last week.  It was two informers who were able to provide the evidence that allowed for their comrades’ arrest.

The result is that there are few militias that have national memberships.  One group, Oathkeepers, is not a militia, but its membership is former military and police, which makes it a potential militia if circumstance warrant.  It is right-of-center and was formed during the Obama Administration.  Its highpoint was its support of the Bundy Ranch protests in 2014.  It has deployed volunteer groups for hurricane relief and to protect private property in the riots of the last few months.

Although it is not an organized militia now, in a civil war, it could be the nucleus for one.  Since its members are former military or law enforcement, it has the experience.  It has the firepower and logistics support thanks to its national membership.  If the membership does become a militia, it could very well become the largest in the nation, with the capability to form several brigades.  However, it could take some time to become a militia capable of operating nationally.

Another group with a national membership is the III%ers.  Little is known about this right-of-center group, but they have been known to deploy across the nation at rallies, protests, etc.

Another unit that claims to have a national membership is the Colonial Marine Militia. Their membership appears to be strongest in the upper Midwest (Michigan, Indiana, Ohio, Pennsylvania, etc).  They deployed some units last weekend as the threat of action against Michigan militias became a possibility with the arrest of the Wolverine Watch militia.

The Colonial Marine Militia also claims to have an air wing, air mobile capability, mechanized units, and a sophisticated support organization.  How much of that is real is unknown.  However, if their claims are even partially true, they could pose a threat to most units, except for hardened American Army or Marine combat units.

Most militias are regional or statewide.  In fact, a review of websites indicates that most states have at least one operating militia.  Since they are public, they focus on emergency response, not military.  They are also assumed to be penetrated by informers.  Other units have been involved in controversy as members have been discovered with arrest records and unable to own firearms.

The quality of these units depends much on their leadership.  They are well armed and have statewide support.  How well they will do in a combat situation is unknown.  Given the current situation, we can assume that military tactical training has increased in the past few months.

An idea of the type of right of center militia units in the US can be seen in the German documentary that can be found on YouTube (titled A GERMAN VIEW: Trump warriors – highly determined and heavily armed militias in the US). It looks at the Pennsylvania Lightfoot Militia.  As can be seen, its gear and weapons are not quite different from American or European armed forces.  This militia unit has deployed across the East Coast.

While some units are already organized and training, some are just starting up.  The United American Defense Force is organizing defense forces in the Rocky Mountains.  They claim that as police units are being defunded or refuse to come to the aid of civilians, the average person must defend themselves.  It has some retired Special Forces – some who were in Benghazi during the 2012 attack.  These promise to be as organized as any regular military unit.

Similar groups are organizing locally as they perceived a threat of Antifa or BLM protests come closer.  These could very well become the backbone of the future right-of-center militia movement.

However, the left-of-center militia movement is also growing.  A few months ago, a new Black Nationalist militia called the NFAC fielded 500 armed members in a march in Atlanta.  Since then they have also shown up in Kentucky and Louisiana.  Although some downplay the threat because they have not mastered the safe use of firearms, they are growing and learning the tactical use of firearms.

NFAC is not the only Black Nationalist militia.  However, they are large, taking in recruits, and training for a potential civil war.  One of their demands is a Black nation that is carved out of the United States.

Another militia that has received some publicity recently is the Wolverine Watch, which saw most of its members arrested for planning to kidnap Michigan’s governor.  Their videos and emblems indicate their philosophy is anarchism.

It appears that the militia’s plan was to encourage a revolution.

Although they are not a right of center militia, they are from Michigan, which probably has more militias than other states, including the Wolverine Militia (not related to the Wolverine Watch), Michigan Militia, and the Hutaree Militia.

The big unknown in any potential civil war in America is the militias that have not been formed yet.  America has millions of veterans who know how to fight and hundreds of millions of firearms to fight with.  It is understood that there are probably over a thousand groups that are potential militias.  They have enough equipment and people to make up an operational fire team (the smallest military organization).  Depending on previous military experience or the ability of some veterans to train them, these units could deploy within days.  And they can expand as volunteers join and bring their own firearms.

Although there are many factors to preclude an American Civil War in the next few months, there is the real potential for a major conflict.  Clearly, there are dramatic philosophical differences that have deeply split Americans.  And there are the firearms to carry out that fight.

Civil wars are a “zero sum” game.  No one wants to fight a unit that is more powerful.  And average Americans can form units that would make any general think twice.

Week of October 12, 2020

Vice Presidential Debates take on more Importance this Year

The Vice-Presidential debate took place on Wednesday.  And, although it did not attract the attention that the presidential debates do, it had some important features.  Obviously, given Biden’s declining mental health and Trump’s recent Corona virus infection, one of these two Vice Presidential candidates could very well become president within the next four years.

The second feature is that it is quite possible that one or even both participants could be in the presidential debate in four years.

So, who won?  Although the responses covered the spectrum, the complaints about sexism and racism by many meant that Vice President Pence was perceived to carry the flag for Trump and act as good soldier for him.  While Harris managed to defend Biden and promote his case to be president without and project confidence and merit for being his choice VP.

The debate was much more restrained than last week’s presidential debate.  Interruptions were fewer and the moderator kept control.

Pence was a former congressman, state governor, and radio talk show host.  He came clearly prepared for the debate, He did use a few verbal “zingers,” but he was calm, showed a performance from Trump’s last week.

On the other hand, it was clear that Biden had picked Harris for only two qualities – she was a woman and Black.

Some thought that Harris, a former prosecutor, would do well in the debate – forgetting her poor performance during the Democratic primary debates, where her only outstanding moment was to call Biden a racist.  She started out strong with attacks on Trump’s handling of the Corona virus pandemic.  However, as she was pressed by Pence and the moderator, her deflecting response that Trump had packed the court system with Whites, might play well with her base of social justice supporters.

The final proof that the debate did not matter much of changing the status of the  campaign substantially was the post-debate stories that focused on the fact that a fly was seated on Pence’s head for about two minutes.

Did the debate cause any dramatic changes in the race?  No.  People vote for the top of the ticket.  However, for a few Republicans who are concerned about Trump’s “over the top” style, the thought that a calm, Vice President Pence is in the background may make them more willing to vote for Trump. And Harris was able to maintain the momentum for Biden campaign over Trump nationally and some key battleground states.

The future of the 2020 debates is unclear.  The Presidential debate committee has announced, without consulting the campaigns, that they would hold a virtual debate next week, where the candidates and moderator would not be in the same room for health reasons.  Trump has already turned down this format and has announced that he intends to hold a rally instead.  That leaves the debate’s future up in the air.  Trump does well in a rally format – much better than in a debate.

 

Gearing up for the Post Election Fight

Elections, campaign rallies, and vice-presidential debates are the “bright shiny” side of the picking of a new government.  Unfortunately, there are many potential outcomes (some promising civil unrest) that could come from a close vote on November 3rd.

Although there has been quite a bit of focus on the 20th and 25th Amendments as they pertain to the transfer of power from one president to another, it’s easy to forget that there are other laws and parts of the US Constitution that will impact the next three months.  And, no doubt, lawyers from both the Democrat and Republican sides are studying the laws and precedents.

Here are some of the issues that could delay proceedings or even change the course of the election and the picking of a president.

Congress can refuse to certify the results of the Electoral College.  This was an outside possibility in the 2000 election, where Bush barely won Florida.  However, Vice President Gore squashed any attempt to do this – possibly stopping civil unrest because of a contested election.

Although the state electors vote for the president, it is not an automatic process because the US Congress (both House and Senate) must certify the results in a joint session.  Unfortunately, the details are in US law and are much more complicated than the process briefly covered in the Constitution.

The president of the Senate (Vice President Pence) presides over the meeting and calls for any objections to the validity of the electors of any given state.  The objections must be signed by a member of the House and the Senate.  The two houses then caucus separately and if both houses agree that the electoral votes were not properly certified, they can be thrown out.

If there are two competing sets of electors, the Senate and House will also vote to determine the properly certified group of electors.

If the Senate and House cannot agree, one interpretation of the law is that the state’s governor makes the final determination.  Another interpretation is that the choice is up to the state legislature.

Here is an example of how that may play out in Michigan, a normally Democratic state that went narrowly for Trump in 2016.  If the Democratic Governor Whitmer declares the vote illegitimate and the four person board of Canvassers (evenly split between Republicans and Democrats) fail to agree, Governor Whitmer may block the vote of the Republican electors or even declare the Biden electors to be Michigan’s electors.

However, Michigan’s legislature is Republican, and they could vote to endorse the Trump slate of electors.  This would lead to two slates of electors from Michigan and force the Congress to decide which one is the valid one or if Michigan loses their electoral votes entirely.

If the Congress remains divided as it is now, the process of picking the valid electors can be delayed for a long time, which will cause voters to question the results.  This could lead to more civil unrest.

There is also the possibility, if the Congress tries to disqualify electors, that there could be a tie in the Electoral College, which would give the final choice to the Congress (with each state getting one vote based on the vote by the newly elected House and Senate delegation.  This would probably give the election to Trump since more state delegations are controlled by Republicans.

If one party takes control of both the Senate and House, they can refuse to certify any result that helps the other party win the White House – which could lead to civil unrest.

No matter what, the results would likely end up going to the Supreme Court, which is why Trump nomination of a SCOTUS justice is so critical and why Democrats are rabidly opposed to a vote before the election.

The potential for a tied SCOTUS vote is troubling if Trump’s nomination of Barrett is delayed.  A tied ruling by SCOTUS means the lower court ruling stands.  However, there is a good chance that there could be more than one court case going up to the Supreme Court and rulings by lower courts could be contradictory.  Again, civil unrest could be the result.

But what if there is no decision by January 20th?  Trump cannot continue in office and the Constitution’s 20th Amendment takes over.  That leaves the Speaker of the House – as next in the line of succession – as acting president until a president is chosen.

Since the Speaker of the House is chosen at the beginning of the session that choice will depend on which party has control of the House.  As it stands now, if the Democrats retain the House and reelect Pelosi, she will then become the acting president.  However, the Republicans could have the majority, or the Democrats could pick another Speaker of the House than Pelosi.

This does not solve the problem.  If Pelosi becomes acting president and the SCOTUS ruling gives the election to Trump, Pelosi could use her short time in office to sabotage a second Trump Administration by making political appointments and cancelling Trump executive orders.  A Pelosi Department of Justice might even try to indict Trump in the interim.  Again, civil unrest could be the result.

In the end, barring a clear win by either Trump or Biden, there could be considerable unrest.  It all depends on how hard either side wants to push.  Hillary Clinton has already told Biden he should not concede no matter what.  And there is question of what Trump would do with a questionable outcome.

There have also been reports that the Democratic Party may encourage the secession of California, Oregon, and Washington if Trump wins the electoral vote, but loses the popular vote.  This virtually guarantees a second American civil war.

What would Americans do if faced with a potential secession?  A YouGov poll says most Americans (56%) fear a Post-Election Civil War.

A more troubling poll released a week ago showed that 61% agree that the US is one the verge of another Civil War.  Additionally, most Americans are stockpiling food and other necessities for such civil unrest.

This poll was not the usual political poll, but a marketing poll that was trying to determine consumer attitudes.  “This latest finding, while not anticipated, is yet another example of an extremely bifurcated population,” said Jon Last, President of the Sports and Leisure Research Group.

“This is the single most frightening poll result I’ve ever been associated with,” said Rich Thau, President of Engagious, one of the three firms that did the survey.

“The current data shows an alarming trend that extreme political polarization of our country could be a powder keg ready to explode into a Civil War,” said Ron Bonjean, Partner at ROKK Solutions.

The same evidence is seen at the retail level.  Gun stores report that the demand for guns is so large that firearms and ammunition are flying of the shelves and widespread shortages are now common.  Groups that monitor firearms sales are reporting that 40% of these new gun sales are to people who never owned a firearm before.  This includes traditionally non-gun owning groups like Blacks, Women, and those under 30.

The FBI, which monitors firearms sales, reported that last month saw more firearms sales than any September in history.  That implies that Americans are readying for civil unrest and a possible civil war.

It seems that as the election grows near, the number of peaceful options seems to shrink.