Thursday, September 24, 2020

How The Trump Campaign Will Get Rid of Those Pesky Biden Mail-in Ballots

“It’s not the people who vote that count. It’s the people who count the votes.”

Okay, it turns out that the above quote, attributed to Soviet Union dictator Joseph Stalin (pictured), was not something he actually said.  But Stalin did say something very similar as have other dictators such as Nicaragua's Anastasio Somoza:

"Indeed, you won the election, but I won the count." June 17, 1977.

During a press conference yesterday, President Trump said he would not commit to a peaceful transfer of power if he loses the election.  That naturally was the focus of most news stories, but I was more concerned by this part of the exchange:

"Well, we're going to have to see what happens," Trump said. "You know that I've been complaining very strongly about the ballots, and the ballots are a disaster." 

"We'll want to have — get rid of the ballots and you'll have a very — we'll have a very peaceful — there won't be a transfer, frankly. There'll be a continuation."

"Get rid of the ballots."  Donald J. Trump, President of the United States, September 23, 2020

Trump is not talking about the in-person votes cast on Election Day, which votes are expected to favor him.  The "ballots" Trump is talking about are the mail-in ballots which will be counted post-Election Day, votes which polls show will heavily favor Biden.  Given the difference about when in-person ballots are counted versus those cast by mail, Trump will likely have the lead in enough states on Election Day to win the Electoral College.  Trump will declare himself the winner and will say that any change in the Election Night result is evidence of fraud, that Biden and the Democrats are trying to steal the election.  And you know what?  Every last person in the Trump cult will believe the President.  

What happens next is that you are going to have Trump poll watchers and Republican lawyers challenging the validity of almost every single mail-in vote.  There will be an assortment of reasons, but the one that will call into question the most ballots is "signature mismatch," that the voters signature on the mail-in ballot envelope does not match what the local voter registration office has on file for that office.  I have emphasized on this blog repeatedly that people's signatures change over time and many, if not most, voter registration offices do not update the voters' signatures to reflect that change. 

You are going to see the dispute over these mail-in ballots end up in state and federal courts.  States have 35 days after November 3rd - until the December 8th, the so-called "safe harbor" deadline - to settle these disputes and certify which slate of electors (Republican or Democrat) will be casting the electoral votes for that state six days later, on December 14th.  

Let me pause for a quick note about how the Electoral College works.  Before the election, the Republican and Democratic parties (as well as any independent presidential candidates who qualified for the ballot in that state) identify a list of loyalists equal to the number of federal Senators and Representatives for that state.  Whichever presidential candidate wins the popular vote in that state, his or her party's slate of electors will be the ones voting on December 8th.  All but two states in the United States do this on a winner-take-all basis.  So in Indiana, if Trump wins the election here, regardless of the margin, the 11 Indiana electors voting on December 14th in Indianapolis will be those previously identified Republicans who have agreed to be electors.

Now here is where it gets tricky.  The Constitution leaves it up to state legislatures to decide which electors will be casting votes for that state.   However, after a few elections, states passed laws so that selection of the slate of electors would reflect which presidential candidate won the popular vote in that state.   But those laws can be easily changed.  State legislators, faced with the prospect of a disputed popular vote count in their state and nearing the December 8th safe harbor deadline, could take that authority back and pick the slate of electors themselves.   It is not clear from the U.S. Constitution that a state governor could veto this legislative decision as the Constitution appears to leave the matter exclusively to state legislatures.  

To clarify, if in one of the swing states the vote is close and disputed, the state legislature could override the popular vote and decide which party's electors will be voting for President.  So let's look at the swing states, the electoral votes each has, as well as which party controls the legislature and governor's office:

Arizona (11):  Republicans control both chambers.  Republican governor.
Florida (29):  Republicans control both chambers.  Republican governor.
Georgia (16): Republicans control both chambers.  Republican governor.
Iowa (6):  Republicans control both chambers.  Republican governor.
Michigan (16): Republicans control both chambers.  Democratic governor.
Minnesota( 10): Republicans control Senate, Democrats control House.  Democratic governor.
New Hampshire (4):  Democrats control both chambers.  Republican Governor.  
North Carolina (15):  Republicans control both chambers.  Democratic governor.
Ohio (18) : Republicans control both chambers.  Republican governor.
Pennsylvania (20):  Republicans control both chambers.  Democratic governor.
Texas (38): Republicans control both chambers.  Republican governor.
Wisconsin (10):  Republicans control both chambers. Democratic governor.

If a state's dispute over ballots is not resolved by the December 8th, i.e. the safe harbor deadline, Congress decides which slate of electors to accept from that state.  In the case (which is likely given that Democrats control the U.S. House and the Republicans the Senate) both chambers do not agree, that congressional tie is broken by the state's governor.  This procedure is outlined in the Electoral College Act of 1887, a law which was enacted to try to prevent lengthy post-election vote counting disputes such as that which afflicted the 1876 presidential contest.  In that election, Republican Rutherford B. Hayes was deemed the winner by Congress only after a deal was struck between Republicans and Democrats to end federal oversight (often referred to as Reconstruction) over the states of the Old Confederacy in exchange for giving Hayes the presidency.  

For more information on how this all works, see this Michigan Law Review article.

Now the 1887 law may or may not be constitutional.  Yesterday, Trump indicated he wanted his Supreme Court nominee confirmed before the election so she would be in a position to vote on any post-election litigation that reaches the Court.  One would think the admission by the President that he is appointing a justice to help him win re-election would obligate the new justice to recuse herself in any such litigation.  But we, alas, now live in a Trumpian world in which ethics and conflicts of interest do not matter.

But I digress.  Let me return to the topic of discussion - the counting of votes.  Let me just restate the President's words:

"Get rid of the ballots."  

That should send chills up your spine.

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