In the middle of the night, the news arrived that the President and the First Lady tested positive for COVID-19. For this moment it’s not about politics, it’s about life. I wish them well.
Brooks Brothers Riot
Back in the “good old days” five years ago, this story might be written, but no one would believe it.
The Florida election in 2000 was crazy. Lawyers “rioted” in the Palm Beach County Board of Elections (to throw off the re-count). A candidate’s own brother certified Florida’s election results. And even after all of that, we still believed in the integrity of the electoral process.
But think about that for a minute. It wasn’t the “butterfly ballots” where Gore votes became Nader votes. And it wasn’t the “hanging chads” where bug-eyed counters analyzed each punch-ballot. No, it was Governor Jeb Bush, un-recused, who certified that his own brother George won the over six million vote Florida election by five hundred and thirty seven votes. That’s nine hundredths of a percent. The Supreme Court, in a partisan five to four vote, agreed.
And Al Gore gracefully conceded the election, and George W. Bush became the President. Ah, those were the good old days.
Jeremy’s Nightmare
I just watched former Obama official Jeremy Bash on MSNBC. He was the Chief of Staff at both the Central Intelligence Agency and the Defense Department. He said that no matter how the election results really turn out, he anticipates that we will fight about who becomes President until Inauguration Day in January. It’s almost Churchillian: “We will fight them in the state capitals, we will fight them in the Electoral College, we will fight them in the Court and in the Congress; we will never surrender”: Hoo Boy.
So here is the Bash scenario. On election night, the results are close between Trump and Biden. Because of the COVID pandemic, there are millions of mail-in ballots. Several states require that all ballots be counted after the polls have closed. A few don’t even allow for the mail-in ballots to be certified for count until Election Day itself. That process, verifying of signatures and other technicalities will delay the final count for several days.
Trump gains an Election Night lead and declares himself the winner. He then moves to invalidate all of the remaining ballots to be counted. Thousands of Republican lawyers pour into state and federal courts. They demand immediate “cease and desist” orders delivered to the local Boards of Elections to stop the count. Republican Governors in pivotal states like Arizona, Florida, Georgia, Iowa, Ohio, and Texas step in to stop more counting. They immediately certify electors to the Electoral College based on the Election Night count only, and the whole issue ends up in a Federal Court system packed full of Trump appointees.
Democrats Response
Even if Biden were to lose all of those states, the other “swing states”: Michigan, North Carolina, Pennsylvania and Wisconsin combined with solidly Democratic states like New York and California, would still be enough to win. All have Democratic Governors. But here’s the problem with that: Republicans control the state legislatures of Michigan, North Carolina, Pennsylvania and Wisconsin. Just as those Democratic Governors had difficulty with regulating COVID, so the legislatures might step in to try to take control of the vote counting process. Just yesterday the Republican Pennsylvania legislature voted to establish a “committee” to “oversee” the election.
Governorships are pivotal to certification of Electoral votes under Federal law. The McConnell plan of stacking the Federal Court system, particularly at the Appellate level and Supreme Court, puts Trump appointed Judges throughout the system. And just to make matters even worse, if there is a tie in the Electoral College, the House of Representatives breaks the tie. But unlike every other vote they take, a Presidential vote is by state, not individual member. So California’s fifty-two Congressmen count for only one vote. And that counts is the same as the single Congressmen from Wyoming and Alaska, and the other five states with only have one Congressional Representative.
Counted that way, the current Congress has twenty-five Republican “states”, twenty-four Democratic states and one state (Pennsylvania) tied. The actual “tiebreaking” vote would be the next Congress not this one, but that unique balance is unlikely to change.
Just a Dream
We are looking at what would be a national nightmare and perhaps the end of the democratic experiment called the United States. What should voters do?
First: get ready to pressure Republican Governors in those swing states that seem to be wavering to support their own electoral processes. It may take non-violent protests in the streets to keep the count going. The Republicans were able to stop the Palm Beach count with the “Brooks Brothers Riot”. In spite of the COVID pandemic, it may require Americans to protect and continue those counts and our Republic.
Second: we can still dream that some Republican leaders will stand up for democracy, and against a Trump overthrow of the Republic. But there are those of us, including me, who have been holding our breath waiting for this for nearly four years now. Let’s hope that’s not our only answer.
But third and most important: vote. An overwhelming win for either candidate would be difficult to ignore, even for Republican Governors. For example, Ohio is likely to have almost all of their votes counted within eight hours of the polls closing, including the absentee ballots. So a Biden win in Ohio would be difficult to ignore, or overturn. And if Biden wins Ohio, it puts pressure on all of the other “swing” states to accept a Biden victory.
A landslide Biden win would make all of these undemocratic tactics moot. For Trump to claim an election night victory, he has to have some point where he has the lead. Solid Biden wins in the former “blue wall” states would prevent that from happening. And that might make all of the nightmare scenarios just fantastical stories.
Let’s hope so.
