A Week (and More) of Worry

David Bernell

 

On Friday, November 20 the state of Georgia certified its election results. So it’s now official that Joe Biden won the state by about 12,500 votes. Also on the same day two Republican legislative leaders from Michigan visited President Trump in the White House. He is asking the Michigan GOP to find some way to delay their election certification and reverse the outcome of the vote, which Biden won by about 150,000 votes.

 

There are five states that Donald Trump won in 2016 and Joe Biden has won in 2020: Michigan, Pennsylvania, Wisconsin, Georgia and Arizona. In all of these states there are Republican controlled legislatures. In all but Arizona, large numbers of Black voters concentrated in large urban areas voted overwhelmingly for Joe Biden. In Arizona, it was Latinx voters around Phoenix that voted largely for Biden. The Trump strategy is to call into question these votes and the outcomes they produced, as these all provided more than enough votes to Biden to provide the margin of victory. The racist nature of these challenges – targeting the votes of mostly Black and Latinx voters – is obvious, reprehensible, and potentially explosive.

 

Not counting these votes, or at least producing enough delay in counting these votes, works to Trump’s advantage. Lack of certification, or even significant delay in certification, could prompt a possible opening for the legislatures in these states to select electors to the electoral college. If these actions were to be carried out successfully in enough states, they could possibly reverse the results of the election. Trump needs 38 more electoral votes than he currently has. Reversing the outcome in any three of the five states Trump is targeting would produce a Trump victory.

 

Pulling off a victory for Trump is a longshot. Moreover, the ham-handed, amateurish nature of how the Trump team is waging the legal battles, along with the actual voting results, provide some assurance to fans of Joe Biden – and of democracy – that Trump won’t be successful in these political battles taking place outside the courts.

 

Still, the coming ten days will be one of worry for Democrats. Trump has a lot of his voters (and maybe GOP officials too) convinced that he actually won the election, and that the results we have now are fraudulent. Moreover, as the country is learning, the process of making election results official requires a number of steps by a many state and local officials around the country. Voters don’t know who these people are, even in their own communities, and most Americans don’t even know these jobs exist. But they are crucial to turning votes on election day into actual results that stick. Between November 20 and December 1, all of these five key states in being targeted by Trump are scheduled to certify their elections.

 

So what is the Trump strategy? Work the refs, that is, the officials in the county and state governments who can take what is usually a routine process of completing the paperwork and instead make it a political process to stop the vote certification. Two Republican members of the Wayne County Board of Supervisors at first refused to certify the results in their county, which included the city of Detroit. After an outcry these two members reversed their votes a few hours later. Then the next day, when it was too late, and after President Trump called one of them, they both tried to rescind their votes, but the deed was done. So attention is now turning to the state-level officials, since the effort at the county level failed.

 

We can expect this type of challenge from Trump every step of the way: Try to get GOP county officials to challenge Democratic votes. If that doesn’t work, try it at the state level. At the same time, try to get enough Republican legislators in these states open to the idea that they can and should ignore the votes cast in their state and simply approve a slate of Trump electors to the electoral college.

 

If the states settle on their electors by December 8, which is known as the “safe harbor” date, then federal law largely considers the matter settled and not easily subject to legal or Congressional challenges. So keeping the current legal and political challenges going – and sowing further uncertainty in the vote count – in states beyond this date provides an opening for Trump. He would then make an even more concerted effort in any states where this happened to have GOP-controlled legislatures settle the matter by appointing Trump electors.

 

Failing that strategy, Trump will turn to December 14, the day the members of the electoral college actually meet in their respective state capitals and cast their 538 electoral votes. The voting results, if followed in the selection of electors, will give Joe Biden 306 votes, and Trump 232, more than enough for Biden to win. The Trump campaign might try to persuade some electors to vote for him instead of Biden, but getting a victory by turning a large enough number of “faithless” electors is in reality an impossibility. In addition, several states make this action illegal on the part of their electors.

 

Failing that, Trump can be expected to turn to Congress, which is scheduled to count and certify the results of the electoral college vote on January 6. This is three days after the new members of Congress are sworn in. Both the House and the Senate have to certify the vote, so Trump may very well turn his efforts to the Senate, which will have a GOP majority at that time. (The runoff election in Georgia for two Senate seats happens on January 5, so even if Democrats win both seats, they won’t be in Congress for the electoral vote certification.) Trumps’s goal at this point would be to have the Senate reject the electoral votes in an effort to force the issue to the House of Representatives, which is Constitutionally mandated to select the president in the event no one wins an electoral college majority. Since the House votes with one vote per state, not one vote per member, the election would likely go to Trump, since the GOP has a majority in the delegations in 26 states.

 

In other words, this whole mess is far from being over. There is only a very small chance that Trump could pull this off, but it’s not impossible.

 

In the midst of a pandemic, vote by mail concerns, in-person voting concerns, numerous lawsuits about election rules, worries about foreign interference, long lines, disenfranchisement of Black voters, we have pulled off an election with high turnout, more voters than ever, and a Department of Homeland Security that says this was our most secure election ever. I’m hopeful and expecting that we can also pull off a post-election process that preserves the integrity of the vote as our essential democratic prize.

 

Still, until and unless Republican members of Congress grow a backbone and tell Trump that it’s over and he lost – and we haven’t seen any backbone in the GOP over the past four years so it’s safe to assume they won’t be finding strength anytime soon – the country will be dealing with a series of moves by Trump over the next several weeks to invalidate and reverse the results of the election.