Trump demonstrates why we should limit the powers of lame-duck presidents

My latest appears in The Hill.

 Constitutionally, U.S. presidential power is all-or-nothing. Either one is president of the United States

with the full scope of authority, or one is not, lacking any formal powers. This is the reality even after elections with lame-duck presidents and presidents-elect during transitions.  This needs to change.

As with so many other issues, Donald Trump’s presidency has revealed flaws in our   constitutional design, one created for a horse-and-buggy era, or when it was assumed that the leaders we selected would observe certain unwritten rules about the use of presidential authority.  Presidential transitions are one of those areas that need fixing.

The Constitution’s Framers likely gave little, if any, thought to presidential transitions in 1787.  They called for the Electoral College to pick the president, but there was no uniform date for when the electors would vote and no explanation about when a president would take office. George Washington took office on March 4, 1789, simply because that was the date the Constitution took effect. That date stuck until 1933, when the 20th Amendment set Jan. 20 as the date for a new presidential term to start. That amendment and the Uniform Time for Federal Elections Law, which dictates that the presidential election will occur on the first Tuesday after the first Monday in November, mean that between Election Day and inauguration day nearly two-and-a-half months will pass. This means that a person rejected by voters still enjoys the full perks of presidential power long after being voted out of office, while the newly chosen leader must wait to act.

It is not that way in other countries. Across the world, either transition periods are dramatically more brief in time, or the existing leaders are limited to performing caretaker functions. Yet handoffs of presidential power in the United States are different. While the Presidential Transaction Act of 1963 provides funding and resources for new presidents, it does little else.  Our Constitution leaves it to the incumbent and the president-elect to work out transitions. Historically, all but for 1860 with the election of Abraham Lincoln and the Civil War, the transitions have been mostly uneventful.

But outgoing presidents often have used the lame-duck period to cement in their legacy — for good and bad. They issue executive orders, grant pardons, or take other actions. Some would argue they use the opportunity to act without political constraints to do things they believe are good for the country but that may not be popular — again, such as issuing unpopular but merciful pardons, or invoking the Antiquities Act to preserve federal lands from development.

Yet President Trump’s last acts as president appear to be more destructive than good for the country. Witness his actions to try to overturn the election results, and his persistent refusal to cooperate in the transition by denying President-elect Biden’s team access to vital intelligence and other information that is important to national security. Also consider his decisions to veto a military budget bill, impede a pandemic relief bill, issue pardons to his supporters who broke the law, executive orders on the environment, and perhaps make foreign policy decisions that affect U.S. interests. At best, lame-duck presidents should not be able to make such major decisions. At worst, these appear to be efforts to sabotage an incoming administration before it gets started. 

One can hope that Donald Trump is a one-of-a-kind president and his exit is unique. But he is only the most extreme example of a problem regarding presidential transitions that should be fixed. The process of selecting a president involving the Electoral College may foreclose a shorter transition period — but even if it could be briefer, the use of lame-duck powers and the absence of authority for the president-elect persists.

By law, and perhaps constitutional amendment, these problems might be fixed. For example, we could limit lame-duck executive orders, presidential vetoes, judicial and other appointments, and pardons. Incoming presidents should have a say over post-election legislation and be given automatic access to intelligence, and perhaps even authority to take action in some situations.

The Founding Fathers were smart but they failed to think about presidential transitions of power.  Many presidents have sought to use post-election time as a last-ditch effort to cement their legacies, and Trump more than most has demonstrated the problems with leaving the hand-off of power to goodwill and chance.

The 2020 US Presidential Race Ain’t Over Until It’s Over (it’s over)

 

American baseball icon Yogi Berra once declared “It ain’t over till its over.”  Donald Trump,

Republicans, and his supporters can protest all they want, but by the end of December 8, 2020, the presidential race is over and Joe Biden has won… fair and square. It is now time to follow the sage advice of the American actor John Wayne

December 8, 2020 was a momentous day in the 2020 US presidential cycle.  The US Supreme Court rejected Trump’s request to hear  his appeal of the  vote results in Pennsylvania. At both the federal district and court of appeals levels Trump’s claims of voter fraud were rejected.  In the case of the latter court, a Trump appointee wrote the opinion declaring that there was no evidence presented that there was wide spread voter fraud in that state’s election and therefore there was no case.  In turning the president’s appeal down today, the Supreme Court effectively affirmed that point.

Additionally, December 8, is important for another reason.  Under 3 U.S. Code §5, states that have settled on the method of resolving  electoral college delegate disputes before the election and have the disputes settled six days before the electors meet would have them presumptively upheld by Congress on January 6, 2021 if there were any disputes.  This law is known as the “safe harbor” provision. With California having certified its election results on December 4, 2020, that put Biden at 279 electoral votes, and with the passing of the  safe harbor date,  states are free to cast their electoral votes on December 14, Biden will have enough electoral votes to win, and Congress will be obligated to certify the electoral vote count on January 6, 2021.

There is nothing that can stop Biden’s victory now.  The Texas Attorney General’s lawsuit on December 8, seeking to prevent several states from certifying their electoral votes  will go nowhere. The State has no legal standing to challenge what other states do with their electoral votes.  The Constitution gives states nearly complete discretion to allocate their electoral votes in ways they see fit.  Just this spring in Chiafalo v. Washington, --- S.Ct. ---- (2020), the Supreme Court affirmed that point.  Additionally, for anyone who understands American law, Texas has no legal standing to bring the case—it has suffered no legal injury.  The lawsuit is grandstanding at best.

            But then again, all of the lawsuits have been that.  Trump and his allies have lost every substantive lawsuit they brought.  Across state and federal courts, and even with state legislatures, he has had multiple opportunities to show fraud and failed.  The reason why he has failed is simple—there was no proof of fraud.  The courts have adjudicated that, recounts have proved that, legislative hearings have shown that.  You can’t prove what does not exist.

            December 8, was the last hurrah for Republicans.  That is why in states such as Minnesota there were final claims of voter irregularity and fraud.  It was one final effort to appease a base of voters unable to accept the fact they lost in a fair election.

            Ross Douthat’s bloated  New York Times essay offers many reasons for the many people who cannot accept that Trump lost.  But simply stated, cognitive dissonance, confirmative bias, partisan political polarization, and a  pandering fragmented media  in search of audience (and therefore telling them what they want to belief and not what they should know) and profits are the  causes.  It also has not helped that Trump himself is still in denial.

            What now?  Back in 1960 the American actor John Wayne was a conservative who voted for Richard Nixon. But in 1960 he said this after the election of John Kennedy: “I didn’t vote for him, but he’s my President, and I hope he does a good job.”  John Wayne had many faults, but he was an American first and  not a sore loser.  So was  Al Gore and Hillary Clinton in 2000 and 2016 when despite winning the popular vote for the presidential election they lost the electoral vote and the presidency to George Bush and Donald Trump respectively.

            It is time for Mitch McConnell and all the other Republicans in the US to emulate Wayne, Gore, and Clinton.  Put the country ahead of  partisanship and pettiness.  Recognize for good or bad  Joe Biden won fairly, and move on.  It’s over more than ever.

The Ethical Obligation of Trump’s Legal Team to Give Up

 Donald Trump’s efforts to litigate himself to a second term are effectively done.  Hastening the end are

two things.  One, the reality that the voter fraud claims on which  he stakes his litigation strategy are baseless.  Two,  something that every first-year law student knows, the ethical and legal obligations of  (Trump’s) attorneys not to press arguments in court which are meritless or  frivolous.   This includes Rudy Giuliani as Trump’s legal manager.

There was never much of a chance Trump would succeed in overturning the presidential election results in court.  There was a fantasy that the legacy of Bush v. Gore that led to the Supreme Court handing Florida and the 2000 presidential race to George Bush would prevail again.  Yet that case was about varying standards to ascertain voter intent in an  election in one state where the margin between George Bush and Al Gore was simply a few hundred votes.  Bush’s legal term raised legitimate constitutional questions about Equal Protection and treating different voters differently.  Winning in court in that one state gave Bush the electoral votes he needed to win the presidency.

Here Trump is raising  questions about widespread voter fraud across multiple states where Joe Biden’s margin of victory is thousands if not tens of thousands of votes.  Trump would have to overturn election results in at least three states.

The basis of Trump’s arguments is not about voter intent but assertions of voter fraud and the counting of ballots.  Claims of voter fraud have been a Donald Trump mantra for years and also the basis of a partisan dispute over voting rights since at least Bush v. Gore.  Republicans are absolutely convinced there is widespread voter fraud in America and have made it part of their political rhetoric to motivate their base  and arguably to suppress voting,.  This is true even though  they have failed to produce an iota of credible evidence that widespread voter fraud exists and that it has affected the outcome of elections.

The Supreme Court in Crawford v. Marion County, 553 U.S. 181 (2008) gave credence to the voter fraud rhetoric when it upheld an Indiana voter identification law as a means to detect and deter voter fraud, even though the State conceded there it had no recorded and provable instance of such fraud in its entire history.  The Crawford case was a facial law suit that challenged the very validity of the ID law and therefore no evidence of fraud  needed to be produced by the State to win.

Election law suits are a different matter.  To successfully claim voter fraud, throw out votes,  or overturn election results one needs evidence.  Challengers carry the burden of proof and persuasion to show fraud—mere assertions are not enough.  In state and federal courts there are clear rules of evidence that define what is admissible, with mere hearsay, speculation, or rumor not enough.

Trump’s legal team is losing in court because it is unable to meet the legal evidentiary standards to prove fraud.  The rules are not stacked against the president and judges are not corrupt.  The problem is Trump does not have a legal case.  In many ways  his law suits regarding fraud are welcome—they finally put on trial claims of voter fraud that were untested in Crawford and judges are rejecting the arguments as baseless.  So are  many Republican officials who administer elections.  This should put to rest serious claims about voter fraud.

Trump’s lawyers may recognize the baselessness of the fraud claims and in recent days several legal teams have resigned, including in Pennsylvania.  They had to, possibility because they recognized that to press them further meant they could face disciplinary sanctions. 

Rule 11 of the Federal Rules of Civil Procedure bars attorneys from filing cases which are frivolous,  lacking evidentiary support, or which are meant simply to  “harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  If such litigation persists, courts may sanction attorneys.

Similarly Rule 3.1  of the Model Rules of Professional Conduct—the ethical code for lawyers—bars attorneys from bringing frivolous claims.  Every state has a version of Rule 3.1 and it imposes a sanctionable ethical obligation on attorneys that could potentially lead to disbarment.

Trump may make unfounded assertions of voter fraud and press them to the public. His attorneys cannot not.  Moreover, to the extent that Rudy Giuliani in managing Trump’s legal strategy is furthering frivolous assertions, he too could face  Rule 11 and Rule 3.1 sanctions.

Courts have been generous in letting Trump’s attorneys press their arguments and give them a hearing.  But they have failed to provide proof of fraud that will affect the outcome of the presidential election in even one state, let alone the multiple ones required to change the outcome of the election.  Attorneys’ ethical and legal obligations not to press meritless claims are now bringing a halt to the president’s legal strategy.

T-Minus and Counting: The Final Days to the November 3, US Elections

  With any luck the 2020 US presidential elections will be over on November 3,.  At least the voting

will be done.  Whether the voting counting and post-election litigation will be done depends on the margins of victory for either candidate in a handful of swing states.  Already the most heavily litigated election in US history with nearly 400 lawsuits so far, a close election could trigger far more.

What is the state of the election today?  Biden will easily win the national popular vote.  He has had a stable six to eight point lead for six months.  Contrary to those who claim to the contrary, the national polls were accurate four years ago and there really were no hidden Trump voters.  The issue was not surprise Trump voters so much as Democrats staying home in critical swing states and areas across the country.  Suburban women, those under 30, and people of color stayed home on election day.

It again is coming down to a cluster of a few swing states that will decide the election.  Remember, it is not the national popular vote but the race to 270 electoral votes that decides the election.  Again, four years ago the polls in the swing states were accurate.

Back in January 2020 I did my initial calculation of where the presidential race was.  I assumed back then it was Biden-Harris as the Democratic ticket–no real surprise.  I estimated that they were nearly certain to win California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, (overall state) Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York,   Oregon, Rhode Island, Vermont, Virginia, and Washington.  This is a total of 19 states plus the District of Columbia.  In the case of Maine, Democrats probably would overall win the state and three of its four electoral votes.  The other electoral vote, which is for the Second Congressional district, goes to the Republican.  Biden started with 222 electoral votes.

Donald Trump I predicted would win 24 states plus part of Maine.  These states are  Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, (Second Congressional District), Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.  Trump started with 205 electoral votes.  

Yet there were seven remaining states–Arizona, Florida, Michigan, Minnesota, North Carolina, Pennsylvania,  and Wisconsin–totaling 111 electoral  votes, which were too close to call and they were the swing states that will decide the presidency.

The race was always about these seven states.  More specifically, they were about what would happen in 11 counties in these swing states.  And more specifically, the fate of the election hinged upon 10% of the undecided voters in these 11 countries across seven states that would decide who gets to 270.  In sum, the four numbers that would decide the race were 10/11/7/270.

Back in January I then made some guesses, assigning Arizona (11), Florida (29), and North Carolina (15) to Trump.  This put Trump at 260.    I then assigned Michigan (16), Minnesota (10), and Pennsylvania (20) to Biden.  This put him at 268.  Wisconsin was the holdout with ten electoral votes and too close to call then.

Where are we now?  Some states have become more competitive, such as Georgia, Iowa, Ohio, and maybe Texas.  Polls suggest close races there but a lot depends on turnout.  These are all states Trump should win and the fact that a state such as Georgia or Texas is possibly in play is not good news for the president.  There really are no states that Hillary Clinton won in 2016 that are in serious play now.  I have long argued Minnesota was becoming a swing state but do not think so now.

Where I see the race coming down to are the three states that decided it four years ago–Michigan,

Pennsylvania, and Wisconsin.  There, a margin of 85,000 votes decided the election.  More specifically, had Clinton received 85,000 more votes across these three states she would be running for re-election now.  Notice I did not say had 85,000 votes switched.  There are few swing voters anymore.  Clinton lost in these three states because she did not campaign there and took Democratic voters for granted.  

Biden is campaigning in these states.  The critical counties in these states are showing dramatic surges of Democratic-leaning areas casting ballots.  Democrats are motivated to vote.  This is especially the case for college educated suburban women who are key to Biden’s victory much like they were key in the 2018 midterm elections.  There are also signs of young people under 30 and people of color motivated to vote.

Trump needs his base of white males without college degrees to vote in much higher numbers than four years ago.  That may happen but polls are suggesting that elderly voters who supported him four years ago are not as likely to vote for him this time because of the pandemic.

As I see it the election is coming down to the intersection of the turnout curve of white working class males without college degrees versus suburban college educated women in Michigan, Pennsylvania, and Wisconsin.   This is what decides the electoral college victory. Right now the reputable and reliable polls have Biden up in these three states, portending a victory. 

Of course, these numbers have to be discounted by the probability of lawsuits and margin of victory.  If young people and people of color turn out then it is possible in these three states the margins are high enough to withstand possible legal challenges.  Additionally, if turnout does surge and states such as Georgia, Ohio, or Texas flip then it is even less likely lawsuits will matter.

Trump, Biden, and the State of the US Presidential Election Today: It ain’t over till…

 

With a little more than a week before the official US presidential election on November 3, the race

between Joe Biden and Donald Trump is both over and too close to call at the same time.   The reason for this is that while national polls show a huge lead for Biden, the race for the electoral college vote in the critical swings states remains close.  It is within this context that the second presidential debate on October 22, took place.

The US presidential race is over in the sense that  as has been true for several months, the national polls put Biden in an approximately eight-point lead over Trump, with specific surveys placing the number of undecided voter  between four and five points.  There is no question that Biden will repeat Hillary Clinton’s 2016 performance and beat Trump in the national popular vote by at least 3,000,000 votes.  Moreover, more than 48 million individuals have already cast their ballots prior to November 3.   Given all this, there appeared to be fewer voters to persuade or move when the second debate occurred than at a similar time four years ago when there  were both far less early voters and more undecided voters.  All this suggests a race that looks like it is over.

            But the race is still close.  Remember that the US presidential election is not decided by the popular vote but instead it is a race to win the electoral college.  It is a 50-state race to get to 270 electoral votes.  With 48 of the 50 states awarding its electoral votes on a winner-take-all system based on the popular vote within  them, the race is effectively over in 43 states.  There are only seven states that really still matter and which will decide the next president.  They are Arizona, Florida, Michigan,  Ohio, North Carolina, Pennsylvania, and Wisconsin.  Here the race is closer, with Biden enjoying a slight lead in most of the swing states, but already 23,000,000 ballots have been cast early.  In these states, the percentage of undecided voters are around five percent. Again, far less than four years ago.  Typically, in the US undecided voters  when they decide vote against the incumbent, as was true four years ago when Clinton effectively ran as the incumbent seeking to succeed Barack Obama as a third-term Democrat.  None of this should be good news for Trump.

            Yet there is a political divide over voting in the US.  Democrats are voting early and  in strong numbers, at least based on the location where the votes are coming from.  Trump has criticized early voting and we may yet see a heavy Republican turnout on election day that could give him a victory on November 3.  There are also the probable legal and court challenges regarding early voting that might disqualify many early votes. Also Republicans are doing a better job registering new voters compared to Democrats and this may not show up in the polling. The point being that while the numbers and odds favor Biden, it is still not over yet.

            Trump needed the final debate to change the direction of the election.  It did not do that.  Trump continued to speak to his political base hoping to motivate them to vote in record numbers.  He also needs Democrats to stay home and not vote like they did back in 2016.  While this debate may have helped motivate his already activated supporters even more, there is little indication that  he was able to convince Democrats—including the critical college educated suburban women and African-American voters—to stay home.  Biden kept the focus on Trump’s vulnerabilities such as the pandemic, Trump landed good punches on Biden, race, and crime, but ultimately it is doubtful that this final debate did much to change the course of the election.  It is over in so many ways but also very close among the few voters in the few states that matter.

Covid-19, Presidential Succession, and the 2020 Elections: What the Constitution Says

         President Trump has the coronavirus.  While all should wish him well, one still has to think about

what happens if: 1)  he is incapacitated and unable to perform his duties as president; or 2) his health precludes him from continuing as a candidate for president of the United States.  What happens?

            The simple answer is that the presidential succession issue is easier to handle than is the election issue.  By that, addressing the issues of an incapacitated President Trump are easier to handle than that of an  incapacitated candidate Trump. Let’s review the law.

Presidential Incapacitation

            Section one of the Twentieth Amendment declares that a presidential term expires at noon on January 20.  This means that Donald Trump remains president until noon, January 20, 2021.   But what happens if he dies before that date?

            The Twenty-Fifth Amendment to the Constitution addresses this issue.    Section one is clear–in case of death or removal of the president the vice-president replaces him.

            But what if he does not die, but is incapacitated, such as very ill?  Section three of the Twenty-Fifth Amendment declares that if the president transmits to the Speaker of the House (Nancy Pelosi) and President Pro Temp of the Senate (Chuck Grassley) that he is unable to perform his duties, then the vice-president will serve as acting president.  This will happen until such time as the president again informs Pelosi and Grassley he is able to perform his duties again.

            But what if the president is too ill to communicate with the Speaker and the President Pro Temp of the Senate?    Here Section Four of the Twenty-Fifth Amendment addresses that.  It allows for a situation where if the vice-president and a majority of the principle officers of the executive departments (the cabinet) conclude the president cannot perform his duties, they will transmit a letter to the Speaker and President Pro Temp and the vice-president will serve as acting president until the president is again able to serve.

            But let us now say that the president and the vice-president die, or their offices are vacant.  What do we do?  If Pence becomes president he would remain so until January 20, 2021.  Section two of the Twenty-Fifth Amendment allows  him to nominate a new vice-president, subject to majority votes of both houses of Congress.

            If there are vacancies in the presidency and vice-presidency, the Presidential Succession Act of 1947 covers this.  The line of succession would first be Speaker of the House, then President Pro Temp of the Senate, and then the Secretary of State, Secretary of Treasury, and then to other prescribed cabinet positions.  The succession here would allow the person to become president until the end of the term on January 20, 2021.

 

Replacing the President as the Party Nominee

            What if Trump dies or can no longer serve as the Republican Party presidential nominee? Is Mike Pence the automatic nominee?  No.  The 2016 Rules of Republican National Committee (Rule 9) allow for the filling of a vacancy.  It does so by a vote by states in the RNC.  It could be that the committee picks Pence or someone else.  It is their decision.

 

 

Replacing Trump on the Ballot

            Replacing Trump on the ballot if he were to die or become incapacitated to run before the election is more complicated.  As of October 2, 2020, the US is 31 days before the November 3, election,  Ballots have been printed and millions have voted absentee or by mail. 

            First, there is the difficulty of getting Trump off the ballot and replacing him with the alternative Republican nominee.  At this point this is probably not possible with a November 3, election date.  The election cannot be postponed except by an act of Congress (law).  There is also a limit in terms of how long the election can be postponed because the Constitution ends congressional terms of January 3, the presidential term on January 20.

            The other problem is that  millions have already voted, and perhaps for Trump.  If he is dead do votes for him automatically transfer over th the new Republican candidate?  Not necessarily.  This is a matter of state election law.  Back in 2002 when Senator Paul Wellstone died 11 days before the election day for his seat approximately 25,000 absentee ballots had been cast.  The court in Minnesota Supreme Court ruled in Kiffmeyer v Erlandson that it would be a denial of the right to vote to automatically transfer the votes from Wellstone to his replacement Walter Mondale.  Other states may reach different conclusions but the issue on how to handle the ballot transfer or qualification issues is a matter of state election law that differs across all 50 states.

            The question is if Trump is no longer on the ticket but still on the ballot, how should the electors cast their ballots?  Several states have “faithless electors” laws that compel them to vote for the person who won the popular vote in the state.  If Trump’s name was still on the ballot the electors may still be required to vote for him, even if he were not alive.

 

Death after the Election

            Assume Trump wins the election, what happens if he were to die after November 3?  A lot depends on when he dies.

            Remember, if he dies after the election but before January 20, 2021, Pence becomes president to complete the existing term.  But who gets sworn in for the new term starting on January 20, 2021? Section three of the Twentieth Amendment partially covers this.

            Assume the president has died after December 14.  Why?  That is the date the electoral college meets.  If it has met and the Trump-Pence ticket received the required 270 electoral votes, then Pence would become president on January 20.

            If Trump died after November 3, but before December 14, then one would need to see how the electors vote.  If Trump-Pence win 270 then Pence presumably becomes president. But it is also possible that the electors could cast their ballot for someone else in state without the faithless elector law, or perhaps they would still be required to vote for Trump.

            Finally, assume no one received the required 270 electoral votes as a result of all this.  What happens?  The Constitution (Article II and the 12^th Amendment) state that the new House of Representatives elected this November and taking office January 3, 2021 would select the next president.  Here, each state would get one vote and it would take a majority of states to select the next president.

 

Conclusion

 

 

            The US is in historically uncharted territory right now.  This does not mean a crisis.  There are some law that covers what may happen next but it may not address all contingencies.

The Pornofication of the 2020 Election

 American democracy  is threatened, but not for the reasons  depicted in recent election law porn. 

Donald Trump’s comments about mail-in-voting being rift with fraud or his refusal to respect a peaceful transition of power if he loses, while troubling, are merely a symptom of deeper  problems plaguing American democracy.

            Election law porn is the journalistic de jour theme of the corporate media now.  Recent articles in The Atlantic and The Guardian describe the 2020 elections as make or break for American democracy.  The New York Times and the Washington Post writers decry Trump’s threat to the United States and how he plans to steal an election.  Other articles tell of plots by Republican state legislatures to take away the popular vote and directly award the electoral votes to Trump.  All of these stories appeal to the fear, paranoia, and conspiratorial insecurities of Democrats, looking for reasons why Trump will win and Biden lose.  These articles represent bad journalism but are good clickbait business—they get readers to look at them, titillating their anger and arousing angst.  They are election law porn meant to hook readers.

These articles first feed into the Trump narrative.  For nearly five years the corporate media has profited over coverage of  Trump.  It gave him undue $5 billion free media coverage in 2015-2016 because it was profitable to do so.  It continues to cover ever one of his Tweets and statements he makes even though the mainstream media such as the Washington Post acknowledges that the president is a serial liar. His lies are brilliant diversions that set the political agenda.  Criticize the president about his handling of the pandemic and he talks of fraudulent vote by mail.  Ask him about health care and he will talk about not accepting  the results of an election or agreeing to a peaceful transition of power if he loses.  Simultaneously the press and the public—mostly Democrats—take every word he utters as a lie and as literal truth.  Take a lot of what he says, as Hermann and Chomsky declared in Manufacturing Consent, as part of a propaganda machinery in a symbiotic relationship between him and the corporate media where the latter takes what the former says and delivers it in a way to sell news and divert the public from the real problems.  Here the real problem is what is wrong with American democracy.

As noted above, among the more recent manifestations of election law porn is that Republican legislatures will force delays in vote counts or otherwise take actions to directly award electoral votes to Donald Trump as a way to ensure his victory.  Great conspiracy, thin reality.

The Constitution does ultimately allow state legislatures to pick the electors who pick the president.  Our popular votes for president to select the electors are a product of state law which theoretically can be changed.  Yet in reality it would be difficult and probably not make a difference. According to Ballotpedia, there are 36 states where one party has a trifecta where it controls both houses of the legislature and the governor’s office.  Of those 36, Democrats have 15 trifectas, Republicans 21.  Of those 21 states, only two—Florida and Arizona, are swing states where Joe Biden has a chance to win.  Perhaps maybe three if Ohio is still a swing state. The remainder of the states where Republicans hold a trifecta are ones Trump is going to win anyhow.  Of the real swing states in play—Michigan, Minnesota, North Carolina, Pennsylvania, and Wisconsin, there is no trifecta and therefore Republicans could not change the law to pick the electors.  If Biden loses the election by losing in these swing states  it is plausible  he will do so simply because he ran a lackluster campaign  or the voting demographics in these states were against him.

Yes, there are additional and legitimate fears that this election will be close and  in some states there will be allegations of vote tampering and miscounts.  One should not minimize these as issues, but again they are diversions away from the more systematic and deeper problems facing  American democracy.

The United States is a troubled democracy.  Even before Donald Trump it faced problems.  Its gap between the rich and poor is among the highest compared to other western-style democracies with wealth and income concentrating into fewer and fewer hands..  It has a troubled legacy and history of race that goes back to the settlement and founding of the country.  The criminal justice, education, and health care systems  reveal huge racial disparities.  The death of George Floyd and the causalities of the pandemic are   reminders of this.

America has the lowest voter turnout among its peers, with the electorate stratified by race and income.  Its neo-liberal style election system has reduced democracy down to the right of the few wealthy donors to spend unlimited money to influence elections.  Corporate interests spend billions to lobby, and  the 50-state patchwork of election rules and eligibility requirements have already  disenfranchised millions.  All of this occurred before Donald Trump and perhaps made his election possible.

Donald Trump is a product of an American democracy that was failing before he was elected.  The 2020 elections have brought home those failures,  but even if Biden were to win the problems will not go away because they are more than about Donald Trump.  His policies have exacerbated a challenged democracy and perhaps made them worse, but the root of them is deeper than him and it will take more than a Biden victory or hand wringing sensationalism by election law porn to fix them.

 

Biden versus Trump: A Tale of Two Americas

  The US Republican and Democratic Party national conventions are over.  Donald Trump and Joe

Biden are the official presidential nominees for the two parties.  In their acceptance speeches they 

define this election as a good versus evil, us versus them vision.   The stage is set for one of the most dramatic, polarized, and divided elections in recent American history. If the election were held today polls suggest Joe Biden would win. But there are still two months until the November 3, election. The end result is not certain.  It will be only a handful of voters in a few states that will decide the election.  All this shows how divided America is.

Joe Biden and Donald Trump closed their respective party conventions with the acceptance speeches.  These speeches defined their campaign themes and visions for America.  For both candidates, the central theme was defining the choice in polarizing terms, painting the other side as evil.  For Biden, his most memorable description of Trump and the election was to declare:

America is at an inflection point. A time of real peril, but of extraordinary possibilities. We can choose the path of becoming angrier, less hopeful, and more divided. A path of shadow and suspicion. Or we can choose a different path, and together, take this chance to heal, to be reborn, to unite. A path of hope and light. This is a life-changing election that will determine America's future for a very long time. Character is on the ballot. Compassion is on the ballot. Decency, science, democracy. They are all on the ballot. Who we are as a nation. What we stand for. And, most importantly, who we want to be. That's all on the ballot. And the choice could not be clearer.

Similarly, Trump stated of Biden and the election that:

At no time before have voters faced a clearer choice between the parties, two visions, two philosophies or two agendas.  This election will decide whether we save the American dream or whether we allow a socialist agenda to demolish our cherished destiny...And this election will decide whether we will defend the American way of life or whether we will allow a radical movement to completely dismantle and destroy it.

The two speeches were more similar in ways than few recognized.  Both invoked God, light, and goodness for their side, casting the other as evil, dark, and destructive.  Both sides invoked fear of the other.  Both defined the choice as all or nothing, a battle for the soul of America.  They gave a speech that was short in emphasizing policy proposals and specifics, a speech that aimed more to divide than unite –despite claims to the contrary–and a speech that was aimed mostly at their political bases, with hope that the few remaining swing voters would not vote for the opponent.  The speeches demonstrated the American divide and the difficulty of reconciliation after the voting is done. 

Yes, there were critical differences in the two speeches.  Trump lied more than Biden, or at least destroyed the facts more than the latter. Biden sought to speak to a far more diverse base of voters that included young people, people of color, urban, college-educated, and especially suburban women.  These voters are more divided than Trump’s, the latter of whom are mostly white, male, older, rural, and lacking a college education.  Biden’s supporters are less motivated to vote for him than Trump’s supporters are for their candidate.  Biden’s supporters see in George Floyd and the pandemic the need to address racial justice and health care, for Trump’s base it is the need for law and order and to close the borders to protect the country against immigrants and foreign influence.

In short, Biden and Trump gave the speeches both wanted and needed to deliver.  Both needed to motivate their bases and mostly did that.  Biden needs the swing voters and reached out to them, Trump less needs them to vote for them than not vote for Biden.  Both in their tales of two Americas set the stage for what promises to be a very close election in the electoral college. The election will be won or lost by the movement of a few voters in just seven states–Arizona, Michigan, Minnesota, North Carolina, Pennsylvania, and Wisconsin–where a few voters will decide whom they are afraid of most and which vision of America they accept.

If the US Presidential Election Were Held Today

If the US presidential election were held today polls suggest Joe Biden would be elected.  Not only would it be a landslide popular vote victory but he would win a clear electoral college decision.  Right now the Economist gives  Joe Biden a 93% chance of winning.

            But the election is not today.  It is still nearly four months out.   Surveys or polls are not predictions, they are snapshots in time and are no guarantee of the future.  Additionally, national polls are worthless when it comes to presidential elections.  It is not that they are usually wrong—they did predict Hillary Clinton would win by about two percentage points in 2016 and she did.  But instead the road to the White House is through the electoral college and the only polls that really matter if at all are the ones in the critical swing states they will decide the election.  What happens in Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin is a lot more important than what happens in California, New York, or Alabama.  Despite how much Democrats are salivating, realistically Georgia and Texas, while competitive, are not swing states. At best, forcing Trump to defend these states means less resources for the states really in play.  For Democrats, don’t repeat the mistakes of 2016 and campaign where there is no realistic prospect of winning. 

A lot can happen between now and election days, with it then either being November 3, 2020 (actual election day) or in the case of some states such as Minnesota, when as early as September 19, 2020 early voting  takes place.  Approximately 38 states allow some absentee or early voting, complicating predictions because ballots are being cast over a period of many days or weeks.

Political scientists develop models to predict presidential elections.  Central to the models are presidential approval and national economic performance several months before the election.  Based on these variables Donald Trump should lose.  But these models too are flawed in that they overlook the finery of the swing states and the electoral college and they also seem to ignore the fact that campaigns really matter.   Hillary Clinton should have won  four years ago but ran a lousy  campaign.  In 1988 Michael Dukakis at one time had a 17-point lead over George Bush but lost because of bad campaigning, complacency, and race-baiting  (remember Willie Horton) by the latter.

The point is that four months until November 3, is an eternity.  Four months ago, was mid-March, just before the pandemic  kicked in.  The US economy was at 4.4% unemployment for March, up from 3.5% in February.  Joe Biden was struggling to shake off Bernie Sanders for the Democratic Party nomination and it still looked like Trump was favored to win re-election.  The major issue—beyond Trump himself—was the fallout from the Senate trial and failed impeachment.

Since then everything and nothing has changed.  By that, this election was always going to be about Trump.  Unlike in 2016 where the election was a referendum on Hillary Clinton and she lost because people did not like her, in 2018 and now in 2020 the election is a referendum on Trump.  The pandemic and the economy have and have not changed that.  Yes, they have changed  the election  in that they are now issues and voters are judging Trump on how he is handling both. Evidence suggests his mishandling of them are impacting some support among his base. But they have changed nothing in the sense they both issues are merely surrogates for how voters think or feel about  Trump.

Think about it.  It has taken double-digit unemployment, a record crash of the economy, and 3,500,000 infections and 138,000 deaths to change the political dynamics of the 2020 presidential election.  Without the pandemic and the collateral damage, it has impacted on the economy, Biden might have had little chance of winning. Even  now, while the models say Trump will certainly lose, variables such as  changes in the economy, a lull in the pandemic, a horrible Biden campaign, or a ramped-up on steroids racial appeal by Trump that makes Willie Horton look tame.  And Democratic Party control of the Senate is not certain.

It takes a lot to defeat a sitting president.  Bush lost in 1992 because of a three-way split in the vote with Ross Perot running as a strong third-party candidate.  Prior to that, Jimmy Carter in 1980 lost to Ronald Reagan and in 1976 Carter defeated Gerald Ford.  In both those cases sitting incumbents lost because of extraordinary circumstances (1980 it was  the Iran Hostage crisis and oil embargo and in 1976 the Watergate backlash the pardoning of Richard Nixon). Prior to that it was in 1932 the last time a sitting presidential lost in a general election and that was when the Great Depression brought down Herbert Hoover to Franklin Roosevelt.  Only five incumbents have failed to win a second term.

            Trump is highly vulnerable but this is an extraordinary election.  Partisanship or polarization is so high it is, as noted, taking a national emergency a catastrophe to even begin to melt his base.  Voting in the age of Covid-19 might produce  distorted results that could change the election.  Already the litigation and court fights over early voting or voting rights portend how fragile franchise rights are and how the Supreme Court may impact how the 2020 elections are held.

            If the 2020 presidential election were held today arguably Joe Biden would win.  But it is not being held today and if history tells  us anything, a lot can still change, especially at the electoral college level, between now and November 3.

Trump and the Logic of Racializing of Covid-19 (Blame it on the Immigrants)

There are four truths regarding the United States.  One is that it is a nation of immigrants. Two, it is perhaps the hardest hit country in the world with the coronarius.   Three, it is the richest  nation in the world.  Four, there is a US presidential election this year. Put these  four truths together and what do you get in an America under President Donald Trump?  An effort to blame the spread of Covid-19 on immigrants and immigration, thereby racializing the pandemic to hide his mismanagement of the crisis.
The United States is a nation of others.  No one, except for the original Indians, is native here.  Everybody came from somewhere else.  America sees itself as a melting pot of races, ethnic groups, religions, and nations.  Its history is one of welcoming, as it says on the Statute of Liberty in New York–”your tired, your poor,  your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.”  The US is a nation of others, of strangers who have come for the American Dream.
Reports document that the US already has had more than 800,000 infected with the coronarius, with nearly 50,000 dead.  In a nation so wealthy and powerful, many wonder how it could happen, placing  blame on President Donald Trump’s initial refusal to acknowledge the disease, and then his failure of leadership in confronting it.  As a result, Trump’s approval ratings have gone down, potentially threatening his chances at re-election this November.
Don’t count Trump out yet.    Instead of taking responsibility for the US pandemic, he is replaying his trick from four years ago, blame it on the other.  Four years he successfully ran for president by promising to build a wall along America’s Mexican border to halt immigration.  He called immigrants rapists, murderers, and drug dealers.  He attacked Muslims and sought to halt their immigration.  Trump ran on racism.  Now he is doing it again.
First Trump called the coronarius the “China Virus.”  He blames leaders in China for lying about the virus, says the World Health Organization for incompetence, and now he wants to halt immigration to the US for 60 days.  Obviously the coronarius is not our fault; it is the fault of others.  Trump is linking the coronarius to race and immigration much in the same way that four years ago he connected crime and the economy to race and immigration.
Yes in the past America screened immigrants who had health problems or infectious diseases and it might be legitimate to do that now.  But that is not what Trump is doing with the 60-day immigration ban.  In fact, the ban has a lot of exceptions to it and it is also not clear the president has the authority to issue the ban anyhow.  Instead, simply announcing the ban, like calling for the wall, is enough.  For his supporters, shifting the cause of the pandemic and the shutdown of the economy to immigrants is no different from what he said and did four years ago and it got him elected.  It might work again in 2020.

Covid-19 and the Presidential Election: What if the States Picked the Electoral College Delegates?

What if we held a presidential election but  no one came?  The April  7, Wisconsin primary demonstrated the problems that occur when the right to vote and demands of presidential elections confront the reality of Covid-19 and shelter-in-place orders.  What if the coronavirus persists to the general election, impacting the ability of individuals to early vote or cast a ballot on November 3?  Ultimately, the states could select the presidential electors, or Congress could pick the president.  If so, who wins?

            Many worry about several presidential election scenarios.  One is that President Trump will postpone or cancel it.  Alone he cannot do that  because the date of federal elections is set by law as the first Tuesday following the first Monday in November.  Alone the president cannot cancel or move this date, unless somehow the Supreme Court would rule that the National Emergencies Act would allow him to override a law.  If it did, the Court would be going against the Wisconsin Supreme Court’s logic when it prevented Wisconsin Governor Tony Evers from issuing an executive order delaying the elections, ruling that the emergency powers given to him only allowed a setting aside of administrative rules and not statutes.

            Postposing the presidential election also does not work for constitutional reasons.  Section One of the Twentieth Amendment states that the term of the president shall end at noon on January 20.  If there is no election there is no president or vice-president after that date, with the vacancy then filled by then Article II, Section One, Clause 6 of the Constitution along with the Presidential Succession Act that would hand the presidency to the Speaker of the House, presumably Nancy Pelosi.

            Others have proposed expanding vote by mail as an option for 2020.  Congress is unlikely for partisan reasons to approve this, and even if it did it is not clear if all states have the infrastructure or capability to implement in time.  There are also questions about security, potential fraud, and the federal government overruling state election bureaus and telling them how to administer federal elections.

            There is one final failsafe—instead of holding elections to chose the presidential elections to pick the president, the states can go back and do what they originally did and what the Constitution allows—pick the electors themselves.

            Article II, Section One, Paragraph two entrusts to  state legislatures the authority to select the presidential electors.  As the Supreme Court reminded America in Bush v. Gore:  The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  It is merely by the grace of  state law we get to vote to select the electors who pick the president.  But nothing requires this, and presidential elections in the age of Covid-19 means state legislatures, in a public health crisis, could simply select the electors themselves.

            While letting state legislatures pick the electors may not be a good idea, consider what would happen if they did. It takes 270 electoral votes to win the presidency.  According to  Ballotpedia, there are 21 states where Republicans have a trifecta—controlling both houses of the legislature and the governorship—and Democrats have that in 15 states.  Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216, Joe Biden, the presumptive Democratic nominee, would have 195.  This leaves 14 states, with 127 electoral votes under split control.  These states are: Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin.  Again, according to Ballotpedia, of these 14 states, there are several where the legislatures have large enough majorities that they can override  the governor.

This means  move Kansas’ and Kentucky’s electoral votes to Trump since the Republicans control both house of the legislature and a simple majority can overrule the Democratic governor, and he  has 230.  Move  Maryland and Massachusetts to Biden along with  District of Columbia’s three electoral votes and he has 216.  This leaves 10 states, with 92 electoral votes under split control.

How might those remaining states vote?  Assume a compromise in each state where they allocated proportionally based on congressional districts and splitting the two electoral votes each state receives based on having two senators.  This adds ten electoral votes to each (Trump 240, Biden 226).  Now assume the distribution of electoral votes in these remaining ten states follows the congressional voting patterns in 2016.  Of these 72 districts, Trump won 50 in 2016 and Clinton  won 22.  Award these  the same to Trump and Biden and  2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these ten states cannot hold November 3, elections and cannot reach a compromise on  how to award the electoral votes.  With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section One, Paragraph Three and the Twelfth Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states.  However, this is the House elected in November 2020, and they would not vote until sworn in, in January 2020. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  Assume no shift in partisan control, Trump wins. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario.  But were it to occur the odds presently favor a Trump victory again in the electoral college, or  possibly in the House were it to go that far.