OP-ED: Biden’s burden: Conflict over the election

I have discussed on several occasions potential conflicts over the election results. Now the voting results are more or less known, and Trump is disputing the outcome. There are many plots and arguments about what is going on, and this column has discussed some of these in the past.  

There are three things that we can be confident about:

• Trump does not want to admit that he lost and is determined to maintain the fiction that the election was stolen. To stroke his ego, he has lawyers bringing cases to expose the fraud and errors in the election. He continues to tweet that he won, and the election is being stolen. His supporters seem to believe him.
• No evidence of systemic fraud in the election has been identified. Biden won the election, both the total votes cast and the voting in the Electoral College. Biden is the legitimate president of the United States as of January 20, 2021.
• In this election, there seems to have been very limited interference from other countries. All of the administrators of the election and their watchdogs at both the federal and local levels claim that the election was secure. The objective of the Russian government was to undermine the American political system, not to get Trump re-elected; they were successful. The Chinese were uncertain as to what was good for them, and did not see who would be better.  

The only way that Biden will not become president is for the voting in the Electoral College to award the election to Trump through the intervention of the state legislatures sending electoral votes determined by the Republican majority of the legislatures rather than the results of the voting.  

The constitution assigns to the state legislatures the task of arranging the electors sent from the state to the Electoral College. Currently, every state has a law that chooses the electors on the basis of the vote within the state; normally the governor has the responsibility for this.    

I believe that if the Republican leadership of a state, take Michigan as an example, wanted to appoint the electors ignoring the voting results, they would need to pass a law replacing the existing law and giving the power to themselves.  

The process of passing such a law in a short time allowing for a veto by the governor (the problems arise only when the governor and the state legislature are at odds) and the subsequent overriding of the veto would take too long. There is no reporting indicating that the Republican Party in any of the critical states has begun such actions. 

In addition, it is unlikely that the state legislature would take such action in the absence of compelling evidence of major errors in the counting or in the conduct of the election. I do not think that Trump and friends will be able to maneuver any of the key states to by-pass the election results. Even doing one state is difficult, achieving such a result in four states seems impossible.

After the votes are counted, checked, and disputes resolved, the voting authorities in the state certify the results of the voting. If this is achieved on or before December 8, the so called safe-haven date, then certification fixes the results and the Congress or courts cannot change the certified results.  

The states submit their results on the Electoral College to Congress by December 16.  

If there is a conflict such as two slates of persons selected for the Electoral College submitted to Congress, then Congress has to untangle this. Recall what is going on here. Each state has a number of electoral votes equal to the number of members of the House of Representatives plus two (the number of senators, the same for each state).  The District of Columbia is not a state, but it has three votes in the Electoral College. (Three is the minimum votes a state can have for the Electoral College, arising from one seat in the House and two senators. Wyoming for example has three votes.) 

The rules for the voting are set by the state. Consider Georgia with 16 votes; if the Republican candidate gets the most votes of all the candidates for president, then the Republican candidate gets all 16 votes. Only two states divide the electoral votes among the presidential candidates according to some rule. The other 48 follow a “winner take all” rule. 

The problems arise if a state cannot finalize the certification of the voting outcome as would happen if there were two slates of electors, one from the state legislature and one from the governor (reporting the voting results). If there are conflicting slates of electors, then the question is how to resolve this dispute.  

This last occurred in 1960, when Hawaii submitted three certified slates of electors. Two were from the governor certifying first the Republicans winning, and then a second that the Democrats had won (as a recount determined). The third was issued for the Democrat’s slate through the action of the Hawaiian state legislature.

Nixon, the Republican candidate, was also vice president and presided over the Senate. He approved the certification for the Democrats. It made no difference to the final outcome and no one could accuse him of favouritism.  Ironically, when the multiple slate problem actually arose, the outcome was wrong.

If the House and the Senate separately are in agreement of which slate to accept, that settles the issue. If the two congressional bodies are not in agreement, then the governor’s slate is to be accepted. Under present circumstances, this means that the slates of electors that are submitted by the governors be counted, and Biden would win.  

We emphasize that it is unlikely to reach such a point. It is also possible that the conflicts could not be resolved by January 20 and that Nancy Pelosi, the speaker of the House, would become president, pending all this being untangled.

The other potential outcome is that unresolved conflicts would lead to the selection of the president through the House of Representatives. This could occur if no candidate receives 270 votes or more in the Electoral College. Under the newly elected House, this will result in Biden becoming president. (Under the outgoing House, Trump would win).  

The selection of the vice president is left to a vote of the Senate. This would probably result in Pence being elected to continue in his present position. We would then have the president and the vice-president from different political parties! 

This is good material for a conspiracy theory aimed at keeping women or minorities out of the top levels of the American government. 

Everyone likes to write about the possible amazing outcomes to this election. But the 2020 election affairs will certainly end quietly. The Electoral College votes will follow the present breakdown; no successful challenges will be maintained. Trump will leave the White House by January 20. He will complain now and for years that the election was stolen and that he was the legitimate winner. 

Trump’s future is uncertain. There are many legal and financial problems facing him. He will continue to tweet and give his views to one and all who will listen; but his followers will gradually decline in number. Some persons say that Trump will run for president again in 2024. That date is far away.  

Biden’s administration will face the issue of accountability of the Trump administration for their alleged misdeeds. Six areas where accountability may be an issue are:

• The treatment of children in families attempting to immigrate into the United States.
• The mismanagement of the response to the pandemic, including the attempt to downplay the severity, and failure to take reasonable precautions in military units, celebrations, and political rallies.
• The role of the treasury in the distribution of loans through the various stimulus programs. There are reports of favouritism in such awards. There has been limited transparency, so detailed assessment has not yet been conducted. 
• The use of favours of grants and loans to foreign governments demanding compensation in non-monetary terms. This is what Trump did in his dealings with the Ukraine.
• The use of government facilities for political purposes and violations of the law against government officers engaging in political activity.
• Trump’s receipt of financial benefits from foreign governments and the US government, unnecessarily making use of Trump’s hospitality facilities.

We should take a sympathetic view of Trump.  Psychologists have largely agreed that Trump suffers from a narcissistic personality disorder. There is evidence of this throughout his life. This is a well-known mental disease and calls for treatment. Trump has used his financial resources to barricade himself from seeking treatment. Trump cannot really control his behaviour.

The failure here is not Trump’s, but the Cabinet failing to recognize his condition and replace him with Pence.

Forrest Cookson is an economist who has served as the first president of AmCham and has been a consultant for the Bangladesh Bureau of Statistics.