The sign-up of voter representatives in the Electoral College has made the win by Joe Biden, Democratic Party candidate for the U.S. Presidency, more certain than ever.
The meetings of delegates to the College and registering of their pledged allegiances has conquered one huge hurdle — and the idea of a final, last-ditch hurdle within Congress is also looking very weak.
As everybody knows by now, the U.S. Presidential Election last month was to choose a slate of delegates in each state, representing either Biden or his Republican opponent Donald Trump. Once a state’s final count was certified, the winning team of delegates would go on to vote for their man in the College. On the day, all reports said Biden got the expected 306 college votes and Trump 232.
Yet, we have seen a rearguard action against this smooth process, put up by Trump, his party and his lawyer Rudolph Giuliani — now down with COVID-19 and who has himself become a sideshow almost as colourful and crazy as his client. Amid the bumbling and bombast, English comic Sacha Baron Cohen did a job on Giuliani as his alter-ego Borat, catching him with his hand in his trousers, “adjusting them”, while confronted by an undercover girl comedian. Baron Cohen says that he rushed the film into distribution in time for the Presidential Election to do some harm.
The Republican rearguard campaign has been seen as so doomed, as regards ever changing the election outcome, its main reason might be just to try and delegitimise the Democratic victory — in preparation for a perpetual, bitter campaign in opposition. Yet the two old gents in charge and their party friends have continued acting serious, inventing pathways towards some miraculous turn-around.
Pathway one: Going to court again and again
The litigation pathway. There were over 50 court applications to have results of the balloting overturned in certain states. More than 30 of these were withdrawn or dismissed due to lack of evidence meeting court. Virtually all legal opinion says any still outstanding also will fail.
Donald Trump did cling to the hope they might be progressed to the Supreme Court, where in office he’d planted two Right-wing ideologues as Judges — Brett Kavanaugh and Amy Coney Barrett. That hope was dashed on the weekend of 12 December when the Supreme Court dismissed an application by 18 conservative states to have results overturned in four states won by Biden: Georgia, Michigan, Pennsylvania and Wisconsin. The legal system has held out against all the political pressure.
Pathway two: Causing delay and using bent state legislators
The two-step, cut-off day and “state legislatures” pathway. This scheme focused on six states won by Biden, where the vote had been close to some degree and where, except for Nevada, Republicans had majorities in the state legislatures: Arizona, Georgia, Michigan, Nevada, Pennsylvania, Wisconsin. The delaying tactics included both the court cases and demands for repeated recounts of votes. The idea was to prevent results in those states being officially declared, called “certified” by the statutory deadline, 8 December.
The quasi-legal thinking here was that the courts might give the Republicans what they got off the Supreme Court when George W. Bush was elected in 2000. The counting of votes in Florida had been botched by under-resourced state-based electoral machinery. The result was very close; the system could not get a recount done before the statutory deadline; the Supreme Court ruled that completion of the recount, therefore, could not be allowed; it interrupted the count with Bush one whisker, 537 votes, ahead and so Florida was won by Bush. In a close result nationally, it made him President.
In 2020, the Trump camp was thinking that if they could delay the vote in key states, missing the 8 December deadline, they might be able to invoke an old law that could then help them. Under that one, Republican-dominated state legislatures could pick a team of voters for the Electoral College who would be Republicans — replacing the Democrat ones picked by the public in their popular vote.
However, this two-step, cut-off-day and “state legislatures” pathway also failed. State electoral officials and also most of the legislators saw it as their job under the law and as part of democracy just to process the Election results accurately and declare the winner. So all states did certify their results in time (just one or two let in a day late).
Pathway three: Maybe corrupt the Electoral College?
The bent Electoral College pathway. Tactic number three, possible interference with the delegates to the Electoral College, might have been the most implausible one — but given the desperate behaviour of the losers, anything was likely.
Subverting the Electoral College is technically an option, because in 34 constituencies (33 states and Washington DC) out of 51, the delegates are free to vote against the party that nominated them for the Electoral College. In half of those cases, there is altogether no legal requirement imposed by their state governments to stop them changing over. For the remaining 17, while officially or legally bound to vote for their nominating party, there is no penalty or other mechanism to make them do it. Those 34 states with “free” delegates include 17 carried by Biden. Three of them are among ones earlier targeted by Trump and Giuliani: Georgia, Pennsylvania and Wisconsin.
Monday 14 December 2020 was the stand-out day, when the delegates for the respective states got together in their state capital cities and it could be seen which way they were slated to be voting. It’s a traditional defining moment, where their registration as delegates secures them in a so-called “safe haven” against moves in the U.S. Congress to dismiss them. The concern was, in the surly climate of 2020, the Democrat ones might come under pressure from cajoling, flattery, bribery, blackmail or threat, to get them to change to Republican.
In each election, there is always a small number called “unfaithful delegates” who go against their initial party commitment; only about ten out of the total 538. That very small base number showed the Republicans had no real chance of corrupting the vote. If they tried something, it didn’t work; they would have needed not just ten, but 38 deserters.
Pathway four: Troublemaking in Congress
The Congress pathway, written objections to voting outcomes — another loser for rearguard Republicans. The results from the Electoral College are to be counted at a joint sitting of the two houses of Congress, the Senate and Representatives, with Democrats in overall majority. That is to start on 6 January 2021.
The rules permit written objections from members to voting outcomes and it can get complicated, with objections from either house then taken off for separate debate in whichever house. Adding a complication, voting in a special election for the two Senate seats in Georgia ends on 5 January and the outcome will determine whether the Republicans have a Senate majority.
Once again, numbers look like being the ultimate decider against any turnaround: the Biden tally is too far ahead to get whittled away and even if there should be a deadlock, the House of Representatives, Democratic, would pick an interim President — none other than Nancy Pelosi, Speaker of that House.
The arithmetic, the expressed will of the voters turned into numbers, appears to close off pathway four. Predictably, arguments will have to dry up. The key to understanding Trump is to think of him as an infant, a nasty one, unable to get it if somebody else is using the sandpit. Donald Trump will either have to burn down the White House or leave the building in time for some obviously needed coronavirus cleaning and for President Biden to move in. Biden’s inauguration is scheduled for midday in Washington on 20 January.
Media editor Dr Lee Duffield is a former ABC foreign correspondent, political journalist and academic.
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