President-Elect Biden? Yeah, Probably. But Not Definitely.
November 8, 2020 1:13pm
Who won the 2020 presidential election? Donald Trump thinks he won. Joe Biden thinks he won. And the media has declared Joe Biden to be the winner. But nobody really knows who will be inaugurated on January 20th because the vote counts in Pennsylvania, Michigan, Wisconsin, North Carolina, Georgia, Arizona, and Nevada are not final. Actually, the vote counts are not final in any state. The soft deadline for certifying the vote count is December 8th. And the hard deadline isn't until December 14th. That's the day electors cast their votes in the Electoral College.
But the votes in all the states I mentioned above are very close. Some will have recounts. And allegations of irregularities or fraud in Pennsylvania, Michigan, Wisconsin, and Nevada are compelling enough to call their existing counts into question in the courts. And that is exactly the avenue to victory President Trump is pursuing. We he prevail? I doubt it. But since it's not impossible, it is premature to declare that Joe Biden won. Of course, it is also absurd for Donald Trump to claim that he won.
Was there voter fraud? Absolutely. There is always some voter fraud. The question is, was it widespread enough to have possibly changed the outcome? (as has been proven in eight recent local elections).
What kinds of fraud are being alleged?
Some people are claiming that Wisconsin had more votes than registered voters. That is not accurate. Those making the allegation used the pre-election day count of registered voters to calculate turnout. But Wisconsin has same day voter registration, and tens of thousands of people registered to vote and voted on election day. When turnout is calculated with that number of voters, it does not exceed 100%.
Biden's vote count in Michigan jumped by 138,000 votes without a single increase in Trump's vote count, and many Trump supporters cried foul. But election officials say it was the result of a correction made to a data entry error. And that explanation seems reasonable.
Also in Michigan, there is a lawsuit alleging that spoiled ballots were being duplicated without Republican observers present. That would be very illegal if true. But is it true? I don't know.
There was a notable problem with the vote tally in Antrim County, Michigan. In 2016, Trump won 62% of the vote in Antrim County. But this year he only got 41%. That's an impossible swing, so Republicans cried foul, elections official recounted, and Trump actually won with 56.5% of the vote. I'm not saying there was anything nefarious about it. But it's things like that that call the legitimacy of the count into question.
Some voters in Arizona sued because they were given Sharpies to complete their ballots instead of being given ball point pens. And their Sharpie marks bled through to the back of the ballots. But the issue is whether or not that bleed-through would cause the tabulators to not read their votes. Election officials say it didn't. And the lawsuit has already been dropped. It wasn't dismissed by a judge. It was dropped by the plaintiffs.
Nevada had problems with poll watchers not being allowed to observe to vote count. Plus, Nevada had universal mail in balloting. And although it was implemented through the constitutional legislative process, it still resulted in thousands of ballots being sent to dead people and people who no longer reside in Nevada, all of whom were obviously ineligible. Many of those ineligible ballots were completed, returned, and counted. Mailed ballots were also accepted for counting after the lawful deadline has passed.
Poll watchers in Pennsylvania were not allowed to observe the tabulation. And even after a court ordered election officials to allow access, they didn't fully comply. That made it very difficult to observe what was actually happening. Why wouldn't they allow the counting process to be observed? I was an appointed official observer in the Florida recount of 2018, so I know what observers are supposed to see. We were not auditors for each ballot. But we could see every ballot being processed and could ask questions if we noticed an anomaly. Equal and unfettered access by observers is critical to both the integrity of the count and to the public's acceptance that the tabulation process was objective and lawful.
Another allegation of procedural malfeasance in Pennsylvania is that some election officials notified Democrat operatives of mailed-in ballots that contained errors which would prevent them from being counted. And those operatives were given a list of who those invalid ballots belonged to. So the Democrats got the voters to correct them. While I do believe voters should be given an opportunity to correct procedural mistakes they make, Pennsylvania law does not allow it! And not all counties offered it! And in the counties that did, only Democrats were given the opportunity to correct their ballots! That is a huge violation of the due process and equal protection clauses of the U.S. Constitution. The U.S. Supreme Court was very clear that the tabulation process had to be universal across the entire state . It was the primary reason they decided Bush v. Gore as they did.
Also in Pennsylvania, the law requires mailed in ballots to arrive by the time the polls close. But the Pennsylvania Supreme Court, in direct contravention of the law, ordered that late ballots - even those without any postmark showing proof that they were put into the postal system before polls closed - had to be accepted. The U.S. Supreme Court refused to intervene in that, which I think was a mistake. There are also allegations that postal workers were back-dating postmarks in areas dominated by Democrats.
If tainted ballots in those states were commingled with proper ballots, there is no way to go back and remove those votes. The ballot pool has been contaminated and there is no way to decontaminate it. We can't just assume that every fraudulent vote was for Biden and remove that many from Biden's count, even though it is certain that the vast majority were for Biden because the overwhelming percentage of voter fraud that occurs is committed by Democrats.
Other allegations of improprieties and violations of election law are too numerous to mention them all here. But are they sufficient to justify the courts invalidating the entire vote counts of the affected states? Probably not. But Donald Trump has the right to seek it.
In the extremely unlikely event that the courts did throw out the results, it wouldn't result in a redo. The legislatures of the affected states would choose their state's electors. It's not crazy or far-fetched. That's what the Constitution allows. In 2000 with Bush v. Gore, the Florida legislature was prepared to throw out the people's vote and choose Florida's electors themselves. The reason they didn't is not because they lacked the constitutional authority; they had that. They didn't do it because the vote count was not invalidated. The recount simply stopped. Michigan, Wisconsin, Pennsylvania, North Carolina, Georgia, and Arizona all have Republican majorities in both chambers of their legislatures.
What would happen if that occurred? Well, Congress could refuse to accept those electors' Electoral College votes on January 6th when they're tabulated in a joint session of the new congress. But the House and Senate would BOTH have to vote to reject them, and that is extremely unlikely. But if they were rejected, that would probably mean nobody would reach the 270 Electoral College votes necessary to win. And that would put the decision in the hands of Congress. The House of Representatives would choose the President, and the Senate would choose the Vice-President. That would result in a Trump/Pence victory.
Assuming votes are along party lines, the Senate would choose Pence because the Republicans will have a 50 - 48 majority on January 6th. The House of Representatives, despite having a Democrat majority, would choose Trump. Because in such a vote, each Representative doesn't get a vote. Each state delegation gets one vote. And Republicans have majorities in 26 states (both currently and after the new Congress is sworn in on January 3rd).
So will we have a President Biden next year? Yeah, probably. But this is 2020, a year in which even the impossible is possible.