The nation has a new president-elect, Joe Biden. At the same time, there is no official president-elect, because the electoral process itself hasn't yet reached that point.
How can both these assertions be true? And if they are, how are Americans supposed to understand that? Most importantly, how can Americans of opposite parties get on the same page, so that we can move forward together as one country, as our new president-elect in his impressive victory speech is urging us to do?
When it comes to ending elections, there are actually two different processes at work, and they operate on different timelines.
The more familiar process is cultural. It's the pageantry of democracy, developed over decades of traditional rituals, which usually occur on election night. First, there come the projections of a winner, from the networks and other media outlets once a candidate has apparently achieved popular vote victories in enough states for an Electoral College majority.
Soon after those media projections are made, the losing candidate acknowledges the reality of the numbers and gives a public concession speech. The winning candidate, in turn, gives a victory speech and, as a practical matter, is president-elect.
All of that, however, is far ahead of the official process for bringing the election to a close. Election night tallies need to be converted into officially certified outcomes. This requires the canvassing of returns, when the preliminary tallies are verified and provisional ballots are included in the totals, along with military and overseas ballots and any others that cannot be counted immediately.
Recounts may be necessary. This doesn't necessarily mean there were problems. It can be just an extra step of verifying accuracy. The various verification measures, so salutary for the election's integrity, inevitably take days or even weeks. It depends on the laws of different states, and how much verification is needed in any particular election.
Until the final certification of the popular vote occurs in enough states for an Electoral College majority, there is not yet a president-elect in any official sense. Technically, under the Constitution, there can't be an official president-elect until the Electoral College actually casts its votes for president. That will happen this year on Monday, Dec. 14.
As Americans, we never want to wait that long to say we have a president-elect. It was hard enough this year to wait just four days for the media's unofficial projections of a winner.
This wait has been blamed mostly on Pennsylvania's failure to change its laws to permit early "pre-canvassing" of mailed ballots, in the way that Florida and other states allow. Pre-canvassing would have been good, but it would not have permitted an election night winner, even unofficially. Enough provisional ballots needed to be counted for the media to "call" the state, and provisional ballots by definition cannot be pre-canvassed.
In 2008, Missouri could not be "called" for two weeks because of provisional ballots, although most Americans ignored this fact because Missouri that year did not matter to reaching an Electoral College majority. This year, Arizona still hasn't been called by some outlets (and perhaps was called prematurely by others), even though it made the change to early pre-canvassing of mailed ballots advocated for Pennsylvania.
As difficult as it is, Americans need to get used to the fact that sometimes presidential elections will be "too close to call" for several days or even longer.
And what is the significance of these unofficial media "calls"?
Networks and newspapers immediately labeled Joe Biden "president-elect" as soon as they made their projections Saturday. That is their First Amendment right, although it has no governmental status. But it was the basis on which Biden gave his victory speech. — a victory that Trump defiantly will not acknowledge. Other elected Republicans are struggling with what to say.
GOP Senators, like Roy Blunt, are not wrong when they observe that there is still a legal process to play out. But they should do more to recognize, as Blunt himself signaled, that this legal process will end with the same conclusion as the media's unofficial projections.
Former President George W. Bush struck the right note when he congratulated Joe Biden as "president elect" while simultaneously acknowledging Trump's "right to request recounts and pursue legal challenges."
The problem is Trump's assertion of this right, based on all known facts. It is honorable to challenge an opponent's victory when there's a good-faith basis for doing so, but it is dishonorable when there's not.
Everyone knows that Trump will never be able to admit that Biden won fair-and-square. Because of this, it is essential that other Republicans do so.
While they can wait for the certification of results to say that Biden's victory is official, they cannot wait to repudiate efforts to discredit that victory.
The message now must be Bush's: the legal process, once complete, will confirm an outcome already "clear" and "fundamentally fair."
Edward B. Foley is professor of law and director of the election law program at The Ohio State University's Moritz College of Law. Read more from The Fulcrum's Election Dissection blog. A version of this essay ran previously on the Election Law Blog.
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President Trump is talking about "bedlam" — and even "violence in the streets" — if results aren't known on election night. In fact, he is trying to create bedlam where none exists. He's seeking to precipitate enough discord and doubt to cause citizens to disbelieve in the vote-counting process.
There should be no bedlam in the counting of ballots. It's a rather boring process, but it works very well.
For absentee and mailed ballots, election officials make sure that each ballot comes from an eligible and registered voter. That verification is a good thing; it assures the integrity of the election. That's something Trump and his fellow Republicans who are concerned about fraud should be supporting, not bemoaning.
The process will naturally take time, even days, because of the large number of mailed ballots this year as a result of the pandemic. There is nothing wrong about this. Waiting for official results is a feature of the system, not a bug.
Pennsylvania promises to be critical, if not decisive, to the race. There, voters can choose to submit their ballots by mail or vote in person. Under state law, mail-in ballots cannot be verified for counting until 7 a.m. on Tuesday. Trump now says voters should have "gotten their ballots" in "long before" Election Day. In fact, multitudes did just that. These ballots have been piling up waiting for this essential verification step to begin. It will take longer than just one night to process these millions of ballots. (This is why most states begin the processing days or weeks before Election Day.)
In addition, under a ruling by the Pennsylvania Supreme Court, the ballot deadline has been extended. As long as the ballots were cast and mailed by Election Day and get to officials three days later, they'll be counted. The U.S. Supreme Court has declined to disturb that ruling, at least for now.
Although this process is tedious and requires patience, there is nothing disorderly about it. The only "bedlam" will be if Trump manages to induce it.
It sounds as if Trump wants to derail the counting of ballots so that an accurate result can't be reached. That's the vote-counting version of Trump supporters trying to force a Biden campaign bus off the road. Never before has a sitting president openly called for a subversion of procedures in place for an orderly counting of ballots that citizens have a lawful right to cast.
Let's be clear about the cause of concern. I'm not especially worried when the president says "as soon as [the] election is over, we are going in with our lawyers." His lawyers must present evidence that will be evaluated on their merits according to the rule of law. That's how it should be.
In Texas, excessively litigious Republicans are attempting to disqualify more than 120,000 ballots already cast. I'm confident that the federal judiciary, like the state's, will reject this move as fundamentally unfair to the voters who did as they were instructed. But whatever the courts ultimately conclude, they will base their decision on appropriate rule-of-law values. That's all we can expect in a society that seeks to hold lawful elections.
Many are nervous about how the newly composed Supreme Court may decide any Trump v. Biden case involving the counting of ballots. I'm anxious about this, too. But the justices would be making their decision based on the merits. If the argument is genuinely sound in light of applicable legal principles, I think at least enough of them will listen.
What worries me more is the bedlam that Trump himself may cause outside the courts. The so-called "Brooks Brothers riot" in 2000 shut down the recount in Miami-Dade County. While I don't think it will be so easy to shut down the basic counting of ballots under state law, enough mischief could cause the process to run out of time. All state electors must cast their official votes for president on Monday, Dec. 14.
Apart from this risk, the gravest danger is throwing so much mud that the public gives up hope of knowing a fair and accurate result. Then a state legislature might try to repudiate the count of voters' ballots and appoint its own electors.
If the public doesn't believe the candidate with the most votes according to the official count of ballots actually won the race, the public will think the electoral system failed even when it worked.
That failure, solely based on the public's misperception of reality, would deprive voters of what the election is designed to produce: a winner that the people accept as their choice. The president's bedlam would have managed to negate self-government.
As Americans, regardless of party, we cannot let that happen.
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There is a collision of two tectonic plates occurring in the world of election law, and it is causing an earthquake in federal jurisprudence on absentee voting.
One of these tectonic plates is the so-called Anderson-Burdick balancing test. This has been the Supreme Court's basic framework for evaluating the general constitutionality of election procedures. Anderson involved the independent presidential candidacy of John Anderson in 1980 and, specifically, his claim that Ohio had an unconstitutionally early deadline for getting on the ballot. Anderson's claim prevailed.
Burdick involved Hawaii's prohibition against write-in votes. (The claim of unconstitutionality lost.) The court in that case built on its Anderson decision. It said that a court must weigh "the character and magnitude of the asserted injury" to First and 14th Amendment rights against the state's interests and justifications for "the burden imposed by its rule."
The Supreme Court most notably applied the Anderson-Burdick test in 2008 to Indiana's version of a voter identification law. It ruled (in a very fractured decision) that the law was not overly burdensome for most voters, but conceded that there might be some future cases in which voters could show specific hardship from having to comply.
The federal courts of appeal, meanwhile, busily applied Anderson-Burdick to myriad voting rules, including ones about absentee voting. For example, in 2012 President Barack Obama's reelection campaign sued Ohio because the Legislature gave military voters three more days of an "in-person" form of absentee voting than it gave to non-military voters. The Sixth Circuit employed Anderson-Burdick to find this disparate treatment unconstitutional.
The second tectonic plate is a 1969 Supreme Court precedent on absentee voting, McDonald v. Board of Election Commissioners of Chicago. That case involved inmates awaiting trial on criminal charges, for whom absentee voting was unavailable under state law. Chief Justice Earl Warren, while acknowledging the major voting rights precedents that the court under his leadership previously had issued — including his own one-person-one-vote opinion in Reynolds v. Sims — declared those precedents inapplicable to absentee voting.
Access of an absentee ballot, Warren wrote, was not the same as access to the "franchise" itself. Absentee voting was only a convenience, in the court's view, "to make voting more available to some groups who cannot easily get to the polls." Consequently, denying absentee ballots to this group of voters did not require "more exacting judicial scrutiny" than the minimal level of "rational basis" review.
The state could limit absentee voting to select groups if it wished. Other notable groups beside inmates — including "mothers with children who cannot afford a babysitter"—were also denied access to absentee voting under state law. The Legislature was entitled to proceed "one step at a time."
Although the Supreme Court has never repudiated McDonald, most followers of election law presumed that its reasoning had been superseded by Anderson-Burdick. Especially because the practice of absentee voting had evolved since 1969 — with many states offering "no excuse" absentee voting as a side-by-side option for voters who simply prefer it to traditional polling-place voting — the treatment of absentee voting in McDonald as an essentially discretionary add-on seemed antiquated and out-of-date. Instead, under Anderson-Burdick, burdens and restrictions on absentee voting — like deadlines and identification requirements — needed to be justified.
But something different has happened this year. Several circuit courts of appeal are treating McDonald, and not Anderson-Burdick, as the relevant precedent for review of absentee voting rules. The 5th Circuit, for example, invoked McDonald and its deferential "rational basis" test to uphold Texas's law that limits absentee voting to those aged 65 and older or those with specific medical conditions that do not include general susceptibility to Covid-19. The 7th Circuit has done the same with respect to Indiana's similarly restrictive absentee voting law.
The Supreme Court will need to sort out the conflict between these two lines of precedent. All across the country, hundreds of cases have been pursued this year on the assumption that Anderson-Burdick would govern the analysis, requiring states to justify any barriers voters face in absentee voting especially in light of pandemic conditions. But if McDonald governs, the assumption of all these lawsuits is incorrect, and the inquiry is altogether different.
There is no more significant issue under consideration in all the election-related litigation this year than settling this basic question: For absentee voting, what is the constitutional test?
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